•The implication of the decision is expected to be far-reaching as the City Hall may issue demands for back payment of rates by the KDF amounting to billions.
• Court papers say "In as much as the appellant does not have a valid title to the suit property, DoD is similarly tainted".
Image: FILE
The Supreme Court has ruled that the KDF does not own the parcel of land on which its Embakasi Garrison sits and that its owned by the Nairobi County.
The decision on Friday is, however, a blow to Kayole Trading Estate, which had claimed to own the land and even obtained an eviction order against the military installation or be paid Sh1.5 billion for it.
The business had sued at the High Court claiming that the freehold parcel had been alienated and given to it.
Thereafter, this parcel of land was transferred to the defunct Nairobi City Council for valuable consideration. A transfer was duly registered on November 22, 1971. In 1973, the land was subdivided into eight parcels.
The piece in question is numbered LR No22524, Grant NoIR 85966 measuring 83.910 hectares.
A brief summary for media shared by the Supreme Court indicated that at the High Court, Torino Enterprises Limited, claimed that it acquired the suit property from Renton Company Ltd, a company it claimed had acquired the property from NCC through an allotment letter dated December 19, 1999.
It also argued that the Department of Defence had encroached in 2005, fenced off 90 acres, and unlawfully trespassed on its property.
The High Court agreed with the enterprise, holding that DoD was in contravention of Article 40 (3) of the Constitution and its occupation, retention, and continued occupation of a portion of the suit property amounted to an illegal compulsory acquisition.
The court ordered that DoD pay up Sh1,530,000,000, being the market value of the said land as per the valuation report produced in court or its cedes the parcel.
The government, through the Attorney General, appealed the decision in the Court of Appeal, which overturned it.
It dismissed the appeal on grounds that the suit property was not unalienated government land within the meaning of Section 2 of the repealed Government Lands Act but was private property and as a result the Commissioner of Lands lacked the power to alienate or allocate it.
Consequently, the court concluded that neither Renton Company Ltd, nor the DoD had acquired a valid interest in or over the suit property.
While the business lost both the contested possession of the land and the sum of money it had been awarded, the DoD was told that the title it wielded as proof of ownership was invalid. The court said the land reverts to the original owner which was vested with the Nairobi City Council.
The Supreme Court also concurred with the Court of Appeal that the documents provided by the DoD marked as secret and confidential to prove its ownership were inadmissible as evidence in the case.
“In as much as the appellant does not have a valid title to the suit property, DoD is similarly tainted. Although it has been able to prove that it has been in exclusive occupation and use of the Suit Property from 1986 to date, with the full knowledge and authority of NCC and the Commissioner of Lands, there is nothing on record to prove that DoD ever acquired valid title to the suit property," the judgment delivered on September 22 reads.
"Just as the Commissioner of Lands could not allocate the said land to Renton for reasons already canvassed, so also was he equally hamstrung in relation to DoD."
Analysts believe that the decision is still friendly to DoD because had it lost, it could mean that the intricate security investment at the garrison would have to be vacated.
Besides, it only moved from the national government to the county government.
The implication of the decision is expected to be far reaching as City Hall may issue demands for back payment of rates by the KDF amounting to billions.