Deputy President William Ruto wants a State agency to abandon its quest to recover the land on which Weston Hotel stands, and instead accept payment for the land.
Ruto argues that the Kenya Civil Aviation Authority (KCAA) should conclude negotiations for compensation as ordered by the National Land Commission (NLC) instead of pursuing a fresh case seeking to repossess the land.
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The new filing by Weston Limited, which was done a few days to the July 29 hearing date, is a departure from the hotel’s initial defence that it was the legitimate owner of the property, and that a directive to compensate the government amounted to ‘unjust enrichment’ of the State agency.
Weston Ltd had argued that NLC’s order issued on January 21, last year, that it should pay for the land was unfair because it bought the contested plot legally and should not be compelled to pay for the same a second time.
With this latest change of tack, the company will be seeking to conclude negotiations that will determine how much it will pay KCAA for the 0.773-hectare that is opposite Wilson Airport.
A fresh valuation of the land was to be done to estimate how much Ruto was to pay for NLC to regularise the title to Weston Ltd.
Citing NLC’s orders, Weston, through lawyer Ahmednasir Abdullahi, now wants the court to strike out the case “because KCAA has not exhausted the remedies offered by the commission.”
Weston Ltd argues that KCAA’s case is frivolous based on the doctrine of exhaustion of remedies. The principle states that a person challenging a decision must first pursue the available solutions offered to him or her before seeking a review or setting them aside.
In the latest filings, the lawyer says the land team’s orders were couched in mandatory terms that the aggrieved party was to follow “to the tail end.”
The company also accuses KCAA of abusing the court process by allegedly filing multiple claims over the property in different forums.
“While appreciative of the substance of the subject matter herein and in cognisance of the adjudication process that had already been undertaken by the first respondent (NLC) in relation to the subject matter, the second respondent (Weston Hotel) prays for stay and or dismissal of the petition herein,” the application filed on June 16 reads.
It adds: “The Constitution and the relevant statutes set out a detailed procedure and process for seeking redress, and the petitioner has already pursued that process and procedure half-way. It is in contention of the second respondent that the procedure and process are mandatory, and this honourable court is lawfully obliged to order the petitioner to finalise and or pursue that process and procedure to the end.”
Ahmednasir says the dispute had already been settled by the commission, hence the only avenue for the aviation agency to approach the court is through an appeal and not filing a fresh suit.
“The determination of the dispute between the petitioner and the second respondent (Weston) had already been made by a commission of competent jurisdiction. This, coupled with the express and mandatory provision of the Constitution of Kenya 2010, and the NLC Act that expressly provide for a detailed process of how to handle the disputes of the genre before this court. The same cannot be ignored or wished away by the petitioner herein and the court,” read the court papers.
Weston’s new application is supported by Priority Limited, a firm that is alleged to have been the initial owner of the contested land.
The company, through lawyer Katwa Kigen, argues that KCAA prosecuted a case against Weston before the NLC and obtained a valid judgment, hence it would not be able to initiate another case against the same parties.
“The petitioner’s claim is res judicata in toto in the face of lack of an appeal from the NLC’s adjudication and decision of the selfsame dispute. The petitioner’s petition is an abuse of the court process, including the proceedings available at the NLC,” reads Priority’s reply filed on July 1.
But KCAA says it had asked for restitution in its complaint before the NLC and not compensation as the commission had ordered.
KCAA lawyers Stephen Ligunya and Otiende Amollo however say the agency’s only desire was to get back its land.
“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.
“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’s legitimate expectation to enforcement of its property rights, thereby setting a bad precedent that wrongfully elevates land grabbing by private entities beyond legal reproach,” argues KCAA.
KCAA Director General Gilbert Kibe has stated that Weston Hotel was built on public land intended for use by the Directorate of Civil Aviation (DCA) to ensure air navigation control and safety.
Mr Kibe claimed the DCA actively occupied and utilised the land by installing sensitive air navigation equipment and storage of spare parts. It also had advanced plans to build its headquarters to serve as the base of KCAA.
According to Kibe, Priority and Monene were registered as the land’s owners through illegality, fraud and corruption.
The court heard that the firms forcibly evicted the DCA and its employees from the land, removed costly air navigation equipment and spares and dumped them at sites in Industrial Area and Athi River, thereby causing their degradation from harsh exposure to the elements.
“In furtherance to the fraud, Weston, despite full knowledge of the KCAA’s lawful claim, procured registration of the transfer in its favour and began rapid construction of the current development without bothering to seek or obtain development approvals from relevant State regulatory agencies, including KCAA,” said Kibe.
He also accused the NLC of “attempting to sanitise the illegality KCAA suffered by ordering that it must accept compensation.”
The court heard that the NLC ignored its own finding that the parcel was adversely mentioned in the 2004 Ndung’u Report. The report specifically identified KCAA’s unchallenged ownership of the land.
“Any due diligence conducted by a bona fide party in 2007 when the transfer was done would have raised red flags that the land belonged to the petitioner. Therefore, Weston was in fact aware, or by reasonable diligence would have discovered that KCAA owned the land. It cannot, therefore, allege that its transaction was bonafide,” Kibe said.
It was also claimed that the NLC ignored clear evidence that Weston Ltd recklessly continued with the purchase and rushed construction without obtaining KCAA approval as required by Regulation 65 of the Civil Aviation (Aerodromes) Regulations.
Weston Ltd, the court heard, further failed to comply with a notice to stop construction in a bid to secure air navigation safety.
Documents attached to the main case reveal that KCAA had knocked on doors at, among other places, the Ethics and Anti-Corruption Commission (EACC), filed a complaint before the Paul Ndung’u inquiry in 2004 on grabbed land, and sought help from the police.
On July 3, 2001 former Commissioner of Lands Sammy Mwaita allocated KCAA plots LR Nos. 9187 and 9188 through letter reference No. 51776/XVI, with the agency paying Sh3,530 through cheque no. 005174.
“Please let us also have a copy of a deed plan to enable us locate the site for further necessary action,” BSK Muli wrote to Mr Mwaita on behalf of KCAA MD Chris Kuto on August 6, 2001.
On August 22, 2001, Transport PS Francis Muthaura wrote to his Lands colleague Nehemiah Ng’eno asking him to safeguard the plot.
“The true position is that this plot, which is strategically located just outside Wilson Airport, is not vacant because it has buildings which provide central storage facilities for sensitive air navigation. To safeguard ownership of this government plot, which seems to attract attention of property developers, I request your office to issue a title deed to the DCA,” Mr Muthaura said.
It was not immediately clear whether Muthaura’s order was obeyed.
The government, through the Ministry of Lands, gave KCAA, then known as the DCA, allotment letters for the two parcels in 2001 before the agency transferred its equipment from the plot.
On October 1, 2002, KCAA Assistant Director B Amukowa communicated the decision to relocate the DCA stores from the Weston land and appointed the officer in charge of the logistics unit, AN Gatta, to spearhead the relocation.
The next day, Amukowa wrote a memo captioned “Special Assignment” to the officer in charge of air navigation services, asking him to report to the DCA Central Stores to coordinate the removal of the agency’s equipment to another location.
On January 6, 2003, under President Mwai Kibaki’s administration, Transport PS Sammy Kyungu wrote to his Lands colleague, Francis Baya, referring to Muthaura’s letter and complaining that a private developer had fenced off the plot.
“In order to safeguard ownership of this government plot, I request, once again, and as a matter of urgency, issue a title deed in favour of KCAA. Any wrongful allotment of and issuance of title deed that may have been given to any other party should be revoked,” Mr Kyungu said.