BY SAM ALFAN.
An activist has challenged plans by the government to allocate part of Kenyatta University’s land to the World Health Organisation (WHO).
In a case filed before the Environment and Land Environment, Enock Aura says the University’s land is not available for allocation because it was set aside for education purpose.
The activist wants the court to issue permanent injunction restraining Ministry of Education, Ministry of Land and Planning, Head of Public Service Joseph Kinyua, National Land commission and office of the President, from taking possession of any part of controversial land.
“A prohibition order be issued prohibiting the 1st to the 9th respondents from interfering in any manner with the Kenyatta University’s quiet and peaceful enjoyment of LR NO. 11026/2 in furtherance of the objects specified in the Grant 33404,”Aura says.
The activist argues that there was no public interest in the process leading to the Cabinet memo and the planned takeover is therefore, unlawfully.
“The purported land user of the World Health Organisation Medical Emergency Hub will be incompatible with the grant user of the suit land designated for Kenyatta University,” he said in an affidavit.
Through lawyer Harrison Kinyanjui, the activist says it is illegal for the government to commit a fund of US $5 million (approximately Sh600 million) for the illegal investment.
“It would be manifestly ne ultra vires for the Kenyatta University Council to purport to, or be coerced under duress or such like threats and manipulative intimidation to cede part of the land,” he said.
The activist further reveals that the alleged squatters cannot be given land because a judgment issued last year by the Environment and Land court dismissed a case filed by hundreds of squatters. In the decision, the court noted that the squatters had already been allocated 30 acres as per a list of 1984.
“An expressly unconstitutional and illegal purported alienation of about 410 acres of the suit land belonging to Kenyatta University under Article 62(1) of the constitution is imminently about to occur unless this court intervenes,” Aura said.
Aura also seeks the court to issue order prohibiting NLC from taking any action on the KU land, which will affect KU’s land.
He further seeks the High Court to declare that the purported cabinet decision made on May 12, 2022 purporting to alienate re-parcel and re-plan the land without putting it into writing is a violation of Article 153(1) of the constitution to which extent the said act is null and void.
“Unless this Court intervenes to issue the conservatory orders sought in the public interest, grave, odious and egregious violations by the cited respondents of the constitution and of statutes referenced will be occasioned, to the detriment of Kenya’s public interest,” Aura pleads.
Kinyanjui says that permitting the illegal alienation of the Kenyatta University suit land will lead to irreparable loss to Kenyans public as WHO, one of the beneficiaries of the illegal alienation of University’s land in a body domiciled outside the country.
The activist states that although Kenyatta University land is classified under Article 62(1)(b) of the Constitution as public land, it certainly is not available for alienation.
He further states that under Section 12(2)(d) of the Land Act, any land set aside for Education purposes is insulated from such alienation.
He adds that therefore both the Cabinet and the President have no basis at all to take an inch of Kenyatta University land.
According to him, even if there was any such basis to take up Kenyatta University land, there is an elaborate legal process laid out in Section 14 of the Land Act.
“This procedure required the National Land Commission to publish in a Kenya Gazette the intention to acquire the land at least 30 days before any such action is taken to give members of the public due notice,”he adds.
He says to date no such Gazette Notice exists.
He also says that the law strictly requires 3 separate weekly Notices published in a national newspapers every week for 3 consecutive weeks.
Aura states that Kenyatta University land being public land can never be transferred to be vested in private entities such as World Health Organization, the NMS or Northland’s City.
Aura adds that under the Land Act ,it is to be administered by the National Land Commission.
In his Court papers, Aura says that under Section 61(a) of the Universities Act, even the Kenyatta University Council has no power to transfer an inch of the land to anyone.
He adds that the University’s Council can only administer and manage the land but not transfer it.
The case is before Environment and Land Court Justice Loice Komingoi.