Two Mombasa-based billionaire businessmen, Ashok Doshi and Mohamed Jaffer, have sued the Kenya National Highways Authority (KeNHA) and a Chinese firm, accusing them of demolishing part of a perimeter wall around their land in Mariakani.
The land is adjacent to the Nairobi-Mombasa highway, which is planned for expansion.
In their petition to the Environment and Land Court, Mr Doshi and Mr Jaffer argue that the land is private and does not belong to the respondents or the government of Kenya.
“KeNHA and China Communication Construction Company Ltd have no right to forcefully enter the properties, demolish the boundary wall and undertake constructions works thereon,” reads the petition.
The petitioners, through Oluga & Company Advocates, are seeking a declaration that they are the legal and valid owners of the parcels of land and that the respondents infringed and violated their constitutional rights.
They are also seeking an order compelling KeNHA and the National Land Commission (NLC) to pay just and full compensation for the whole or part of the parcels of land as may be required to undertake the expansion of the highway, to be paid within 60 days of the order.
The two businessmen say that on or about October 22 last year, their security guards at the properties informed them that officials from the KeNHA regional offices were on the land, taking measurements and ordering demolition of the boundary wall to pave the way for the road expansion.
The tycoons say that, through a law firm, they wrote a letter to KeNHA and demanded a halt of the intended demolition of the boundary wall.
“The first respondent retreated and did not take any steps until on or about January 10 when KeNHA and China Communication Construction Company Ltd through their officers descended on the land and demolished the portion of the perimeter wall,” the petition reads.
They added that they engaged KeNHA to rebuild the boundary wall and restore it to its original position, but all their requests and efforts fell “on deaf ears”.
According to the petitioners, the actions of KeNHA and the construction compant amount to the compulsory acquisition of their properties without compensation and in accordance with the laid down procedure in law.
They also argue that the NLC is the institution with the constitutional and legal mandate to compulsorily acquire private land needed for public purposes and has a duty to ensure that due process is followed before their properties are taken over by KeNHA.
“There is no urgency to justify taking possession of the properties before compensation award is made and paid to the petitioners. Even in cases of emergency, the procedure outlined in the Land Act must be followed but the respondents did not,” they say.
The petitioners also accuse the NLC of failing in its constitutional and legal mandate by allowing KeNHA and China Communication Construction Company Ltd to illegally take over their properties without following the legal procedure and paying them compensation.
They also want an order restraining the respondents or anyone acting under their authority from accessing or in any way interfering with their properties until full and just compensation is paid to them.
The petitioners also seek an order compelling the respondents to rebuild the boundary wall and restore the properties to their previous condition within 30 days, should the compensation not be paid.
Meanwhile, pending the hearing and determination of the application, the petitioners want an injunction restraining the respondents from carrying out any construction work or interfering with the properties.
On its part, the NLC through its valuation officer, Samuel Maina, says that it has recommended that both titles claimed by the petitioners be cancelled.
In his affidavit, Mr Maina states that the wall that the petitioners claim to have been damaged has already been demolished, rendering the request for conservatory orders moot as the alleged harm has already occurred.
