Court tells roads agency to keep off disputed plot

Man claims agency invaded property in March last year. The disputed plot is along Prison Road in London Estate, Nakuru East constituency. [iStockphoto]

The Environment and Land Court has extended an order stopping any activity on a plot at the centre of dispute between a State agency and a private developer

The disputed three-acre land is located along Prison Road in London Estate, Nakuru East constituency.

Justice Njoroge Mwangi in Nakuru maintained the status quo stopping the Kenya National Highways Authority (KeNHA) from constructing on the property or storing materials until the case by Mr Hillary Mwaita is heard and determined.

He directed parties to exchange documents in the case within three weeks. Mwaita sued KeNHA on March 25, 2021 accusing the agency of illegally displacing him.

He claims the agency invaded the disputed property in March 2021 and took over without warning.

Mwaita says there has never been any dispute over the property and KeNHA’s activities are unconstitutional and a fragrant abuse of his constitutional rights.

He wants the authority restrained from entering, trespassing, occupying or constructing structures on the property.

Mwaita says that he is the registered proprietor of the property and has been in actual possession of the property since July 1, 1999.

“I enjoyed peaceful possession until April 2017 when KeNHA invaded the property and started storing machinery,” he says.

On June 8, 2017, Mwaita says he wrote a letter of protest demanding KeNHA vacates the land before doing a reminder on December 4, 2018, as he wanted to develop the property.

KeNHA allegedly halted further intrusion until March 2021 when the agency is said to have forcefully trespassed, demolished temporary structures and chased away Mwaita’s agent.

“They installed their own security guard and put a warning sign post in front of the gate which said “Property owned by KeNHA, no trespass,” he claims.

He accuses KeNHA of refusing to vacate the property despite several notices. He claims his rights have been violated.

“The property is at high risk of being alienated or its character changed unless an order of injunction is granted,” he says.

Mwaita not only wants KeNHA’s actions declared null and void, but seeks a restraining order and general damages.

In response on April 29, 2021, KeNHA claims the petition is fatally defective as it does not comply with mandatory provisions of Section 67 (a) of Kenya Roads Act of 2007.

The Acts require a 30-day notice to be issued to the Director General prior to filing of a suit against KeNHA. The authority denies Mwaita’s allegations and says he failed to demonstrate how KeNHA has infringed on his rights.

“The current temporary and permanent structures were constructed by the former Ministry of Public Works and have been taken over by the authority,” submits KeNHA.

The authority accuses Mwaita of acquiring the property without following proper procedure and wants the suit dismissed with cost.

On January 26, the court allowed the Ethics and Anti-Corruption Commission to be enjoined in the case as an interested party.

EACC, in its affidavit, claimed it was investigating the property allocation after suspecting it was done unlawfully.

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