The compulsory acquisition of land by the government for the construction of housing sections in the Mtongwe Rifle Range and Naval Dockyard is set to cost taxpayers approximately Sh1.14 billion.
In a recent ruling, Justice Lucas Naikuni of the Land and Environment Court highlighted that the government had failed to compensate Najmudin Noorali Mohamed Ali and transfer the land title after compulsorily acquiring the property, as required at the time the case was filed.
Justice Naikuni stated, “Ali is entitled to full compensation for the compulsory acquisition by the respondents, based on the most recent valuation of the property.”
The judge further emphasized that the state and its five sued agencies had disregarded the necessary procedures for land acquisition, thereby infringing on the rights of the landowner. He noted that such actions should be appropriately penalized.
“It was evident that the land in question had been earmarked for compulsory acquisition by the Government of Kenya for use by the Department of Defence (DoD). They had been occupying the land and failed to provide adequate notice to Ali before forcefully evicting him,” Justice Naikuni explained.
He added, “The parcels were fenced off and designated as a ‘no-entry’ zone. The key issue here was whether proper notice was given to the landowner regarding the compulsory acquisition.”
The court assessed the total amount to be compensated at Sh1.14 billion, which includes Sh750 million for the land’s value, Sh37.5 million as general damages due to illegal possession by the Kenya Defence Forces (KDF), and an additional Sh350 million to account for the loss suffered by Ali.
In February of the previous year, Ali filed a lawsuit against the Cabinet Secretaries of the Ministry of Defence and Land, alongside the National Land Commission, the chief land registrar, and the Attorney General, asserting that he had been deprived of the land he inherited from his late mother.
Ali presented a 39-paragraph affidavit, affirming his ownership of two acres of land under CR NO77/IV/MS and 6.2 acres under CR 2117, totaling 8.2 acres, which had been taken over by the government.
“In 2018, I discovered that the said pieces of land had been illegally and forcibly acquired by the Government of Kenya for the purpose of expanding the Mtongwe Rifle Range and Naval Dockyard under the Kenya Navy,” Ali stated.
He revealed that he came across the property documents long after his mother, Dayambi Bhaijee, passed away on January 3, 1973. He subsequently approached the Kadhi’s court, which confirmed him as her sole surviving son and ordered the Registrar of Lands in Mombasa to transfer the titles to him.
To substantiate his claim, Ali submitted a certificate of search dated November 2018, as well as another one from January 11 of the following year, to establish his ownership. He argued that the government had no supporting evidence for their claim on the land, which they had utilized for a significant military facility.
In response to Ali’s allegations, the State contended that it had acquired the property due to Ali’s illegal acquisition of it. However, the court dismissed this argument, stating that no Kenyan could be dispossessed without following proper procedures.
The four respondents in the case strongly defended their position, asserting that Ali’s constitutional petition was baseless, vexatious, and an abuse of the court’s process.
“The property in question was never listed as part of the late Mrs. Bhaijee’s estate, and Ali lacks the capacity and authority to claim compensation for the two parcels of land,” stated the Ministry of Defence, Land, the Land Registrar, and the Attorney General.
They further maintained that the two properties encompassing the prime 8.2 acres did not exist, as “it was not possible for parcels No. 77/IV/Mainland South and 81/IV/Mainland South to exist when Gazette Notice: No 3075 and 3076 were issued on October 25, 1977.”
According to the state’s court filings, they legally acquired the land following an inquiry held on February 20, 1978, at the lands office in Mombasa. They stated that all individuals claiming ownership of the disputed property and other portions of prime Mainland South were duly compensated.
“An award of Sh41,089 was granted for LR No. 227/IV/Mainland Southland, and Sh63,997.50/9 was awarded for I-JR No.229/1V/Mainland. On May 15, 1979, the Chief Valuer sent checks for the aforementioned amounts to the proprietor’s address at P.O. Box 80928 Mombasa,” the court papers filed by the state read.
Furthermore, the state mentioned that another notice was issued in September 1979, asserting their possession of the disputed parcels in accordance with Section 19 of the Land Acquisition Act, 1968.
The National Land Commission, the third respondent, argued that they only became operational in May 2012 and should not be involved in the case, as they did not exist between 1977 and 1979 when the land was gazetted.