Taxpayers will lose over Sh1.4 billion after a tribunal ordered the demolition of the Pangani footbridge on the Thika Superhighway within 90 days for encroaching on a private property without compensating the owner.
The Land Acquisition Tribunal found that part of the footbridge was erected on a portion that was not part of the land acquired by the Kenya National Highways Authority (KeNHA) for the Thika Road project.
It ruled that the property belonged to Sheikh Fazal Ilani Noordin Charitable Trust, ordering the State to pay the organisation Sh1.2 billion as compensation.
The bridges on the superhighway cost an estimated Sh200 million to build, taking the full taxpayer cost from the spat to Sh1.4 billion.
The tribunal noted that the footbridge had blocked access to the property and that the appropriate relief to the trust was ordering its removal.
“Even though we have found that the footbridge on the suit property was illegally constructed and has deprived the Claimants of a portion of their property, we are of the persuasion that an order of compensation for the portion of the suit property which is illegally occupied will not be the appropriate order in the circumstances,” the tribunal chaired by Dr Nabil Orina said.
The tribunal further directed the government to pay the trust Sh500 million for part of the land acquired for the construction of the key road.
The government had proposed to pay the trust Sh53.5 million, but the amount has never been paid.
KeNHA was also directed to pay a further Sh75 as disturbance allowance, general damages for trespass amounting to Sh300 million, and an additional Sh5 million as aggravated damages.
The tribunal stated that there was evidence indicating the footbridge encroached on the property outside the portion that was forcibly acquired for the Thika Road project.
It further directed the road agency to remove soil and construction waste dumped on the property within three months and file a compliance report within 100 days. In yet another pain to the taxpayers, the tribunal directed KeNHA to compensate the trust for trespass and lost income of Sh15 million annually from 2009 or Sh240 million for the blockade of the property.
“We also determine that the Claimants are entitled to compensation of the sum of Sh50,000,000.00 for the encroachment of their property through the building of a footbridge which blocked the property’s entry and exit,” said Dr Orina, George Supeyo and Ruth Okal.
According to the tribunal, the portion of land on which the footbridge is located was not subject to acquisition for the construction of the highway.
The tribunal noted that the trustees unsuccessfully tried to obtain any clarification from KeNHA over the footbridge.
“It follows, therefore, that any deprivation that is not pursuant to compulsory acquisition as provided for under the repealed Act violates the affected party’s fundamental rights. The impugned compulsory acquisition process as well as the erection of the footbridge on the Claimants’ property did not comply with the Constitution and the repealed Act,” added the tribunal.
Other than the footbridge, the trustees submitted that during the acquisition of the land for the construction of the road in 2008, the government never involved them in the process, hence depriving them of their rights.
The process for the acquisition of the property started in July 2008, when the Commissioner of Lands published gazette notices for the compulsory acquisition of various parcels of land for the construction of the Nairobi-Thika Road Project.
In a letter on December 22, 2008, the Ministry of Lands forwarded a compensation schedule to the Ministry of Roads, indicating that an award had been made in respect to the compulsory acquisition of the property for Sh53.5 million.
However, in yet another gazette notice in February 2009, the commissioner revised the acreage of the property to be compulsorily acquired.
The trustees have been pursuing the compensation in the past 17 years.
They submitted that the entire process was conducted without their involvement, despite the State agencies being aware of their interest in the property.
In particular, they contend that they were never served with the requisite notices.
The trustees termed the valuation hasty and unprocedural. Other than being inadequate, the trustees said they had never been paid.
In response, the National Land Commission (NLC) agreed that the entire process of compulsory acquisition was a nullity and ought to be redone to avoid irregular compensation.
Besides, the tribunal said NLC should audit processes that were commenced by its predecessor to ensure that they are completed or done in accordance with the Constitution.
