- Mabeya held that the commission cannot hold the land together with millions of shillings in compensation.
- He officials of NLC had fraudulently issued an award of Sh109 million out of which they shared Sh54 million amongst themselves.
A judge has ordered the de-gazettement of land earmarked for construction of Mombasa Southern bypass and the Kipevu New Highway Container link road.
In a move seen as a blow to the National Land Commission, High Court judge Alfred Mabeya held that the commission cannot hold the land together with millions of shillings in compensation that was to be awarded to Tornado Carriers Limited.
This, the judge said, amounts to deprivation of property without compensation. The land in question is in Port Reitz.
The court also quashed charges and prohibited commencement of a case against two directors of Tornado Carriers, Shakil Ahmed Khan and Nazil Ahmed Matabkhan, who were arraigned last year in May at the anti-corruption court over conspiring to commit fraud through the payment of Sh109 million.
The award, it was noted, was purported to be for compulsory acquisition of land for the Kenya National Highways Authority in 2017, but NLC is said to have forged Tornado Carriers documents and split the money amongst some of its officials.
The judge also quashed a decision by the Directorate of Criminal Investigations to investigate, arrest and charge the duo.
“Unknown to them, the officials of NLC had fraudulently issued an award of Sh109 million out of which they shared Sh54 million amongst themselves. There is no dispute that the petitioners were not involved in the initiation of the compulsory acquisition of the property. They were unaware of the award and they found a letter relied on for the award, which was forged,” Mabeya said.
In a petition dated May 30, 2019 the two directors, who are father and son, said Kenha and NLC sought to acquire a portion of the property and an award dated October 6, 2015 by NLC of Sh34,501,110 was given.
Through their lawyer Kinyua Kamunde, they said they rejected the award on grounds that the remainder of the land would be useless as it would be inaccessible and cut off.
“They made a proposal that NLC takes both properties for Sh180 million,” Kamundi said.
The EACC, in response to a suit filed by NLC deputy director of valuation and taxation Joash Oindo, said the amount was inflated to enable the officials get kickbacks.
In an affidavit, Khan had said his father who suffered a stroke 16 years ago and another stroke 11 years ago and on account of his age will have his health and life severely threatened if he is subjected to continued harassment and intimidation, including imminent incarceration.
They were charged in May before Nairobi anti-corruption chief magistrate Lawrence Mugambi with conspiracy to defraud and knowingly acquiring Sh55 million belonging to Kenha, offences said to have been committed between January 11 and December 5, 2017.
They have been out on Sh15 million bond.
Edited by Henry Makori