A hotel associated with Deputy President William Ruto says it would be unjust to force it to compensate a State agency for land on which it sits as that would amount to paying twice for the same property.
This is in a response to a suit by Kenya Civil Aviation Authority (KCAA) which wants Weston Hotel ordered to surrender the land along Nairobi’s Lang’ata Road after the National Land Commission (NLC) ruled the parcel was public land.
NLC had ordered Weston to compensate KCAA for the 0.773ha parcel, which is opposite Wilson Airport, but the hotel says it is aggrieved by the order arguing it bought the contested land legally and should not be paying for the same a second time.
In the court papers, Weston’s director Michael Nzile swore an affidavit on behalf of the hotel’s board of directors in which KCAA is accused of attempting to “unjustly enrich” itself.
“The second respondent (Weston) is aggrieved by the determination that it should compensate the petitioner. The second respondent deems this determination as absurd given that the first respondent made a finding that the second respondent is a bona fide purchaser of the land,” court papers filed by Ahmednassir Abdikadir advocates read in part.
They continue: “The second respondent completed payment of the purchase price long ago and thus should not be paying this compensation. Further, if the second respondent is to pay the petitioner, such payment would amount to double compensation.”
Nzile denied that there was fraud and illegality while acquiring Weston Land. According to the director, Weston had carried out due diligence and the authenticity of the title issued to it.
In his reply before Lands Court judge Bernard Eboso, he claimed it was puzzling for KCAA to claim the land without providing a title or an allotment letter proof of ownership.
Agency wants land
“The petitioner’s allegations raised in the petition are pregnant with malice and falsities, and progeny of petitioner’s insatiable desire to make mischief and are meant to deprive, and or threaten the second respondent property rights in the suit property and unjustly enrich the petitioner,” claimed Nzile.
A deal brokered by NLC to have Weston compensate KCAA ran into headwinds. NLC found that the four-star hotel had been built on grabbed land belonging to KCAA and ordered the hotel linked to Ruto should negotiate for compensation.
The suit, filed by lawyers Otiende Amollo and Stephen Ligunya, reads that NLC lacked powers to order KCAA to negotiate with Weston for compensation.
According to court papers, KCAA said its only desire was to get back its land and not to be paid any money.
“The first respondent’s (NLC) determination further is irrational and irregular as no party pleaded for compensation. The final order also fails to account for the fixtures on the land, making the order ambiguous and absurd and incapable of implementation,” argue KCAA lawyers.
“Similarly, the determination is irrational because it deliberately turned a blind eye to the corrupt dealings of the second (Weston Hotel), third (Priority Limited) and fourth (Monene Investments Limited) respondents instead of upholding the petitioner legitimate expectation to enforcement of its property rights, thereby setting a bad precedent that wrongfully elevates land grabbing by private entities beyond legal reproach.”
In the case, KCAA Director General Gilbert Kibe said that the parcel Weston sits on was public land intended for use by the Directorate of Civil Aviation (DCA) in ensuring air navigation control and safety throughout Kenya.
He claimed that DCA actively occupied and utilized the land by installing sensitive air navigation equipment and its central stores holding spare parts. It also had advanced plans to build its headquarters to serve as the base of KCAA.
While denying liability, Nzile claims that KCAA voluntarily left the contested property by accepting an alternative site. In turn, he says, KCAA relinquished its right over the land
According to Nzile, Weston is not the highest building and does not appear to be on the landing path. He argues that Weston is just an innocent third party buyer.
“The second respondent (Weston) is a bona fide purchaser of value without notice contrary to the misleading assertion that the land was illegally and fraudulently acquired, the first respondent (NLC) did not make such determination. The petitioner (KCAA) deliberately sensationalized the above finding by omitting from its petition that the second respondent was found to be an innocent purchaser,” claimed Nzile.
“The petitioner herein should thus not be compensated twice, if the order for compensation were to be enforced, it would amount to the promotion of unjust enrichment.”
Court papers read that Priority and Monene Investment obtained an allotment letter for a term of 99 years from January 1, 1998. The property changed hands to Weston in 2007.
Nzile claims that on April 29, 2008, KCAA approved construction in the same piece of land and a year later, on June 17, 2009, it wrote to Kenya Airports Authority informing the aviation industry regulator that it had received an application for a proposed hotel.
“My averments invalidate and destroys the petitioner’s malicious allegation of fraud and illustrates that the process of acquisition of title to the suit property by our predecessors in title is beyond reproach. The petitioner is clearly forum shopping and the instant petition amounts to nothing but a mere tactic to obtain a favorable decision,” he said.
Nzile also delved into the Ndung’u report on grabbed lands. He claims that the report did not make any conclusive findings on the contested land. “Ndung’u report has not acquired any statutory form and as such has no force odd law and it is doubtful whether the recommendations therein legally identify the petitioner as the legal proprietor of the suit property,” he says adding that Weston’s land case is a political witch hunt.