City Cabanas Hotel and Restaurant in Nairobi. The land on which the hotel stands is claimed by businesswoman Rosaline Macharia and Mr Simon Ondiba.
A businessman has moved to court seeking the recovery of Sh1.93 billion paid to the owner of City Cabanas hotel for a parcel of land compulsorily acquired by the government for the construction of the Nairobi Expressway Road project.
Mr Simion Nyamanya Ondiba says in a case filed before the Environment and Land court that the compensation made to Rosaline Njeri Macharia in 2021 by National Land Commission (NLC) and Kenya National Highways (KeNHA) should be recovered, as the payment was illegal.
According to Mr Ondiba, the 27km road did not pass through Ms Macharia’s land as alleged and that NLC and KeNHA abused their powers by purporting to compulsorily acquire the property for the construction of the Nairobi Expressway.
“Despite the compensation of the sum of Sh1,937,772,429, the Nairobi Expressway Road project did not pass through the subject suit property and the bona fide owner (Mr Ondiba) cannot develop or sell the subject suit property having the tentacles and fangs of the National Land Commission and KeNHA,” Mr Ondiba said.
Mr Ondiba said through his lawyer, Harry Arunda, that the payment was unconstitutional and unlawful, and the money should be recovered and paid back to the national coffers.
“Pending the hearing and determination of the petition herein, the respondents herein jointly and severally file in court a report on the acquisition and compensation of property LR. No 209/11293/1 towards construction of the Nairobi Expressway (A8) road project,” he said.
Logistics questioned
Mr Ondiba also wants to know how the property, through an obsolete LR. No. 209/11293 was used in the gazettment and compensation of Sh1.93 billion to Ms Macharia, yet the Expressway did not pass through the property.
The Nairobi expressway.
The petitioner also wants the NLC and the KeNHA compelled to produce the documents on the compulsory acquisition of the land, the basis for which Ms Macharia was awarded Sh1.93 billion.
Mr Arunda said efforts by Mr Ondiba to resolve the matter through lawful means has been frustrated, as he was being tossed through a tiresome process.
He cited charges brought against him before a Makadara court in 2016, because of the property. The businessman was acquitted in January 2022 only for fresh charges- intent to defraud and uttering false documents over the same property- brought against him.
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He wants the criminal case suspended, pending the determination of his petition.
The businessman said the payments were transmitted to the accounts of Ms Macharia, NLC and KeNHA without due diligence and with deliberate mischief and ‘manifest gargantuan white-collar fraud’.
He has questioned how the independent constitutional commission failed to conduct due diligence into the historical roots to determine the ownership of the property.
“The petitioners will prove in the petition and subsequent hearing that the 2nd and 3rd respondents (NLC and KeNHA) contravened provisions of the constitution and the applicable statutes deliberately without colour of right, paid out Kes1,937,772,479 allegedly for compulsory acquisition of land that never was for the construction of the Nairobi Expressway project,” he said.
Mr Ondiba and his company said he purchased the land for Sh60 million in July 1994 from the Kenya National Chamber of Commerce and Industry (KNCCI).
Evidence tabled by Mr Ondiba stated that after purchasing the property LR. No. 209/11293/1, he subdivided the land to L.R 209/21698 measuring about 2.9640 hectares and LR. 209699 measuring 0.725 hectares and registered in the name of Simandi Investments Ltd.
He said he visited the property in 2016 only to find that Ms Macharia had trespassed and was excavating soil and carrying out various activities.
He then moved to court but the case has never been heard.
The businessman said on September 20, 2020 NLC published a gazette notice on behalf of KeNHA, for the acquisition of land for the construction of the Nairobi Expressway project.
He said Ms Macharia ought to have disclosed to the commission that there was a pending dispute in court on the land.
She was allegedly paid Sh1.64 billion for the land and about Sh300 million for improvements and loss of profits.
Mr Ondiba said that in a letter to the branch manager, Guardian Bank, on April 7, 2021, the NLC despite being aware of the pending case- being a party, the commission transferred Sh25 million to a bank account through an RTGS in favour of loan account of Ms Macharia with respect to the compensation.
“The Nairobi Expressway Road project did not pass through the subject suit property yet payment was payment was made under the compulsory acquisition amounted to contravention of principles of public finance under Article 201 of the constitution,” he said.
He said the gazettement of a non-existent title (No. LR. 209/11293/1) in the name of Ms Macharia, was deliberate violation of chapter 6 of the constitution that has caused the taxpayers money.
In another case pending before the same court, Ms Macharia has defended her title saying she acquired the land from KNCCI in 1994 and the same was registered in her name on April 27, 1995.
She said the original title for the property was held by Guardian Bank Limited and had constructed the hotel- City Cabanas, which she had operated since 1995.
