Blow to Mukuru kwa Njenga residents as court declines to block auction

A section of Mukuru Kwa Njenga after demolition of their houses on 10th March 2022. [Edward Kiplimo, Standard]

Mukuru kwa Njenga residents who failed to regularize their occupation of the contested property with Orbit Chemicals Limited now risk being evicted and the part they occupy auctioned.

This is after Environment and Lands Court in Nairobi dismissed a fresh case filed this year seeking to block the auction of the property.

In their case, Joram Gakimbi, Nelius Kariuki, Hottensiah Wanjiru, Peter Kimani, Zipporah Ndungu, and Thomas Waruru claimed that they bought parts of the property between 2001 and 2009 and were issued with ownership certificates by Kware Mukuru kwa Njenga Association.

However, Justice Edward Wabwoto struck out the case after finding that the ownership of the property had been determined before.

"Having found that the issues herein have already been determined by several courts and that the suit herein is res judicata (already settled), this court shall proceed to strike out the same falling under such abuse of the court process," ruled Justice Wabwoto.

The Judge agreed with Orbit that Justice Oguttu Mboy had found that the land is private and belongs to Orbit Chemicals.

In the case that had been filed by politician Irshadali Sumra alongside 11 others, Mukuru Kwa Njenga claimed that more than 26,000 residents have lived in the property since 1958 and had an expectation that they cannot be evicted.

They argued that having occupied the contested property for over 40 years, they should be declared owners through adverse possession.

According to the residents, the High Court in a separate case had ordered that Orbit Chemicals be compensated and thereafter the land was alleged to be allocated to the landless residents of Mukuru kwa Njenga.

In the case, they also claimed that former President Uhuru Kenyatta had ordered that not all landless persons in the contested property should leave; instead, they should be issued with titles or leases.

They asked the court to block any sub-division, selling, alienating, evicting, removing, demolishing, and or doing anything prejudicial to persons residing on the property.

However, the court found that the president has no powers to direct lands ministry or any other entity to issue titles or leases.

The judge observed that although they claimed there was a circular from the president, they did not produce it in court.

"Assuming that the circular alluded to, which has not been exhibited and/or annexed is to the effect that H.E Uhuru Kenyatta, decreed that all landless residents of Mukuru kwa Njenga be issued with title deeds or leases, then the question that arises is whether the President has any powers to direct issuance of title or leases and/or alienation of any land, let alone private land," ruled Justice Mboya.

The judge noted that the 2018 case took a long to settle, as the residents delayed complying with court orders on filing their submissions.

He also declined to find that the residents owned the property through adverse possession. According to the judge, there was no evidence that they had lived on the property since 1958.

The residents were also opposed to the government's plan to build Catherine Ndereba Road in the area. They claimed that they were not consulted and were not involved in the design process.

However, Kenya Urban Roads Authority disputed the claim arguing that when it was carrying out a feasibility and impact assessment of the intended road, a number of residents were involved.

According to the agency, the intended road was critical as it would open up the slum.

Justice Mboya found that the road should be built on public land and not on the property.

Orbit also opposed the case. Its representative Sachen Chandaria told the court that the firm had bought the property from the National Bank of Kenya in a public auction.

Chandaria asserted that Orbit Chemicals has a right to develop the property.

He revealed that there was a similar case that was filed in 1996 by the residents through their representative Amina Mohamed and seven others challenging eviction.

The judge heard that the 1996 case was dismissed in 2006.

Chandaria stated that Orbit Chemicals sued the AG in 2004 over a caveat that had been placed on the same property.

In this case, according to Orbit Chemical's representative, the court in 2012 ordered the AG to pay Sh6 billion for loss of income.

He said that although the firm won, the government has never obeyed the court orders to date.