Mombasa High Court Judge, Justice Silas Munyao during a ruling at the Mombasa High Court in Mombasa County on Tuesday March 3, 2020 [Kelvin Karani, Standard]
The High Court in Mombasa has given Presbyterian Church of East Africa three months to vacate the land where it has built a school at Mariakani in Kilifi County.
Justice Sila Munyao ordered the church to also transfer students from the secondary school it built on the 24-acre plot and to demolish the structures.
“The plaintiff is the rightful owner of all that land in the title Kilifi/Kawala A /Kandzonzo/304 and 505,” said Justice Munyao in a judgment issued on October 28.
The judge said the church had no right to be on the land, had no proprietary right over the land and declared it a trespasser.
The dispute arose after Nicholas Munyiki Kaigua sued the church, accusing it of trespassing on his land and asked the court to order the demolition of the school.
Kaigua said he legally acquired the land from Peter Mwasi and Shingwaya Holding Company before the church encroached and built the school.
“The church must remove herself and all persons that she (church) has put into occupation from two parcels of land within six months,” said Justice Munyao.
“In default, the complainant is at liberty to demolish and remove such structures, if he wishes so, and pass over the cost to the church,” said Justice Munyao.
The judge also ordered the church to compensate Kaigu Sh2.5 million as general damages for trespassing on the land, which is to be paid with interest from October 28 this year when the judgment was read.
The court also ordered the church to pay Kaigua the cost he incurred in pursuing the case he filed in 2012.
Kaigu testified that he bought the plots in 2009 and 2010 after undergoing a process of land adjudication and settlement.
He said after buying the plot and took time to develop, he saw the church clearing the bush and started building the school without his authority.
He went to court on September 9, 2012 and sued the church and Juma Jefa Mboe and Sidi Chengo Ngato.
The petitioner prayed for judgment against the church, pleading to be declared as the absolute proprietor of the two plots. He also asked the court to give him a permanent injunction to restrain the church from occupying the land and order the church to remove any structure on the plot.
But church officials insisted they bought the land from Jumwa Jefa Mboe and Sidi Chengo Ngato when it had not been surveyed.
The church pleaded that after taking possession of the land, it developed Presbyterian High School because nobody objected to their interest in the plot. They said Mwasi had no legal rights over the parcel and asked the court to declare the church as the rightful owner.
But the judge said Jumwa Jefwa and Sidi Chengo sold their neighbour’s land to the church instead of number 306 which was assigned to them by the government.
“If the adjudication process found that the land was not for the vendors (Jumwa and Sidi), then any person who purchased it from them could not get a good title. I have seen evidence that they indeed had disputes with their neighbours, which were determined by adjudication committee against them,” said Justice Munyao
The judge found that Kaigua had the right title for plots number 304 and 305 he bought from Mwasi and Shingwaya.
