A 32-apartment project by a private developer is set for demolition after a Kisumu court declared it was built on public land.
The imposing prime property situated along the Dunga-Nanga Road opposite Kisumu's Yacht Club was worth Sh180 million by the time the suit was filed.
Kisumu City manager Abala Wanga on Wednesday confirmed that a decision to flatten the Sunshine Villas Limited apartments was arrived at following a judgment delivered by the land and environment court in Kisumu on November 16, 2023.
The apartments that have been up for sale belong to a renowned Kisumu businessman.
They were constructed on public land, according to the determination of the court.
The businessman moved to Court on April 30, 2018, claiming he was the registered owner of the parcel of land known as Kisumu Municipality Block 13/302, referred in court documents as the suit property.
He sued the city manager and the County Governments of Kisumu who were listed in the matter as 1st and 2nd Defendants.
In the matter, EACC was enjoined as an Interested Party having carried out an investigation into how the land was transferred from public to private ownership.
While moving to court to stop the demolitions, the businessman noted that he had obtained a loan of Sh180 million from a Bank for the construction of the apartments on the suit property.
He said he would be unable to service the loan if the Defendants continued further with the demolition of the developments on the suit property.
According to the court records, he purchased the land from another businessman at a cost of Sh 17 million in 2012.
Upon purchase, the businessman charged the suit property to another bank together with other parcels of land to service the Sh33.5 million loan.
According to the court findings, the controversial land was fraudulently registered to the 1st owner on December 16, 1996.
The records obtained from the courts in regard to the case indicate that the suit property is a leasehold from the government for a term of 99 years with effect from November 1993.
In a 75-page judgment, Justice Samson Okong'o stated that the lease in respect of the suit property was never produced in evidence by the businessman.
The businessman had told the judge that the Defendants intended action of further demolishing its structures on the suit property was contrary to the law, oppressive and capricious.
During the trial, the businessman told the court that on or about February 2017, he commenced construction of up-market residential apartments on the suit property after obtaining all requisite approvals.
Plaintiff averred that on or about April 4, 2018, the city authorities allegedly caused to be marked for demolition, the walls of the suit property.
He alleged that the Defendants moved in and demolished part of the suit property even though he had obtained all approvals and complied with all statutory and legal requirements in relation to the project it was undertaking on the suit property.
He further told the court that on April 27, 2018, while at the suit property, through his director, he was served with a letter dated April 23, 2018, revoking all previous approvals issued to him by the Defendants threatening to demolish the developments on the suit property within 48 hours.
The court heard that on the 29th April 2018 at 10 PM, the Defendant agents, servants and/ or employees commenced a demolition exercise on the suit property.
He said they demolished the boundary wall, balconies, canopies, and internal walls, and in the process stole tools and equipment including a vibrator, poker, water pumps, electrical and plumbing equipment, and site documents among others.
He further alleged that no written notice was issued to it by the Defendants and no hearing was accorded to it prior to the Defendants’ placing markings on the walls of the suit property and proceeding to undertake demolition of the structures thereon.
Plaintiff averred further that he was also not given a notice or a hearing prior to the revocation of the approvals it had obtained from the Defendants through the said letter dated April 23 2018.
He told the trial judge that the said actions by the Defendants were undertaken against the rules of natural justice and in violation of the Plaintiff's fundamental rights as enshrined in the Constitution of Kenya.
The businessman asked the court to direct the Defendants to bear the Cost of restoration and repair works in respect of damage occasioned by the Defendants' willful unlawful actions of demolishing the Plaintiff's property at Sh 142,055,447.
He also wanted the judge to issue a permanent injunctive order restraining the Defendants, their officers, servants, agents or any other person or entity affiliated or associated with them or acting through or under their instructions from demolishing, alienating or in any other way interfering with or dealing with the property, development and construction on all that parcel of land.
The Defendants filed a joint amended statement of defence on September 18, 2020, where they denied all the claims by the Plaintiff.
In the judgment however, Justice Okong'o noted that from the evidence on record, it appears that the suit property was allocated to Jayantilal Pragji Sedani to use for single residential purposes which the Plaintiff changed to multiple residential purposes/apartments.
"It is beyond argument that the purpose for which the suit property was allocated to Jayantilal Pragji Sedani was not the purpose for which the land was reserved," he said.
The Judge observed that the land that was allocated to the first owner was reserved for an open space for public use.
"I am in agreement with the Interested Party that the suit property was not unalienated government land. The same was therefore not available for alienation by the Commissioner of Lands for private purposes," he added.
Justice Okong'o further stated that the land, having been reserved for a public purpose, the same stood alienated.
"Being a public open space, it was not inconsistent with its use for Kisumu Water and Sanitation Company (KIWASCO) to lay its water pipes serving Kisumu residents underneath it," he ruled.
The judge noted that the land allocated to the first owner had KIWASCO’s four (4) huge water pipes measuring between 16 and 20 inches below it.
" The allocation of the suit property to the first owner having been undertaken illegally, could the Plaintiff acquire a valid title from him? The answer is in the negative," he added.
He further observed that the first owner had no lawful title in the suit property that he could pass to the Plaintiff.
"The Plaintiff had contended that he purchased the suit property in good faith and that he was an innocent purchaser without notice. I wish to say that however innocent the Plaintiff may have been which I do not accept it was, such innocence could not pass a valid interest in the suit property to the Plaintiff," he noted.
He argued that the interest that was to be passed to the Plaintiff was that which was being held by the first owner.
"The first owner held an illegal, null and void title in the property. That is what he passed to the plaintiff. Nullity can only beget nullity," he said.
He said he was in agreement with the Interested Party( the EACC) that all the signs were there that the suit property was created from land that was reserved for public purposes and that Plaintiff ignored the same.
The court visited the suit property on April 19, 2023, in the company of the parties.
" KIWASCO’s water treatment plant is situated next to the suit property and its huge water pipes that are laid inside the suit property can be seen with the naked eye," the judge added.
" It was obvious that if any damage to the said pipes would occur, KIWASCO would require space to carry out the repairs and such space could only come from the suit property, " he noted.
The court noted that even after the Plaintiff claimed to have moved its boundary 3 meters inside to leave some room for the pipes, some of the pipes were still inside the Plaintiff’s perimeter wall.
" Due to the foregoing, it is my finding that the Plaintiff did not acquire a valid title in the suit property. Having acquired a null and void title, the title held by the Plaintiff was equally a nullity," Judge Okong'o added.
While dismissing the suit filed by the owner of Sunshine Villas Limited, Justice Okong'o issued a declaration that the issuance of a lease over Title No. KisumuMunicipality/Block 13/302, the registration of the said lease and the issuance of a certificate of the lease in respect thereof by the Registrar in favour of the first owner of the property, the first owner was null and void.
He also issued a declaration that the transfer of lease over Title No. KisumuMunicipality/Block 13/302 by the said the first owner to the plaintiff, the registration of the said transfer of lease and the issuance of a certificate of the lease to the Plaintiff was null and void and ineffectual to confer a good title upon the Plaintiff.
" A declaration is issued that Title No. Kisumu Municipality/Block 13/302 is land set aside as an open space and should be under the custody of the County Government of Kisumu," he said.
"The register of Title No. Kisumu Municipality/Block 13/302 is hereby rectified by the cancellation of the registration of the property in the names of Jayantilal Pragji Sedani and the Plaintiff and the certificates of leases that were issued to them, " he directed.
He further directed that the ownership of Title Kisumu Municipality/Block 13/302 be restored to the Government of Kenya who shall hold the same in trust for the residents of Kisumu for the public purpose for which the land was reserved.