Plans by former ruling party Kenya African National Union (KANU) to reclaim the Kenyatta International Conference Center (KICC) have been dealt a blow after a judge ruled that it illegally obtained title to the land where the building is located.
Justice Jacqueline Mugenyi also ruled that the land was not available for alienation and therefore the process that led to the plot of land being allocated to Kano was illegal from the beginning. The judge said the land was not immovable government land and was therefore inalienable.
An Environment and Lands Court judge annulled the title deed issued to the Independence Party on May 25, 1989, saying that the allotment letter given to Kano by the Lands Commissioner on May 10, 1969, was non-procedural.
“The allotment of the land to the petitioner (Kano) was illegal, unlawful and unconstitutional from the beginning,” the judge said, adding that the title deed subsequently issued to the Ministry of Tourism was valid.
The judge wondered why the former ruling party and its officials failed to follow due process in transferring ownership of the land and allocating it to Kano.
“Who allocated the land to the petitioner? Was it the President or the Land Commissioner? Was it done with the oft-quoted attitude of mta do?! (What will you do?!) or was it a lack of understanding of the law? The judge asked.
According to the judge, the process followed in allocating the land would have been correct if the land had been allocated for religious, educational or sporting purposes but not for a political party.
Justice Mugyenyi further said that Kanu did not submit Partial Development Plans (PDP), which indicate the exact location for the immediate implementation of a specific project, to support his case.
Justice Mugyenyi upheld a new title deed – registration number 209/19829 dated 1 June 2010, to the PS Treasury as Secretary of the Ministry of Tourism, saying it was valid.
Kanu wanted the court to declare that she was the beneficial owner of the land LR No. 209/11157, after the land was allotted and she received title after 20 years, for a period of 99 years.
The title deed bore the names of former President Daniel arap Moi and former Minister Olu Aringo, as guardians of Kano, and the land was allocated to the party by former Lands Commissioner Wilson Gachanga.
The party said it had the right to own and dispose of the property, but its rights had been unlawfully and illegally curtailed through an executive order issued on February 11, 2003, reclaiming the property.
Through the order, the government evicted Kanu, its agents and tenants from the building and took over KICC, even though it was never notified of the order.
The former ruling party argued that its title deed, which had not been withdrawn or cancelled, and therefore the takeover was a violation of its rights and illegal.
The party said that despite taking over KICC, the government had failed to settle electricity bills, a move that left its Nakuru branch office with a debt that had risen to Sh738 million to Kenya Power.
Judge Mugyenyi said Kanu should bear the burden of paying the bill because he illegally occupied the 28-storey building.
The government disputed the case arguing that the space had been set aside for public purposes and the building had been constructed at a cost of £3.9 million using public funds.
The court was also informed that state prisoners were deployed to provide labor for the construction of the building to save cost.
She told the court that KANU, as a government agency, could not direct prisoners to work on the project.
Timothy Waya Mwangi, deputy director of physical planning at the Ministry of Lands, said the land could not have been allocated to Kano because the land had been zoned for public space as early as 1948.
The official added that public spaces are an essential element of individual and social well-being, places of collective life for a community, an expression of the diversity of their shared natural and cultural wealth and a basis for their identity.
“In keeping with the well-established philosophy of planning and siting of public squares, the functions carried out in all the above buildings are public and accessible to all. The use of land in and around the square has been and continues to be characterized by public purpose use,” Mr Mwangi said.
He said that in terms of physical and land use planning principles, practices and standards, Kano cannot and cannot be accommodated within Nairobi City Square because it would be non-conforming.
He explained that inside the square there are the buildings of the Supreme Court (now the Supreme Court), Gogo House A, the Public Works Building (Harambee House) and the Attorney General’s chambers.
He said that outside the square there are the parliament buildings, the Holy Family Church, the city hall and the police headquarters.
Today, Mr. Mwangi said that the buildings of the Supreme Court, Harambe House, Sheria House, ICC headquarters, COMESA grounds, Gogo Houses A and B, the commission headquarters and the Ministry of Foreign Affairs are located within what is referred to as Government Square.
Outside the square are the Parliament Buildings, Holy Family Church, City Hall, Kenya Rey Plaza, National Treasury and Police Headquarters.
Mr Mwangi said the city square is a public space held by the government in trust for the people of Kenya because it is located in Nairobi's central business district.