The tussle over the ownership of the recently refurbished Michuki Park in Nairobi has now landed in court, with a private company seeking Sh12 billion in compensation for the property.
Uaso Nyarobe Waterfront Limited says in the court papers that it is the registered owner of the 26-acre park, accusing the government of forcible takeover of the land.
Three weeks ago, President Uhuru Kenyatta inaugurated the park after its refurbishment by the Ministry of Environment in conjunction with the Nairobi Metropolitan Services and the National Environment Management Authority.
The works started in April. About three kilometres of walkways were set up, as well as a nursery for indigenous trees. Public toilets were also built, while plans are underway to establish a café and an amphitheatre for public performances.
In its petition, Uaso Nyarobe wants the Ministry of Environment cited for trespass and Mr Keriako Tobiko, the Cabinet Secretary, held personally liable and accountable for the seizure of the land. They also want the government vacate and surrender the property unconditionally.
The company has named Mr Tobiko, the Ministry of Environment and Forestry, the Kenya Forest Service and the Attorney-General as respondents and the National Land Commission as an interested party. On December 31, 2014, the company became the registered owner of Land Reference Number 209/4360/59.
Term of 50 years
Court documents show that the history of the suit property stems from the registration of Grant Number IR11135 on January 24, 1955 by Queen Elizabeth II, when it was granted Land Registration Number 209/436, comprising 32.26 acres and registered in favour of Ewart Scott Grogan for a term of 50 years from January 1, 1951.
On April 25, 1958, a portion of the property measuring 26.1 acres was sold and transferred to Shrimati Parpatibai, Vashdev Hiranand, Hasham Meralli, Abdulla Fazal and Kundan Lal Watson, who were the second registered owners, and a Certificate of Title Number IR 15153 issued.
“At all material times prior to the institution of this suit Gidoomal Holdings Limited, Swamp Estate Limited, the Executors of the Estate of Abdulla Fazal (Deceased) and Riki Limited, who became the heirs and beneficial owners of the suit property as a consequence and/or from the succession cases and/or estates of the Second Registered Owners, transferred their undivided shares in the suit property totalling 88.274 per cent to Uaso Nyarobe Waterfront and the balance of 11.723 per cent is still held by the Estate of Lakhi Hiranand Gidoomal (Deceased) whereas the said estate is pending finalisation of the probate and/or determination of the succession case,” states the petition.
They add that the second registered owners, their heirs and thereafter the company has had free and uninterrupted possession of the suit property from April 25,1958 until the government repossessed it this year.
Sometime in 1999, the registered owners of the property engaged Planning Systems Services Limited as a lead consultant, to prepare a master plan for a mixed-use development. On August 31, 2009, Uaso Nyarobe Waterfront Limited was incorporated as the special purpose vehicle to undertake the development.
“The development on the property intends to create an urban village with 2,500 modern kiosks and 600 affordable housing units on the north bank of the site whilst the southern bank, which borders Kijabe Street, is intended to have offices, a hotel, shops, apartments, Retail Shops, an Amphitheatre and parking area for 3,300 cars,” said Karim Fazal, a director of Uaso Nyarobe.
The Mwai Kibaki administration, through then Environment minister the late John Michuki and permanent secretaries, Prof James ole Kiyiapi and Lawrence Lenayapa and other ministry officials, worked together with the company to clean and clear the property of encroachers at Uaso Nyarobe’s costs. Thereafter, part of the land was cleared and fenced and trees planted in 2009. A foot path and a bridge were then constructed and an administration police post established.
Documents seen by the Sunday Nation show that the government acknowledged that it was private property. PS Lenayapa in 2009 acknowledged this in a letter to Planning Systems Limited on the need to clean up the area.
While inviting them for a meeting he noted: “This is a crucial meeting that we should discuss with the owners of the private land in question who are also invited to the meeting…”
“On or about the year 2009, the suit property was then cleared, fenced and trees planted therein, through the collaboration between the registered owner for the suit property at the material time, the then City Council of Nairobi and the Ministry of Environment and Natural Resources and, at all material times, the ownership of title for the suit property was not compromised or donated to the public in any way or at all,” reads the petition.
The company states that trouble started this year when Mr Tobiko, accompanied by ministry officials, visited the park and took possession of it.
The company says the government disregarded two gazette notices — of September 2017 and July 2020 — as well as a notice in the Daily Nation, all stating that the property was private.
Now it wants Sh400 million per acre, totalling Sh10.44 billion, and damages of about Sh2 billion. Environment and Land Court Judge Bernard Eboso has directed thar the respondents be served with the petition ahead of the hearing on October 7, 2020.