The owner of City Cabanas wants a case filed by a businessman seeking to recover Sh1.93 billion paid to her as compensation for a parcel of land acquired by the Nairobi Expressway dismissed.
Rosaline Njeri Macharia opposed the suit by Simion Nyamanya Ondiba saying it was an abuse of the court process because similar cases relating to the parcel of land are pending in other courts.
Ms Macharia said the Environment and Land Court lacked the jurisdiction to hear matters raised by Mr Ondiba relating to the process of compulsory acquisition of land.
She added that the case ought to be handled by the Land Acquisition tribunal.
“That consequently the petition against the 1st respondent (Ms Macharia) herein should be struck out,” she said.
Mr Ondiba contends that the payment made to Ms Macharia in 2021 by the National Land Commission (NLC) and Kenya National Highways Authority (KeNHA) should be recovered as it was illegal.
According to Mr Ondiba, the 27km road did not pass through Ms Macharia’s land, as alleged, and that NLC and KeNHA abused their powers by purporting to compulsorily acquire the property for the construction of the Nairobi Expressway.
He sued Ms Macharia, NLC, KeNHA, Ethics and Anti-Corruption Commission, and the Chief Land Registrar, seeking a refund of the monies paid to the businesswoman.
In response, the businesswoman said that Mr Ondiba had never been the registered owner of the property as alleged.
“That the petitioners are mischievous, with a knack and propensity for vexatious litigation. The petition herein amounts to forum shopping in the guise of the constitutional petition and is likely to lead to a multiplicity of suits over the same property to the detriment due administration of justice,” she said in response.
The case will be heard on July 10.
Mr Ondiba also wants to know how the property was gazetted and compensated at Sh1.93 billion through an obsolete registration LR. No. 209/11293.
The petitioner also wants the court to order the NLC and the KeNHA to produce the documents on the compulsory acquisition of the land, the basis for which Ms Macharia was awarded the sum.
“Despite the compensation of the sum of Sh1,937,772,429, the Nairobi Expressway Road project did not pass through the subject suit property, and the bona fide owner (Mr Ondiba) cannot develop or sell the subject suit property having the tentacles and fangs of the National Land Commission and KeNHA,” Mr Ondiba said.
Through his lawyer, Harry Arunda, Mr Ondiba said that the payment was unconstitutional and unlawful, and that the money should be recovered and returned to the national coffers.
Mr Ondiba claims his efforts to resolve the matter through lawful means have been frustrated through a tiresome process.
He cited charges brought against him before a Makadara court in 2016, because of the property. The businessman was acquitted in January 2022, only for fresh charges of intent to defraud and uttering false documents relating to the same property to be brought against him.
He is also seeking a suspension of the criminal case pending the determination of his petition.
He described the transfer of funds to Ms Macharia accounts by NLC and KeNHA without due diligence as deliberate mischief and ‘manifest gargantuan white-collar fraud’.
Mr Ondiba and his company claimed they purchased the land for Sh60 million in July 1994 from the Kenya National Chamber of Commerce and Industry (KNCCI).
Evidence submitted by Mr Ondiba stated that, after purchasing the property LR. No. 209/11293/1, he subdivided the land into LR. No. 209/21698, which measures about 2.9640 hectares, and LR. No. 209/21699, measuring 0.725 hectares, which was registered in the name of Simandi Investments Ltd.
He said he visited the property in 2016 only to find that Ms Macharia had trespassed and was excavating soil and carrying out various activities.
