Win for Runda residents who built on road land
By Kamau Muthoni
| July 17th 2019
A judgment by the Court of Appeal has exposed the Government to pay claims by third party buyers of grabbed public land.
Although the judgment was not unanimous, justices William Ouko and Fatuma Sichale opened a window for anyone who bought land acquired by the State from other parties to challenge demolition and seek compensation.
According to the verdict, the Government will either compensate affected Runda residents to again acquire 20 metres of land to expand the Northern Bypass, which the estate has encroached, or build an overpass or underpass if it wants to use the contested section.
The case was initially before the High Court which had ordered Mimosa Estate to vacate from the road reserve.
But the aggrieved residents appealed, arguing that they had done due diligence and records at the Lands ministry showed that the proposed road was 60 metres wide and not the claimed 80 metres.
Although the State had paid the original owners for the contested 80 metres of land, it will be forced to pay again to acquire the land to expand the bypass after the court found that proper steps were not taken during the process of compulsory acquisition.
Justice Otieno Odek was the dissenting voice in the three-judge bench, and he upheld that whenever the Government has acquired land, no one else can lay claim to it.
Each of the three judges wrote separate judgements.
Justice Sichale, in her verdict, said Government officials were to blame for not updating land records to indicate that the acquired land was 80 metres.
She said the Commissioner of Lands ought to have recalled the titles of the previous land owners and made changes.
The judge noted that a search at the Lands ministry by the current buyers had confirmed that the acquired land was 60 metres.
“In my view, the Government must bear responsibility for failings of its officers and may wish to consider alternative ways of ameliorating the consequences of failure on the part of its officers such as building an overpass or an underpass as part of the Northern Bypass, instead of razing homes belonging to the appellants,” ruled Justice Sichale.
“I am therefore of the persuasion that it would be unjust and unfair to subject the appellants to the harsh realities of inaction and or malfeasance on the part of public officers.”
Justice Ouko, in his separate verdict, found there was no proof that the Government erected any marks on the suit property to identify the acquired portion.
“This failure only goes to confirm that the Government did not carry out a final survey. The truth, however, is that to this day there is no document maintained by the Director of Survey as ‘conclusive’ proof that the width of the road is 80 metres,” he said.
According to the judge, a third party dealing with the properties in question, even after exercising due diligence, would never have known that there was prior Government interest in the land.
But Justice Odek dissented, saying that it would be illegal to compensate the current owners for the same piece of land that had been bought from its original owners.
“The Government cannot compensate twice for the same parcel of land. The Government cannot compensate the appellants for land it owns. This would amount to giving the appellants money for no consideration. What is the Government buying from the appellants? Its own land?” posed Justice Odek.
The judge found that a private surveyor had changed road’s width to read 60 metres. He also noted that in the survey report, which was drafted as residents were sub-dividing the land, it was not clear which road was being created.
According to Justice Odek, failure to fully comply with an administrative process would not nullify rights acquired by the State.
“The Government cannot divest itself of land compulsorily acquired for a public purpose and confer the same to private individuals at no consideration. Land once acquired for public purpose remains vested in the Government or a designated public body for public purpose and no other purpose,” he ruled.
In the 1970s the Government floated the idea to construct the road that is now the Northern Bypass. A number of privately owned parcels of land were identified for acquisition.
On November 20, 1970, the State gazetted 6.42 acres from LR/No. 23 owned by Edith Gladys Cockburn, 16.061 acres from LR/No. 778519 owned by Efstav Limited, and 27.984 acres from LR/No. 7785/10, then owned by Runda Coffee Estate Limited.
The Government paid Sh136,280 to Cockburn, Sh150,548 to Runda Coffee and Sh208,060 to Efstav Ltd.
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