HOW AND WHY THE PCEA CHURCH KITENGELA HAS LOST THEIR 2.3 ACRES OF LAND AND PROPERTY WORTH KSH650 MILLION
ONCE upon a time, a man by the name Simon Sayalel Likimani (long deceased) owned almost the entire of what you now call Kitengela Town. Likimani is a famous name in Kitengela. The land was 200 hectares (about 494 acres) described as KAJIADO/KAPUTIEI-NORTH/70.
Sometime in 1991, the Government of Kenya is said to have acquired one hectare (about 2.3 acres) from Likimani to set up water infrastructure through the Export Processing Zone Authority (EPZA). There was a dispute as to whether that was the land actually acquired from Likimani or a different one.
Nonetheless, Likimani was allegedly paid Ksh142,600 by the government as compensation for the one hectare.
The compulsory acquisition was gazetted through Gazette Notice No. 2802 of 13/6/1991. But in the Gazette Notice, the main (200 hectare) land was described as OLOOLOITIKOSHI/KITENGELA/70 instead of KAJIADO/KAPUTIEI-NORTH/70. The chief Valuer however issued a letter explaining the error. The letter was dated 20th September 1991.
After the alleged acquisition of the one hectare the process of surveying and annexing it from the main KAJIADO/KAPUTIEI-NORTH/70 took a long time due to what was explained as budgetary constrains on the part of the government.
Mzee Likimani subdivided his hand into 7 parcels and sold 6 of them to other parties, leaving only one parcel now described as KAJIADO/KAPUTIEI-NORTH/13552 measuring about 0.94 hectares (about 2.2 acres). He then sold it to Minyi Virji Varsani, Menghj Manji Varsani and Vinood Hanji Varsani.
Meanwhile between 1991 and 1994, the EPZA put up a concrete reservoir, an elevated steel water tank, distribution mains and a booster pump station on a portion of the one hectare. They claim to have invested Ksh166 million to put up the infrastructure.
In October 2002, the Varsani family sold the parcel to PCEA Kitengela Church. The transfer was effected on 30th October 2002. The land is now right inside Kitengela Town, on Namanga highway.
In 2007, EPZA sunk a borehole on the portion.
In July 2008, the PCEA lost their Title Deed and were issued with another one by the Land Registrar in Kajiado, after gazetting the loss through Gazette Notice NO. 57120f 4/7/2008.
The church pout up a magnificent 200-seater sanctuary, a storey primary school and other amenities. A valuation done by Accurate Valuers Ltd indicated around 2014 indicated the church had invested over Ksh245million on the land.
Around 2013, there was an altercation between the church and EPZA when a structure put up by EPZA was destroyed.
On December 16, 2014 the Presbyterian Foundation filed the suit against the EPZA in Machakos Lands Court on behalf of the PCEA Kitengela. Presbyterian Foundation is the trustee of all assets owned by the PCEA church in East Africa.The case was later transferred to Kajiado Lands and Environment Court.
The church asked for many orders but in a nutshell they asked for an injunction against the EPZA from evicting them or interfering with the parcel KAJIADO/KAPUTIEI-NORTH/13552, a declaration that they were the legal and rightful owners of the land and that EPZA was a trespasser and illegal occupant, an order to evict EPZA from the portion and to remove the water tower.
EPZA filed their defence on 20th February 2015. They also filed what is called a counterclaim (their own claim against the PCEA and three lands offices responsible for the subdivision and transfer of the land.
The EPZA argued that the church title was not acquired lawfully. They claimed to have acquired a good “title” way back in 1991 when the government acquired the land from Likimani and paid him Ksh142,600. But there was no Title Deed in their name.
Further EPZA claimed by the time PCEA was purportedly acquiring the land in 2002, all their water infrastructure was there and the church should have sought to know the ownership before proceeding with the transaction.
And even as they put up the borehole in 2007 and fenced the portion around it, the PCEA church did not object to the construction.
EPZA said the water infrastructure, a security guard room and a pit latrine were fenced off and occupied about 0.4556 acres of the portion. They said when they learned the land had been “wrongly” transferred to PCEA Kitengela, they sought an amicable settlement of the matter but the process failed.
