BY SAM ALFAN.
University of Nairobi has asked the court to issue permanent injunction against Wathanangu Holding ltd in ownership of a plot in Nairobi’s Upper Hill area.
In a petition to the Environment and Land court, the university also sought an order blocking Wathanangu Holdings or its agents and servants from disposing off, charging, leasing or any other manner dealing in Grant No. I. R. 65345, L.R No. 209/12109, Nairobi.
The university argues that a Letter of Allotment to M/s Silver Clouds Investments limited was fraudulent and illegal.
Through lawyer Patrick Lutta, UoN wants the court to declare that the allotment by the Commissioner of Lands was fraudulent, irregular, illegal, null and void.
Kenya Medical Training Center and National Land Commission have also disputed the claims by the firm, which is seeking Sh5 billion as compensation for the land.
The commission denied making decisions that cumulatively deprived the firm of the land.
NLC further denied that it has denied the company the opportunity to develop residential apartments, which the plaintiff had projected to earn rental income with effect from 1ª January 2001.
“The commission is stranger to the contents of paragraphs 27 and 28 of the plaint in their totality and denies that Wathanangu Holding ltd incurred loss of rent and compound interest on annual rent as a result of its actions or omissions and that it owes it the same as per the amounts calculated in paragraph 29 of the plaint and puts the plaintiff to strict proof of the same,” court heard.
KMTC argued that it is also a stranger to the allegation that the cost of construction for the alleged project has escalated by a sum of Sh. 493,996,534 for the period from 2001-2025 as claimed by the private firm.
Consequently, KMTC stated that Wathanangu’s claim against it as alleged total loss in the sum of Sh. 5,144,142,255.00 towards loss of annual rent, compound return and building cost escalation as set stated in its plaint is misconstrued, ill-advised and an abuse of the process of the court.
Through lawyer Lutta, UoN told Environment and Land court Judge Korros that the land is public property.
“Wathanangu Holding ltd having acquired the suit property through unlawful process is not entitled to any protection under Article 40 of the constitution,” lawyer Lutta submitted.
Lutta told the court that the Office of the Commissioner of Lands having been abolished by the operation of the law and the NLC established to take over the obligations of the Commissioner of Lands is mandated by law, to take such steps to revoke illegally alienated public land including the Suit Property.
“The Land Commission is also bound to issue a grant to the University upon cancellation of the Plaintiff’s Grant,” court heard.
The court heard that the Land Registrar is by law mandated to correct any irregularities by rectifying the Register of Land if any registration has been obtained by fraud.
The Land Registrar, Lutta said, is equally bound to rectify the Register of Land if ordered by this court to do so including cancellation of Grant issued to the Wathanangu Holding ltd on the Suit Property.
He added that in order to streamline the facilities of the Public Health Institutions in the Kenyatta National Hospital Complex, the Office of the President appointed a Standing Committee on the implementations of the Recommendation on Kenyatta National hospital with special reference to research teaching and healthcare (later called “the Mutitu Committee”).
The same was chaired by CN. Mutitu then, a Permanent Secretary in the Ministry of Energy.
The Mutitu Committee, he added, considered demarcation of all the government land in the Kenyatta Hospital Complex and resolved that the same be allocated to the public institutions operating thereon.
Lawyer Lutta told the court that The Mutitu Committee in a letter dated 24th December 1996, forwarded a Letter of Allotment Ref No. 24803/V/46 to the University’s Vice Chancellor which allocated the University about 7 un-surveyed plots of land including the contested property.
“By a letter dated 13th August, 1997 the Mutitu Committee forwarded to the University’s Vice Chancellor a copy of the Part Development Plan Ref. 42/21/95/04A prepared by the Ministry of Lands and Settlement for all the un-surveyed parcels of land allocated to it, to enable the University to apply for the Title Deed to be processed once the land had been surveyed by the Director of Survey,” he said.
He pointed out that suit property is marked as NO. 7, on the said Part Development Plan (PDP), Wilson Gachanja) as Commissioner of Lands duly approved the said PDP on 11th December 1995.
He added that while carrying out the survey, the Surveyor discovered part of the portion of Plot 71 on the Part Development Plan Ref. 42/21/95/04A had been allocated to private developers.
However, the land had been set aside as public land and had been allocated to public health institutions operating around Kenyatta National Hospital.
The said portion allocated to private developers turned out to be the suit property of which the title had been issued to the company.
Upon the discovery that part of the portion of the Plot 7, had been allocated to private developers, the Chairman of the Mutitu Committee, wrote to Wilson Gachanja, as the Commissioner of Lands on 30th March, 1999 informing the Commissioner of Lands of the resolutions made by the Committee and requesting him to confirm that no part of the said parcel land had been issued to private developers. Gachanja, court documents stated, did not respond to the said letter.
Court heard that unknown to any of the public institutions in the Kenyatta National Hospital Complex, Gachanja, the Commissioner of Lands, had secretly issued a Letter of Allotment to M/s Silver Clouds Investment Limited which in turn sold to the Plaintiff and a Grant was hurriedly processed.
