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Firm and Lang’ata High school tussle over Sh200m land

A private developer is embroiled in a legal tussle with the Lang’ata High School administration over the ownership of a Sh200 million parcel of land which neighbours the school.

Emanga Sameta Investments is accusing the school board of governors, led by chair Oscar Beauttah, of blocking the company from developing the four-acre plot after a court reinstated the firm’s title revoked by the former Lands Minister James Orengo.

Sameta, through its director Harun Nyamboki, said the school has no legal grounds to deny it access to carry out developments on the property it rightfully acquired.

Justice Mumbi Ngugi ruled that the revocation of the investor’s title by way of a Gazette notice on May 21, 2010 was not only unconstitutional but also in breach of the petitioner’s right to property.

Alleging contravention of fundamental rights and freedoms, Sameta sued the Attorney-General, Lands Minister, Commissioner of Lands, District Land Registrar and the Lang’ata High School BoG for dispossessing it of ownership of the prime land, Nairobi/Block72/3174.

Unlawfully acquired

But chief land administration officer Joseph Kiragu, through a sworn affidavit, defended the government’s institutions against the alleged violation, saying the land is a public utility that had been unlawfully acquired.

The AG, through state counsel Daniel Wamotsa, challenged Sameta’s title, saying the disputed property was originally Nairobi/Block72/2881, alienated on January 17, 1975, and reserved by the government for public use.

Mr Beauttah, in a sworn statement, said the school had applied for the allocation of the land and the same was allotted to them through the Treasury PS as trustee for the school.

Court documents indicate that Sameta bought the land on February 20, 2009 from previous owners David Barno, Samuel Kimotho and Winfred Nyawira for Sh68 million.

On April 30, 2009, the developer charged the property to Equity Bank for a loan of Sh45 million. 

“After carrying out a thorough search at the lands office, we confirmed the vendors were the registered owners of the property,” Mr Nyamboki testified.

He stated that after the sale transaction, the company applied to the National Environment Management Authority (Nema) for approval to put up residential apartments. Subsequent approvals were also obtained from the city county government.

However, by a Gazette notice on May 21, 2010, the district lands registrar purported to revoke Sameta’s title to the property. 

The company argued that there was no basis for the cancellation of the title since it had paid Sh2.7 million as stamp duty, and the Lands Commissioner had received Sh90,000 in fees after the property was charged.

The developer contended that the revocation of the title was done without him being accorded an opportunity to be heard, given that the land was administered by the Registered Land Act which protects the rights of registered land owners.

Through lawyer Stephen Oyugi, Sameta asserted that under Article 39 of the Act, it was not required to go beyond the register at the lands office to inquire how the previous owner obtained the land.

“Any challenge to the title has to be done under section 143(1), which gives the court powers to rectify the register. The minister or land registrar has no mandate to cancel a title,” submitted Mr Oyugi, an assertion with which Lady Justice Ngugi concurred.

Ignored court orders

On June 28, 2010, Justice Mbogholi Msagha issued orders restraining the Lands Commissioner from interfering with the property pending determination but, despite the injunction, the land official went on to issue the title to Lang’ata High School on October 12 of the same year.

While issuing the restraining orders, the judge noted that Sameta was likely to suffer irreparable loss as it had charged the property and obtained Sh45 million with a view to developing the land, and continued to service the loan on a monthly basis.   

Justice Msagha, who handled a separate case between Sameta and the school at the Environmental and Land Division, absolved the developer of any fraud in the acquisition of the property, noting that there were no allegations that Sameta was aware of any encumbrances against the title.

“That being the case, Sameta may rightly be described as a bona fide purchaser for value without notice,” said the judge.

He also said Sameta Investments was not given any notice of the intended revocation of the title, thereby denying it its right to be heard.