The National Land Commission has established that Deputy President William Ruto’s Weston Hotel is built on public land but will not order it to be demolished.
In a decision causing a storm between the NLC and the Kenya Civil Aviation Authority, the commission wants Ruto compelled to pay for the 0.773ha plot opposite Wilson Airport at the current market rate. Last year it was valued at Sh300 million.
But KCAA, which is Kenya’s air travel regulator, insists the four-star hotel should be torn down because it is compromising safety.
The authority says buildings near the airport should not be higher than two storeys but the Weston has five floors.
Ruto also failed to secure necessary approvals from KCAA.
It had wanted to build its headquarters there.
KCAA Corporation secretary Cyril Wayong’o confirmed to the Star that NLC had recommended that it be compensated.
He protested against the NLC decision, saying it will entrench impunity and revealed that the parastatal’s board of management will sit and consider an appeal.
"It will mean going forward that somebody can just grab public land and allege that he or she is an innocent purchaser, and thereafter decide to compensate, which is wrong," he said.
The NLC conclusion that the parcel is public land is likely to put Ruto on the spot following years of denial and statements that he acquired the property legally.
In 2013, the High Court ordered Ruto to surrender a 100-acre farm in the Rift Valley and pay Sh5 million as compensation to the rightful owner, Adrian Muteshi.
During the Weston probe, Ruto’s lawyer Ahmednassir Abdullahi told NLC commissioners that the defunct Directorate of Civil Aviation had been given alternative land.
However, he could not pinpoint the location of the two alternative parcels or give their reference numbers.
Abdullahi said the DP acquired the land in 2007 for Sh10 million from Priority Management Ltd and Monene Investments Limited
Before the NLC took over investigations on the Weston Hotel land, President Uhuru Kenyatta had ordered relentless demolition of structures built either on road reserves or riparian land.
Among the towering structures that were brought down were the Taj Mall, Ukay Centre and South End Mall.
Land sector players blamed the NLC for applying double standards in its policy directions.
“There are a lot of reservations about the operations of the National Land Commission and how commissioners have been handling matters before them,” complained Odenda Lumumba, chairman of the Kenya Land Alliance.
"If you are saying you are recovering public land regardless of the development on it, this land would not be an exception.”
Yesterday, Wayong’o said Constitution Article 40(6) on the right to property does not extend to property found to have been unlawfully acquired.
"Therefore, if the commission makes a finding that that property was unlawfully acquired, it does not matter who has it. Protection does not extend there. So anybody who has acquired public property unlawfully does not have the protection of the Constitution to own," he said.
A source familiar with the situation told the Star the commissioners had difficult time balancing requirements of the law and the political ramifications of any decision they made.
"They had to strike a balance and that is why they made such a decision," the source said on condition of anonymity.
According to the NLC report which the commission is yet to release to the public, fresh valuation will have to be carried out to determine the current value of the land.
Yesterday, the NLC was drafting forward letters for the parties involved and they are to be delivered to them with the report
The source said the commissioners who were holed up at their Bishop Annex offices also took into account the fact that the hotel took a Sh1.2 billion loan from KCB.
The Kenyan government has majority stake in KCB.
During the hearing, KCB lawyer Martin Muge pleaded with NLC not to revoke, the title saying any move will have ramifications for the interests of the bank.
Present during deliberations on Monday were NLC vice chairperson Abigael Mukolwe, commissioners Abdulkadir Khalif, Clement Lenachuru, Emma Njogu, Rose Musyoka and Samuel Tororei.
The 0.773ha plot L.R. No. 209/14372 opposite Wilson Airport on Langata Road was formerly the site of the KCAA central stores.
In May last year, the Weston Hotel was valued at Sh300 million, according to a report by Zenith Management Valuers Ltd.
KCAA says a scheme to grab its land was hatched in 1999.
Neither the Directorate of Civil Aviation nor the Transport ministry sought ownership papers, giving a field day to the grabbers
On June 29, 1999, then Commissioner of Lands Sammy Mwaita wrote to the Directorate of Civil Aviation, indicating he had received an application from a church group that wanted to build a church on the site.
On July 8, 1999, the Directorate of Civil Aviation objected and told Mwaita it had plans for the land, so it could not be allocated to third parties.
"This property had been set aside by the Directorate of Civil Aviation for the construction of its headquarters," Wayong’o said, adding that its management had not discussed the purported allocation.
Undeterred, on July 19, 2001, the Commissioner of Lands wrote to the Transport PS, indicating receipt of an application, this time from Kikabi Homes Limited, which wanted to be allocated the land.
Then PS Francis Muthaura, in a letter dated August 22, 2001, stood his ground and told Mwaita the land belonged to the KCAA and was not available for allocation to anybody or any company.
Muthaura’s letter was addressed to his colleague in the Land and Settlements ministry.
Attempts to grab the land, according to Wayong’o, would become more aggressive when assets belonging to the Directorate of Civil Aviation were being vested in the new KCAA.
The KCAA had been established on October 24, 2002, through the Civil Aviation Act, 2002. It took over all assets previously held by the DCA through a vesting order of October 13, 2006.
"The transition between the DCA and the KCAA was not done well," Wayong’o said.
However, in 2002, Commissioner of Lands Mwaita instructed the Directorate of Civil Aviation to move its stores from the land.
No reason was given and KCAA never surrendered its title, Wayong’o told the commission during one hearing.
"The relocation was to create room for the allotee," Wayong’o said, adding he has never come across minutes of any KCAA board meeting that approved the transfer or surrender.
As a result, the KCAA has been forced to build its headquarters on land leased from the Kenya Airports Authority.
On September 5, 2002, KCAA established that the parcel had been allocated to two companies — Priority Limited and Monene Investment Limited.
It has, however, failed to obtain crucial documents such as the Part Development Plan, the survey plan and deed plan used for the issuance of the title deed.