Fears of demolition as Prisons win case against 17 High Ridge residents

17 residents did not prove their case. [iStockphoto]

The Environment and Lands Court in Nakuru has faulted the decision by the Commissioner of Lands alienating public land for private use.

Judge Anthony Ombwayo, in a judgment delivered last week, said the Commissioner of Lands had a duty to protect land alienated from the government and occupied by government departments such as prisons, the police, public works and schools.

The judge delivered the judgment in a suit filed by 17 High Ridge residents in Nakuru County against the Commissioner-General of Prisons.

Judge Ombwaya, in the judgment, said the Commissioner of Lands had no powers to alienate the land unless it was for religious, school and other purposes.

"I do find that it was un-procedural for the Commissioner of Lands to alienate land where there was a prison building and allocate the same to Patricia Stewart Peters as he had no authority to do so. The subsequent sub-division and transfers to Mr Martin Luther Olweny and finally to the resident was illegal and cannot be sanitised by the court," ruled the judge.

Ombwayo noted that instead of protecting government organs, the commissioner breached the trust bestowed upon him and allocated the same land for private use.

The judge noted a gazette notice issued in 1961 could not have affected the prison building alone. The judge noted that the land had already been set aside for the prison services.

"I do find that the gazette notice was not alienation of public land but a statement that the land was being utilised for public purpose by the State organ and therefore not available for alienation for private use," ruled the court.

Illegal titles

The court said the approval by the Commissioner of Lands was an act of illegality as there was a prison building on the land and the titles created were illegal and liable for cancellation.

The judge said the 17 residents had not proved their case on the balance of probability and the parcels of land they occupied fell within the prison land by gazette notice Number 361 of 1961.

"In conclusion in this matter, I do find that it was very clear that the parcel of land comprised a gazetted prison building that was so visible, and yet the Commissioner of Lands allocated the land to third parties for private use without considering the public interest. I do find the plaintiff suit has no basis and therefore dismissed," ruled the court.

Seventeen residents had moved to court and sued the Commissioner-General of Kenya Prison Service and the Attorney-General.

Reclaimed land

The 17 claim prison warders from Nakuru GK Prison went into various parcels of land they occupied and started marking commercial and residential buildings with the letter X with the initials KPS, claiming that the land formed part of Nakuru GK Prison land.

They told the court that the land had never been part of prison land. They said they acquired the land through purchase and have been in occupation for over two decades, with development running into hundreds of millions of shillings.

Part of the land holds the Gioto dumpsite. Individuals have also put up commercial and residential buildings in the area.

They wanted the court to issue orders permanently barring the Kenya Prisons Service from trespassing, marking for demolition, or inferring with their peaceful and quiet possession of the several parcels listed in the case.

The Commissioner General Kenya Prisons opposed the application and claimed the residents acquired the land through fraudulent means.

Mary Gatakaa, a surveyor with Kenya Prisons Service, said in a statement filed in court that the suit land belongs to Nakuru Prison.

Gatakaa said the land was gazetted in 1961 through notice No 361 of 1961 as plot Number LR 452/1/4 measuring 628 acres. The land, she noted, has never been de-gazetted.

The land, she added, is documented on the survey plan and demarcated using iron pins in concrete that are still in place to date.

Gatakaa pleaded with the court to have the case by the 17 residents dismissed and the titles in their possession cancelled.