'SANY demolitions': Taxpayers to cough Sh2 billion for Nakumatt Ukay compensation

Kenyans will cough in excess of Sh2 billion to compensate the owners of Nakumatt Ukay mall demolished at the crack of dawn by a multi-agency government team back in 2018.

Justice Oguttu Mboya slammed four state agencies- Office of the Attorney General, National Environmental Management Authority, Water Resource Management Authority, and the Nairobi City County- for arbitrarily depriving the owners of Nakumatt Ukay of their property.

The National Youth Service, which formed part of the multi-agency team that went about demolishing properties allegedly built on riparian lands in the city, was spared the costs. The building was located in the affluent Westland area, adjacent to the Westgate Mall.

The four will jointly pay Kental Enterprises Ltd, owners of the demolished mall, Sh2,013,500,000 in compensation for the value of the destroyed property. The four will also pay exemplary damages to the tune of Sh50 million.

“A declaration be and is hereby issued that the petitioner's rights to acquire and own property without arbitrarily being deprived of the same as guaranteed by Article 40 of the Constitution of Kenya was violated by the State following the demolition of the building,” Justice Mboya said.

READ: Westgate Mall, Nakumatt Ukay targeted for demolition

In the decision, the judge found that the process leading to the demolition of the building was flawed and amounted to “arbitrary and compulsory” deprivation of property. The award shall attract interest of 14 percent per annum from January 22, 2019, when the suit was filed.

And if the four state agencies dither in settling the compensation, the claim shall attract another 14 percent interest per annum with effect from yesterday, when the judgment was delivered. The owners of the building must however surrender the certificates of title to the Chief Land Registrar for purposes of cancellation to avoid unjust enrichment.

In the multimillion, precedent-setting suit, Nakumatt Ukay owners were represented by Advocate Elijah Mwangi, Allan Kamau represented the AG and the NYS, Ngararu Maina for NEMA, Charles Agwara for WARMA while Pauline Matata of Prof. Musili Wambua Advocates, defended City Hall.

The demolition was pegged on claims that the mall was built on riparian reserve and that the owners had had illegally canalized the waters of river Kibarage, beneath it. City Hall, the principal mover of the demolition by its development approval function, was put in the spotlight in the judgment.

City Hall issued the initial enforcement notice of May 23, 2018 against Nakumatt Ukay relating to alleged illegal alterations to the existing building. The notice wanted the building owners to cease further developments and to submit structural drawings to the County government for consideration.

In response, the Mall owners clarified the alterations were approved by the city authorities, attaching the duly approved structural drawings. However, City Hall raised brand new issues of encroachment into riparian land, in subsequent letter on July 6, 2018.

They now wanted them to demolish part of the building encroaching onto the riparian reserve, subject to determination by NEMA and WARMA.

In the proceedings, it emerged that WARMA neither issued nor served any enforcement notice on the building owners relating to the riparian claim. John Kinyanjui, a WARMA official in charge of water resources, assessment and monitoring, testified that they had neither visited the building nor demarcated the extent of the riparian reserve. 

The court then wondered how one could claim the building encroached on riparian reserve. The claim that the building owners had undertaken canalization of river Kibarage without requisite approvals was similarly crushed when they produced approvals from NEMA and WARMA. 

“Surely, how on earth would the Multi Sectoral Agency committee purport that the canalization of the river was illegal yet the designated authorities had issued the requisite licence and approval,” the court wondered. 

“Similarly, how on earth would the same bodies participate in a process purporting that the building in question was sitting on the riparian reserve and yet no measurements and demarcations had been undertaken?” it added. 

Bimal Shah, a director at Kental Ltd had told the court that the property where Nakumatt Ukay stood had been bought from two other companies, and was not a product of an allotment to them.

The Commissioner of Lands had previously purported to cancel the title of the property but was stopped by the courts in 2010.

In the case which stopped the Commissioner, the late Justice David Majanja had declared a gazette notice which had revoked the title as unconstitutional and unlawful.

ALSO READ: Demolition spree: NEMA brings down Ukay Mall (Photos)

The state then came back, riding on the fury of the “multi-sectoral agency consultative committee”, which had the blessings of the highest levels of government, to “regenerate Nairobi.”

The court said the fact that Nakumatt Ukay owners had been issued with a certificate of lease which had not been legally revoked, sealed the case. It also said the building owners were neither given proper notice nor right to a fair hearing before their building was demolished.

In the end, the court described the various claims of the multi-agency team in the process of defending as amounting to “kicks of a dying horse.”

The judge compared the fate of Nakumatt Ukay building owners to the helplessness which obtained in former Judge, Justice Benna Lutta case, after he lost his 1,756-acre land to state-backed encroachers in Kitale.

“A man whose judgments and fingerprints dot our Law Reports now looks dejected and broken. His advanced years show more than they should, all because what he worked for in his youth was stolen by conniving civilians with government protection. No Kenyan should ever again be so treated and the state must draw lessons from this judgment. 

Justice Mboya only added six words to this epic judgement of Justice Isaac Lenaola: “I need to say no more.”