BY SAM ALFAN.
A Nairobi court has suspended an order for the eviction of more than 10,000 residents of Mukuru Kwa Njenga in Embakasi dealing a blow to Orbit Chemical Limited.
Milimani Senior Resident Magistrate G. Mmasi set aside the eviction order after Nairobi Governor Mike Sonko moved to challenge the planned eviction, arguing that the company together with Zacharia Baraza, who trades as Siuma had already brought bulldozers and earth moving machinery, ready to demolish the structures.
And after hearing the application by Sonko, the Magistrate said, “The order made on January 14, 2019 and issued on April 4, 2019 is herewith vacated and set aside entirely.”
The Governor under certificate of urgency through lawyer Harrison Kinyanjui filed application seeking to stay the order, which was obtained ex-parte by the company.
The order had directed the officer commanding Embakasi police station to supervise eviction and enforcement.
Kinyanjui told the court that the county government wants to demonstrate that the original applicant, Zachariah Baraza T/A Siuma and Orbit Chemical industries limited misled the court into issuing eviction orders without jurisdiction and against the express provisions of the Land Act.
“The original applicant, Baraza sought to enforce orders that have since elapsed by effusion of time (being in excess of 12 years subsequent to their issuance) by reason of which the orders or eviction issued are based on an illegality,” said the County.
Governor Sonko moved swiftly and stopped the eviction of 10,000 families residing in the property.
The Governor said the county government stands to suffer spill-over effects if the evictions are carried out as planned.
“That neither Orbit Chemicals is the registered owner of the suit property and therefore the suit constitutes a gross abuse of the court process,” he said in the papers filed in court.
He added that no certificate of title in whatever the character provided as proof by the company nor was an official search certificate tabled in court as prove of ownership.
He further told the court that the execution was carried by a party not entitled to such order’s orders at all in law.
Governor Sonko told the residents of the populous informal settlement in Embakasi their land is public property.
While holding a meeting with representatives of the slum residents at City Hall, Sonko said the disputed piece of land was given to squatters in the 1990s by the national government, but unscrupulous land dealers forged ownership documents and later sold it to private developers.
“The land in question is public property since the government allocated it for settlement of squatters after a motion on the same was approved by the National Assembly. We are going to present the facts before the court because we know the land is public property,” Sonko said.
The Governor said his administration stopped the demolition of houses in slum areas until the county and national governments implement the construction of affordable houses for slum residents.
The evictions were to be carried out after Zachariah Baraza, who trades as Siuma and Orbit Chemical Industries limited obtained seeking to evict the dwellers after winning a court battle. OCS Embakasi Police station was ordered to supervise eviction.
“The stay of execution of the order made on14th January 2019 and issued on 4th April 2019 in this proceedings is hereby stayed pending inter parte hearing of this application,” ruled Ombeja.
The court enjoined Nairobi County Government as an interested party in the matter.
The Governor’s decision was provoked by the DDC meeting held on May 23, after which Governor Sonko blasted Embakasi South MP Julius Mawathe on phone.
Te county government wants to demonstrate that the original applicant, Zachariah Baraza T/A Siuma and Orbit Chemical industries limited misled the court into issuing eviction orders without jurisdiction and against the express provisions of the Land Act.
Governor Sonko sought for a status quo to protect the innocent victims. Kinyanjui argued that the matter was urgent and ought to be heard expeditiously as Orbit Chemicals have set bulldozers and earth moving machinery on the disputed parcel, ready to commence evictions.
“The original applicant, Baraza sought to enforce orders that have since elapsed by effusion of time (being in excess of 12 years subsequent to their issuance) by reason of which the orders or eviction issued are based on an illegality,” said the County.
Baraza and Orbit are abusing the court process when they are seeking to enforce orders ostensively issued within Nairobi HCCMisc.784/1996 which suit ought to have been invoked by original applicant for any execution process and consist of the best forum.
