Royal Media Services chairman Samuel Kamau Macharia has regained possession of a multi-million shillings property in Kwale after a protracted court battle with a private investor.
Environment and Lands Court judge Lucas Naikuni on February 17 allowed an application by Macharia, through Five Eleven Traders and Auctioneers, to evict a Polish businessman who had constructed a Sh200 million tourist hotel in the disputed 4.5-acre land.
“The court allows the application by the auctioneers to get police assistance in removing Ali Khan Muses and Estate Sonrisa Limited, who are illegally occupying the parcel of land, and give vacant possession to the legal owner,” ruled Naikuni.
The dispute dates back to 2014, when Macharia sued Muses and Estate Sonrisa Limited for encroaching his parcel number Galu/Kinondo/50 located in Ukunda, within Kwale County. Macharia told court that he acquired the property in May 1981 and was issued with a certificate of ownership for the property measuring 1.7ha (4.5 acres).
He argued that Estate Sonrisa Limited, which had an adjacent land measuring 0.9ha, invaded his portion by extending the boundary and illegally took possession of his portion, on which they constructed the tourist hotel Sonrisa Villas.
Justice S Mukunya, in October 2014, agreed with Macharia’s claims and held that the land belonged to the media proprietor.
The judge also ruled that Estate Sonrisa’s portion, known as Galu/Kinondo/48, was 2.2 acres, as indicated in their title. The judge issued an order for demolition of Estate Sonrisa’s hotel, which had encroached Macahria’s land, to allow each rightful owner to undertake possession of their respective lands.
Dissatisfied, Estate Sonrisa Limited filed an appeal, but three Court of Appeal judges William Ouko, Wanjiru Karanja and Sankale ole Kantai, in April 2020, dismissed the appeal and upheld the Environment and Lands Court's decision.
The three-judge bench having listened to testimonies from all parties and the lands registrar in Kwale reaffirmed that the portion belonging to Estate Sonrisa Limited was 2.2 acres and not 4.5 acres as the investor claimed. The court found that from their original portion, the Polish investor had extended his boundary with additional 2.4 acres, which belonged to Macharia.
According to the Appellate Court, even the District Surveyor, in his oral testimony, confirmed that he was not in a position to authenticate the letters purporting to change acreage of the property allowing the company to have a bigger portion.
Since the judges said they could not determine the exact boundary between the neighbours, they directed the Land Registrar in Kwale and the County Land’s Surveyor to establish the extent of encroachment before demolition of the Sh200 million tourist hotel.
In July 2021, the Land Registrars established the extent of encroachment on Macharia’s land and did a report that was presented to court.
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Based on the report, Macharia through the auctioneers on February 17, sought to enforce orders of eviction to take possession of his land with the help of police.
Justice Naikuni was satisfied with the correctness of the report and issued the order allowing the eviction on February 18 which led to the demolition of the tourist to allow Macharia to reclaim his land.