Court allows repossession of land where Sh240m Funzi luxury hotel sits

Justice Philomena Mwilu. The Supreme Court has upheld a decision by the Court of Appeal that found a five-star hotel at the coast was built on forest land. [File, Standard]

The Supreme Court has upheld a decision by the Court of Appeal that found a luxury hotel at the coast was built on forest land.

The highest court in its judgment, ending a 27-year-old court battle between Pati Limited, Funzi Island, Kwale County, and lands declared that the land where Pati has built a luxury hotel is forest land, allocated for boat landing.

Italian tycoon Alessandro Torriani owns Pati. In court documents, the hotel was estimated to be worth Sh240 million in 2005.

Deputy Chief Justice Philomena Mwilu and Justices Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u, and Isaack Lenaola affirmed a Court of Appeals judgment that the contested land was illegally allocated to Pati.

In court, the tycoon argued that the land was private and had set Sh400,000 as compensation should there be any claim. 

He asserted that as there was no objection from any local resident and the area land control board consenting, the land was legally transferred to Pati.

“The entire process and notice for setting apart fell far short of the requirements of the Constitution and the law. In view of these shortcomings and our conclusion regarding the legal status of the suit land, we find no reason to upset the judgment of the Court of Appeal,” the court ruled.

“The suit land was set apart for use as a boat landing base, (a purpose that would have benefitted the local communities ordinarily resident in the area) yet the appellant (Pati) has constructed a five-star hotel on it. There is no further notice on record for change of purpose of setting aside.”

In its appeal, Pati sued Funzi Island Development Limited, retired High Court judge Jonathan Havelock, M.E Havelock, Kwale County Council and Commissioner of Lands.  In court record, justice Havelock is said to be Funzi Island Development Limited’s director.

According to the document, Funzi Island Development Limited own pieces of land on the main Funzi Island and also developed a luxurious tourist tented camp on its piece of land. It complained that Torriani erected illegal temporary structures on the peninsula of land in front of its pieces of land denying it and the local population access to the open sea. 

The strip of land in question lies at the shores of the Indian Ocean in Msambweni on the western side of Funzi Island.  Sometime in 1992, former area MP K B Mwanzandi allegedly applied to Kwale County Council to set aside 1.7 acres of the strip land for boat landing. Court record reads that a letterhead said to be from him showed he was an Assistant Minister for Public Works and Housing.

On June 9, 1994, the Msambweni Divisional Land Control Board gave its consent and five days later, the commissioner of lands gazetted the land. According to the court record, Mwanzandi then asked the commissioner to allocate the same to Pati on July 12, 1994.

The commissioner went ahead to allocate 7.5 acres to the firm for a term of 99 years from August 1, 1994. 

However, the showed that it is the council, which granted the lease, and special condition number five specified that the land should only be used for boat landing and offices.