“The dispute between the Church and the EPZA became violent when the church pulled down and destroyed the EPZA Customer Care office,” the court observed. “ The value of the damaged property has been quantified at Ksh4 million,”
But EPZA said something rather interesting, that the church building and the school are constructed and accessed separately from their water infrastructure and the reason why they (EPZA) did not interfere in the building of the church an school was because they sought an amicable solution to the dispute. In other words, they were aware that the church was putting up mega projects on the land from 2002.
EPZA closed their case by arguing that their “miltimillion water infrastructure is in best interest of the public as opposed to the interests of the PCEA church which are only for a few members.
They asked the court to dismiss the suit filed by the PCEA Foundation, declare that the land was theirs and give orders to evict the church, plus costs of the suit.
The PCEA maintained that the acquisition by the government did not indicate thatit was that portion of land being acquired. There was no evidence that Likimani was paid the money, no evidence he received the money said to have been paid through the local chief. There was even no evidence that an inquiry had been held at the Athi River Chief Camp on 16th July 1991 for purposes of the acquisition as purported and that Likimani even participated in the inquiry.
The church called two witnesses, EPZ called its assistant property Manager. PCEA said it conducted all due diligence before purchasing the land and there was nowhere that the government of Kenya or the EPZA appeared in the lands register as owning the property. The Registrar of Lands, Kajiado produced evidence to show that the church was duly registered as the owner of the property. The other lands agencies supported the position taken by the EPZA.
After nine years of hearing, before about three judges, the court delivered its summary judgement on Thursday last week and posted the full (18-page) judgement online this week.
The court held that the acquisition of the land by the government in 1991 was valid and successful. It was justified, gazetted and the land owner properly compensated. The acquisition has never been nullified by any court or tribunal. There was no complaint from Likimani during the acquisition process or after, that he was never compensated. Only him and his successors could complain.
The judge said PCEA could not be the one to raise the complain about the compensation to Likimani since it was not privy to the process.
The held that error made in identifying the land being acquired, had been sufficiently corrected in the letter of 30th September 1991 by Chief Valuer.
The judge said the government had acquired the one hectare of the KAJIADO/KAPUTIEI-NORTH/70 and there was no evidence that the process was nullified by any court order at the time. “ The fact that Mr Likimani was paid compensation means the process was successful.
The judge observed that yes, PCEA was the registered owner of the land as per documents from the Lands Registrar, Kajiado but the registration had been challenged on the following grounds:.
- The land had already been acquired by the government hence it could not have been lawfully registered to the Varsani family who sold it to PCEA.
- It had been proved that EPZA put up a water infrastructure on the land between 1991 and 1994 which was on the land when PCEA “purported” to purchase the land. The sale agreement dated 20th March 2002 indicated the land was vacant, hence the church should have confirmed that was the case, but it failed to do so.
The EPZA owned the land and also enjoyed more overriding interests, than the registration of the land to PCEA.
The judge concluded that the land had been acquired unprocedurally by the Varsani family since it was already acquired and occupied by the government/EPZA. He held that PCEA Kitengela was actually the trespasser to the land.
The judge said PCEA was not an (innocent) purchaser without notice, because at the time they bought the land, there was already the EPZA water infrastructure on it.
The court dismissed the case filed by the PCEA Foundation and granted the EPZA prayers in their counterclaim among others, that:
- The one hectare belongs to EPZA
- The title /13552 was carved out of one acre of the /70
- The church be evicted from the land /13552
- That the PCEA title be canceled and EPZA be issued with appropriate title.
- That PCEA pays costs of the case and interests at court rates.
The court however suspended its decision for 60 days meaning the EPZA can not evict the church for 60 days, pending the filing of appeal.
The appeal will be filed at the Court of Appeal.
- It was the PCEA that moved to court in 2014not the EPZA who claim to own the land since 1991.
- The government or EPZA does not appear in the registration records
- EPZA confirmed that since 2002 it observed as the church put up the development on the land now valued at Ksh650million.
- EPZA said they remained quiet as they were seeking amicable solution on the issue, yet claimed to own the land since 1991.
- EPZA said they remained quiet because the access to the church premises and the school, did not interfere with their “fenced off” water infrastructure.
- There is still no evidence that Likimani was compensated for the said acquisition - the only evidence being that he never complained and the acquisition was gazetted.
- The court should have visited the land to notice that EPZA water infrastructure does not exist and the tank stands on a 20x20 piece.