A blunder by the defunct Nairobi City Council to irregularly allocate public land would have cost taxpayers Sh100 million.
The Environment and Lands Court in ending the 20-year-old court battle found that the Peniel Grace Center and Christ Co-workers Fellowship (Chrisco) Churches and two Jua Kali Associations had been allocated Kenya Power land.
Justice Lucy Mbugua fingered the City Council saying it was the author of the mess on the land located along Kangundo Road.
She faulted City Council saying it did not find it expedient to appear in court to unravel the quagmire it created through their haphazard land allocations.
Kenya Power had sought Sh100 million compensation for the trespass which they said had lasted more than 20 years.
Justice Mbugua declined to award damages sought by Kenya Power against the City Council which was the culprit.
“If any such damages are awarded against the culprit, the 5th defendant, it is the taxpayers who will end up footing the said costs, a situation that is not tenable under these circumstances,” she ruled.
Kenya Power filed the case in 2004.
The Jua Kali B Association and Peniel Church said that they had occupied the pieces of land allocated to them by the Council.
They both filed a counterclaim seeking to dismiss the case, be declared the rightful owners of the property and have Kenya Power barred from interfering with the land.
The Jua Kali A association in their defence said that they had occupied the land legally.
The Chrisco Church opposed the case, saying they were the rightful owners of the land they occupied through a letter of allotment issued by the council.
In their submissions, Kenya Power said that the land hosts a depot, substation, officer block and a fabricated building for operations.
Jediel Muriuki who testified on the behalf of Kenya Power argued that the encroachment by the churches and the associations was a security threat to them, their equipment, employees and machinery.
Muriuki said the encroachment had restricted the upgrading of the sub-station and managing the supply of power in the neighbourhood.
During cross-examination, he said that Chrisco is about 50 meters from the substation and they are separated by an unofficial road.
Muriuki submitted that the space is meant for power wayleaves which is important because high-voltage power lines need tracing lines.
Chrisco’s pastor Cyrus Wanyaga told court that in 1992 applied for a vacant plot in Nairobi’s Eastlands in order to establish a church for their growing congregation.
On October 27, 1992, they were allocated Title No. LR113044/R measuring 0.2 hectares and they paid all charges demanded by the council.
In 1997 they got a beacon certificate and were given the necessary approvals to erect a church and build a stone wall.
Chrisco argued that Kenya Power sought ownership of LR113044/R yet they produced documents relating to LR11344 for a substation in Dandora which is several kilometres away from their property.
Justice Mbugua noted that neither Chrisco nor Kenya Power had a title deed to the contested property.
“Thus, in the case at hand, even if the parties do not have title documents, it does not mean that no rights in the said land can accrue.”
She found that the power company was allocated the land for public use in 1975, 17 years before Chrisco was allocated the land.
The Judge said, Kenya Power’s site and groundwork began in 1981, and high-voltage lines were already in place by 1998.
“The 4th defendant (Chrisco) must have been aware of the plaintiff’s (Kenya Power) presence in the vicinity and this ought to have sounded a warning as to what they were acquiring from the 5th defendant (County).”
She faulted the council saying if they had appeared in court then they would have shed light on the issue of ownership and title status but they opted to be stay away.
