The decision by the government to compulsorily acquire land for the construction of housing sections of Mtongwe Rifle Range and Naval Dockyard is to cost the taxpayer Sh1.14 billion.
In his judgment, Land and Environment Court Judge Justice Lucas Naikuni observed that after compulsorily acquiring the land, the government had to compensate Najmudin Noorali Mohamed Ali and even change its title, but had not done so by the time the case was filed.
“Ali had a right to be compensated, fully for any compulsory acquisition by the respondents by the most recent valuation of the property,” he said.
Naikuni said the state, through its five sued agencies (respondents), "flouted required procedures of land acquisition infringing on its owner's rights, a thing that ought to be punished."
“It was abundantly clear that the suit parcel was earmarked for compulsory acquisition by the Government of Kenya for purposes of use by the Department of Defence (DoD). They had been and still occupying the land,” he said, adding proper notice was not given to Ali before he was forcefully kicked out.
He added: “The parcels were fenced off and marked as a "no-entry" zone. Fundamentally, the main issue to ponder here was whether proper notice was issued to the land owner for the compulsory acquisition.”
The court broke down the Sh1.14 billion into Sh750 Million being the value of the land, Sh37.5 million as general damages for the illegal possession by KDF and another Sh350 million to cater for the loss suffered by Ali.
On February 23 last year, Ali sued the Cabinet Secretaries in the Ministry of Defence and Land beside the National Land Commission, the chief land registrar and the Attorney General, saying he had been dispossessed of the land he inherited from his mother.
He argued in his 39-paragraphed affidavit, that he was the owner of land no CR NO77/IV/MS measuring two acres and CR 2117 measuring 6.2 acres, all coming to 8.2 acres hived off by the state.
“In the year 2018, I was surprised that the said pieces of land had been illegally and compulsorily acquired by the Government of Kenya for use by the Department of Defence, specifically by Kenya Navy as Mtongwe Rifle Range and Naval Dockyard Extension,” he said.
He said he had stumbled on the property documents long after his mother, Dayambi Bhaijee, died on January 3, 1973, and went to the Kadhi’s court, which ruled he was her only surviving son and ordered the Registrar of Lands Mombasa to transfer their titles to him.
He argued his case by filing a certificate of search dated November 2018 and another one on January 11, last year, to prove ownership, saying the government had nothing to show for their claim on the land they had set a serious military facility on.
To counter his claim, the State argued it settled on the property because it was illegally acquired by Ali, but that line did not win the nod of the court, which noted that no Kenyan could be “dispossessed without due procedure.”
The four respondents in the case especially put up a spirited defence saying the constitutional petition by Ali was misconceived, vexatious and an abuse of the process of the court.
“Ali has no capacity and or authority to deal in and Off claim compensation in respect of the two parcels of land as the property was never listed as part of the estate of the late Mrs Bhaijee (Ali’s mother),” said the Ministry of Defence, Land, the Land Registrar and the AG.
They added that the two properties that form the prime 8.2 acres were not in existence as “It is not possible that as of October 25, 1977, when Gazette Notice: No 3075 and 3076 were issued; the two parcels (No. 77 /IV/ Mainland South and 81/ IV/ Mainland South) were in existence.”
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They said the state legally acquired the property after an Inquiry on February 20, 1978, at the lands office Mombasa (Treasury Square), where it paid all the people who claimed the disputed property and others in the prime Mainland South.
“An award of 41,089 was made in respect of LR No. 227 / IV/ Mainland Southland, and 63,997/50/9 made for I-JR No.229/1V/Mainland. On May 15, 1979, the Chief Valuer forwarded cheques for the above-stated amounts to the proprietor's address P. O. Box 80928 Mombasa,” read court papers filed by the state.
They added that the country did yet another notice in September 1979 taking possession of the disputed parcels according to section 19 of the Land Acquisition Act, 1968.
“Vide the Notice of taking possession dated September 10, 1979, the Commissioner of Lands required the person having possession of the documents of title to deliver them to the Registrar of Title, Mombasa for cancellation per. Section 20(1) of the Land Acquisition Act, 1968.”
The other respondent, the National Land Commission (Third respondent) said they became operational in May 2012 and should not have been roped in the battle as they were not in existence between 1977 and 1977 when the land was gazetted.