KeNHA to pay Sh1.2bn to Mombasa businessman for unlawful land acquisition
By Joseph Ndunda |
Justice Stephen Kibunja of the Environment and Land Court in Mombasa ordered the KeNHA to pay the amount of Sh1,214,000,000 with interest of 13 per cent calculated from January 2017.
The high court has ordered the Kenya National Highways Authority (KeNHA) to pay Sh1.2 billion to Mombasa businessman Karim Mohamed Hassanali as compensation for his 41 acres of land compulsorily acquired for the construction of the Mombasa Southern Bypass and the Kipevu terminal link road.
Karim had sued the KeNHA and the National Land Commission (NLC) which led the process of the acquisition of the land for the projects after delayed compensation, demanding the money be paid together with interest rates calculated from January 2015.
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But the NLC contested this claiming that the calculation of the interest should start in 2019 when a determination on the ownership of the land was made. There was a dispute over the land's ownership.
The businessman owns 189 acres of land valued at Sh30 million per acre and the government forcibly took 41 acres for the public infrastructure projects.
He told the court that he has not been asked to surrender the title document by the NLC and KeNHA for excision of the acquired portion of his land though KeNHA has already erected a roundabout and flyover road infrastructure on the land.
Justice Stephen Kibunja of the Environment and Land Court in Mombasa ordered the KeNHA to pay the amount of Sh1,214,000,000 with interest of 13 per cent calculated from January 2017.
Karim had told the court that the two state agencies did not pay just compensation upon taking over the said land thereby violating Article 40(3)(b)(i) of the Constitution and section 115 of the Land Act and Justice Kibunja agreed with him.
"It follows therefore that the failure by the (NLC) to follow the laid down procedure in the compulsory acquisition of the plaintiff's (Karim) land, including the failure to serve the statutorily required notices upon the plaintiff, made the process disorganised and pedestrian, and not in conformity with the constitutional protection of rights to property under Article 40 of the Constitution," stated Justice Kibunja.
"The process the (NLC) used to acquire the plaintiff's land, the takeover and use by the (KeNHA) fell short of adherence to the Constitutional and statutory procedures prescribed, and was therefore unlawful."
The value of the property was arrived at using the market approach method and comparing it with other properties.
A valuer who testified in court during the hearing of the case said the valuation for compulsory acquisition is done after the land is gazetted and that their valuation was done in 2017.
This valuation did not include any developments on the land, and the value could not have been affected by the fact that a road was being constructed through the land.
The NLC and KeNHA had argued that the amount payable for the suit property was Sh137,521,600.
But the judge noted that no copy of the valuation or award containing that figure was filed and produced as exhibits to the court in support.
"There was no valuation report presented by NLC and KeNHA to challenge the figures presented by the plaintiff (Karim) and his witnesses. The schedule of payments is not a substitute for a valuation report, and I therefore find the plaintiff valuation is unrebutted or controverted," stated Justice Kibunja.
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