• The state wanted to seize the 20-metre portion for the construction of the Northern Bypass.
• Records at the Commissioner of Lands and the Survey of Kenya show the width of the road is 60 metres and not 80 metre.
Twenty-nine residents of Runda Mimosa in Nairobi can now have undisturbed sleep after the Court of Appeal ruled that they rightfully own a portion of land claimed by the state.
The dispute arose in in 2010 when the government earmarked the affected premises for demolition to recover 20 metres to add to 60 metres for the construction of the Northern Bypass.
The 12-kilometre bypass has since been built and links Ruaka trading centre on Limuru Road to Kiambu Road through the upmarket Runda estate.
The residents sued the Attorney General, the ministries of Lands and Roads, the Kenya National Highways Authority and the Kenya Urban Roads Authority in the High Court.
They told the court that they had not encroached on the suit land and produced official documents from the Lands Ministry showing that the road reserve was 60 metres wide and not 80 metres as claimed by the government.
In 2013, the High Court ordered the residents to surrender the 20 metres but they appealed the ruling.
The appellants include former Kitui Senator David Musila and media manager Ian Fernandes.
In a judgment read by Justice Fatuma Sichale, the appellate court noted that the residents conducted searches and found that the titles of the original owners were free of encumbrances and that the records at the Commissioner of Lands and the Survey of Kenya showed that the width of the road was 60 metres and not 80 metres.
The judge said that the government had, in the 1970s, sought to compulsorily acquire portions of land from the original owners. The process was not completed and the appellants bought their properties from private entities. "At no time had the land, the subject of this appeal, been vested in the public," the court ruled.
“These subdivisions were approved by the Directorate of Survey and individual titles/leases issued to the respective purchasers by the Registrar of Titles and /or the Commissioner of Lands.
"It is in view of the above that I have come to the conclusion that the appellants’ titles were protected by the repealed Section 23 of the RTA and Section 143 of the RLA. ... I find that the appeal herein is for allowing in terms proposed by (William) Ouko, the president of the Court of Appeal in his Judgment,” Sichale said.
The residents had sought an injunction to stop the government from interfering with their properties.
The land was in 1970 owned by Edith Cockburn, Estav Limited and Runda Coffee Estate. Part of it was in December 2003 leased to, among others, Cycad Properties Limited.
The appellants claimed they got clearance from various Government agencies before they started developing the properties. They were never informed that the road reserve was 80 metres.
They said that the road has been completed without interference with their properties.
They also said that their titles and leases issued by the Government have never been revoked or cancelled.