Court Restrains NMK, Politicians and County from Trespassing on Prime Land

By The Coast Reporter

The Environment and Land Court has restrained the National Museums of Kenya (NMK), two politicians and the Kilifi County government from trespassing on a prime parcel of land worth Ksh150 million situated at Mtwapa area.

The court further restrained NMK, Mr Haron Ndundi, Kilifi South MP Richard Ken Chonga and the county government from interfering with Mr Adil Salim Awadh’s rights to peaceful, quiet possession, control, ownership, and occupation of the land without first bringing it under the armpit and control of NMK as established by law.

It issued a declaration that the land, known as Land Plot Number 318, Section III, Mainland North, registered as Land Title Number C.R. 8741, situated at Mtwapa within Kilifi County, is private land registered in the name of and owned by Mr Awadh.

The court ruled that Mr Awadh had proved that the land is private property not under the control or restriction of NMK.

Justice Evans Makori ruled that nothing had been shown to indicate that the land was obtained through fraud, acquired unprocedurally or corruptly.

“The alleged setting aside as a national monument or heritage site has not been proved,” the judge ruled.

He also said that the suit property has been private land for over a century, as shown by the search certificate and survey report.

The judge noted that a review of the Gazette Notices shows that a 1935 Gazette Notice relied by NMK was vague and lacked parcel numbers, coordinates, maps, or surveyed boundaries and that on its face, it cannot identify the land as part of the ‘ruins on the North bank of Mtwapa Creek’.

The court also said that as correctly asserted by the plaintiff (Mr Awadh), rights in private land cannot be extinguished by implication or administrative inference.

It also ruled that where the state intends to subject private land to public control, it must do so in clear and unambiguous terms, and the landowner must be accorded a hearing.

The court also said that NMK had failed to establish its legal mandate and control of the land and that it must follow proper legal procedures to acquire it (land) and bring it within its purview.

It ruled that a review of the evidence adduced by Mr Awadh shows that, since the land was alienated as private property, there is no evidence indicating that the owner(s), whether present or past, were required to seek permission from NMK or the responsible cabinet secretary to undertake any use, development or improvement.

“The evidence on record affirms that the plaintiff has shown that the suit property is private property, with a status dating back to 1922 to date, and that no legal process has been adduced to establish it as protected or public heritage site as the gazette notices produced refer to adjacent plots,” ruled the court.

The plaintiff told the court that he was the registered owner and proprietor of the land where he has a residential home.

The plaintiff testified that he purchased the land from a bank by way of a purchase through private treaty sometime on August 23, 2022.

He contended that ever since the perimeter boundary wall on the land was erected, NMK began alleging that it (land) belongs to them (NMK).

He told the court Mr Ndundi, Mr Chonga and the county government also started alleging that the property was public land.

NMK said that the ruins on the North bank of Mtwapa Creek were declared protected monuments because of the rich archaeological and paleontological materials in the area.

It stated that a 2017 Cultural Heritage Impact Assessment noted that the suit property falls within the stated gazetted ‘ruins on the North bank of Mtwapa Creek’.

NMK told the court that the acquisition of title to the land in 1937 together with subsequent transfers, including the transfer to the plaintiff in 2022, was illegal, unprocedural, or obtained through corrupt schemes, there by rendering them null and void.