Kenya Airports Authority (KAA) got a reprieve after a court issued temporary orders, suspending execution of a judgment in which it was ordered to pay owners of a 1.2-acre parcel of land Sh84 million, as compensation for illegally fencing it off.
The Environment and Land Court in Mombasa issued the orders pending the hearing and determination of KAA’s intended appeal against the order to compensate Messrs Abeid Awadh and Omar Khamis, the land owners.
Justice Nelly Matheka ruled that the decretal amount is colossal and KAA may not recover it if their appeal is successful.
“I am persuaded that if the application is not granted… the appeal, were it to succeed, would be rendered nugatory, I find that the applicant has fulfilled the grounds to enable me grant the stay,” ruled justice Matheka.
In its application for suspension of the execution of the judgement, KAA argued that the intended appeal raises several crucial grounds, which have chances of success and that the petitioners have commenced execution of the judgement by seeking to attach its funds.
KAA also argued that the petitioners have no known assets or place of abode from which it can recover the money that is likely to be executed. It also argued that if the orders are not granted, it stands to suffer as money plus costs will be irretrievably gone by the time the appeal is determined.
Messrs Awadh and Khamis opposed the application by KAA and stated that they have not started execution proceedings against the judgment. They argued that KAA has not shown that they will suffer prejudice if the application is not granted.
Apart from ordering KAA to compensate the land owners, the court had also issued a declaration that the unlawful fencing off of 1.2 acres and compulsory acquisition of the land, located at Kwa Jomvu, Mombasa, belonging Messrs Awadh and Khamis without prompt, just and full compensation was a violation of their rights.
“This court finds that the actions of KAA of compulsorily acquiring the land were unconstitutional. There was a violation of the petitioners’ right to property and they are entitled to remedies,” said Justice Matheka in her judgment which has now suspended its execution.
Justice Matheka ruled that from evidence presented, it was evident that KAA has been on the land since the year 1978.
The two land owners are executors of the will of Omar Bin Khamis and had, apart from KAA, also sued the Attorney General.
“It is evident that the first respondent (KAA) was well aware that the late Omar Bin Khamis was following up on the suit premises (land),” said Justice Matheka.
The court noted that KAA’s Managing Director wrote to him (Bin Khamis) on February 19 2004 requesting documentation for inquisition as to how land not meant for acquisition was fenced off.
In addition to the letter, the court noted that KAA was in touch with a law firm representing the petitioners in August 2014 requesting for supply of similar documents and promising to revert to KAA.
“Despite being aware of the situation at hand, the respondent (KAA) did not demonstrate to the court that they made further inquiries into their encroachment of the land since they became aware of the petitioners’ predicament,” ruled Justice Matheka.
The court heard that the Commissioner of Lands compulsorily acquired two acres of land on May 13 1978 and paid compensation to the petitioners.
However, the court was told that KAA took possession and vested an additional 1.288 acres of the land and that after the encroachment of the petitioners’ land without full and just compensation was a violation of the right to property.
“KAA could only have deprived the petitioners of part of or all of their property through compulsory acquisition as stated in Article 40 (3) of the Constitution and in line with the procedure stipulated in the Land Acquisition Act (repealed) which at the time was applicable,” ruled Justice Matheka.
Justice Matheka ruled that the petitioners availed evidence in court to support their claim that a portion of their land had been encroached upon.
She added that to be specific, the Ministry of Lands and Settlement, through its Mombasa District Surveyor’s letter dated June 29 2005 informed the petitioners that there was an encroachment of 1.288 hectares into their land by KAA.
“Further, the petitioners carried out a valuation of their suit premises on February 17 2023 and reported that the encroached area measured approximately 1.2 acres or 0.4856 hectares and the value of the said portion. The petitioners are entitled to be paid promptly in full and just compensation,” ruled Justice Matheka.
The court also ruled that it follows therefore that only upon payment of compensation for the entire portion that was hived off by KAA can deem that the petitioners have relinquished their title to the land.
“The right to be compensated when a person is deprived of his property for public use cannot be over emphasised,” ruled the court.
