Residents of Mutomo village in Gatundu South are a happy lot after a lands tribunal quashed a decision by the National Land Commission to compulsory acquire their land for the expansion of Mama Ngina University College.
The tribunal led by Dr Nabil Orina said the criteria were not met for the compulsory acquisition of the land.
Orina faulted the respondents in the case for failing to show that the expansion of the University as intended was triggered by a public demand for an institution of higher learning in the area.
Mutomo area is within close proximity of other public universities such as Kenyatta University and Jomo Kenyatta University.
The tribunal after analysing the evidence produced before it said it was clear that the project was not a priority. They based this on the fact that funds were not set aside to facilitate the same.
"It is evident to us that the state was not ready to undertake this acquisition for the failure to provide the necessary funds that would compensate those whose homes were to be involuntarily taken," the tribunal said.
Orina said failure to deposit funds with the commission before acquisition meant that people may end up being displaced without the necessary means to settle somewhere else.
Most of the residents in Mutomo have an ancestral claim to the land. They have buried their forefathers and kinfolk on the said land while others have explored small-scale farming.
At the time of filing the case, Giciri Thuo and 151 others argued that there was no public participation and that the intended acquisition of private land was not in the public interest.
The case was initially filed before the Environment and Land Court but was subsequently transferred to the Lands Tribunal.
They sued the National Land Commission, Mama Ngina University College, Kenyatta University, Ministry of Education and Commission for University Education (respondents). Professor Zipporah Ng'ang'a of the University testified before the tribunal.
According to the records, she indicated that the establishment of the University in three different locations was going to be costly and that the acquisition of land on the basis of the willing buyer-willing seller was impractical.
"Essentially, her testimony was that it is cheaper to dispossess private land owners of their lands than sticking to the initial plan of locating the University in three different locations," the tribunal said.
Orina faulted her line of argument saying in such cases the state must always resort to the lesser evil in protecting the right to private property ownership.
The initial plan for the University was that it was going to be located in three different locations—Mutomo Primary School, Kiganjo Polytechnic and Ruburi Primary and Secondary Schools. But they later rescinded this plan arguing that it would cost them an arm and a leg.
"The University was entitled to redesign the initial plan but we do not find that revisiting that plant to affect a large number of Mutomo residents most of whom have an ancestral claim to the land was necessary and justified," Orina said.
In closing the tribunal said the commission is under a legal obligation to ensure that acquiring authorities comply with the constitution and law before an acquisition is commenced.
