NSSF loses Sh2 billion land payout after validity of title deeds questioned

NSSF claims ownership of the land in Mlolongo that was acquired to construct a dual carriageway. [File, Standard]

The National Social Security Fund has lost a Sh2 billion compensation battle against the government in a land dispute.

In a verdict that is a major blow to the pensions body, Justice Lucy Njuguna found NSSF could not explain the origins of 13 title deeds worth Sh300 million.

In its case, NSSF argued that the properties are now worth Sh2 billion. The implication of the orders is that NSSF has lost Sh2 billion in an investment made in 1995.

Justice Njuguna said NSSF title was just a 'mere' paper with no probative value, meaning it bought 'air' as the properties were public.

"This court cannot uphold the titles of the plaintiff when the roots of such titles are unknown to this court. It follows that the quest by the plaintiff to be compensated is not merited and the claim for damages fails," said Justice Njuguna.

The properties at the heart of the case are all aligned next to each other in the sequence of their plot numbers, located in Mlolongo area.

The judge said she could not vouch for legalities of all the 13 titles, since one indicated the parcel was right in the middle of the road. She observed that NSSF bought the land from the second owner six days before it was transferred from the first owner.

NSSF moved to court arguing that the government had illegally hived off its land for construction of a dual carriageway between Embakasi and Athi River.

The fund asked the Lands Court to declare the properties private. It also sought compensation for the 13 as it had lost its investment.

NSSF told the court that it bought the properties through an agreement dated January 25, 1995. In response, the Attorney General denied that the government had illegally taken NSSF's properties.

The government's legal advisor stated that in 1972, the Ministry of Works identified land required for construction of Athi River Road along Embakasi.

According to the AG, the government in 2006 embarked on construction of a dual carriageway and associated service roads along the Nairobi Airport-turn off Athi River section which area also holds the Athi River weighbridge axle which is due for expansion and modernisation.

He asserted that the land cannot be transferred for private individual use.

NSSF called its property management officer as a witness. He stated that NSSF's properties, LR 17645 was among other parcels of land earmarked for demolition for allegedly encroaching the road reserve.

According to NSSF, former Commissioner of Lands Wilson Gachanja on September 27, 1994 issued a grant to Makueni Holdings Ltd. Subsequently, on January 31, 1995, the property was transferred to Kingorani Investments. Kingorani sold the property to NSSF.

According to NSSF, a surveyor confirmed that the property was right, away from the road. Meanwhile, LR 17645 was split into two and NSSF sold 1.5 acres to Oilcom Ltd.

The development on the property, the court heard was Sh60 million while the cost was Sh27 million. NSSF argued that all the properties are worth Sh2 billion.

It also emerged that NSSF had transferred three properties to Prime Land Kenya Limited who in turn transferred the same to other entities.

According to NSSF, it continues to pay rent and rates. It argued properties are of immense economic investment value and are held on behalf of the Kenyan workers, hence, are public properties.

It also argued there was no defect in its titles that could be raised by the registrar of titles or commissioner of land. The fund argued that it conducted searches. Despite this, it had no searches in its court documents or survey plan in a bid to show that it conducted due diligence.

However, it emerged that Oilcom had also sued the government but lost its case before the Court of Appeal. In its reply, the AG called two witnesses. The court heard that once the government brought the properties in 1972, the then owners never came back to ask for compensation.

AG argued that NSSF could not explain or show that it conducted due diligence. In addition, the AG argued that it never demonstrated the root of its title.

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