|Miscellaneous Civil Application 66 of 2010
|MAISHA NISHIKE LTD v COMMISSIONER OF LANDS, MINISTER FOR LANDS, PERMANENT SECRETARY, MINISTRY OF LANDS & PERMANENT SECRETARY, MINISTRY OF ROADS AND PUBLIC WORKS Ex-parte MAISHA NISHIKE LIMITED
|11 Apr 2011
|High Court at Nairobi (Milimani Law Courts)
|Daniel Kiio Musinga
|MAISHA NISHIKE LTD v COMMISSIONER OF LANDS & 3 others Ex-parte MAISHA NISHIKE LIMITED  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
MISCELLANEOUS CIVIL APPLICATION NO. JR ELC 66 OF 2010
IN THE MATTER OF THE LAW REFORM ACT, ORDER LIII OF THE CIVIL PROCEDURE RULES AND THE
LAND ACQUISITION ACT, CAP 295 OF THE LAWS OF KENYA
“This honourable court be pleased to vary, alter and/or vacate the stay orders issued on 30th July, 2010 and extended on 24th January, 2011 to enable the government take possession and proceed with the construction of the Nairobi Northern By-pass Road through the ex parte applicant’s land parcel LR. No.5989/3”.
Engineer Kamau further stated that the order of stay has stopped completion of the said road. The contract for the construction of the road was awarded to China Road and Bridge Corporation for a compound sum of Kshs.8,549,813,307.76 and the contract period set as 36 months from 17th April, 2009. The construction of the road is almost complete save for the portion that passes through the suit property.
It was further stated that the government through the Commissioner of Lands has prepared an award and offered to pay compensation to the ex parte applicant in the sum of Kshs.82,800,000/=. However, the applicant wants compensation in the sum of Kshs.126,000,000/=. The claim for the amount payable can only be entertained by the Land Acquisition Compensation Tribunal established under Section 29 (2) of the Land Acquisition Act Cap 295, the deponent stated.
Evans Mwaura Githua, a director of the ex parte applicant, swore a replying affidavit in opposition to the said application. He stated that the respondent had violated the orders of stay that had been granted by this court and consequently, the court cannot aid a party who is in contempt of its orders. He further stated that the ex parte applicant’s application for contempt of court ought to be heard first before the respondents’ application is considered.
In the event that the court is inclined to grant the orders sought, the respondents ought to be ordered to deposit a sum of Kshs.126,000,000/= in court, Mr. Githua added.
Regarding the alleged loss of Kshs.2,000,000/= per day, the ex parte applicant stated that there was no documentary evidence in support of that averment.
It cannot however, be denied that the real issue in dispute is the amount of compensation that is payable to the ex parte applicant. The Commissioner of Lands has assessed the sum payable to be Kshs.82,800,000/= whereas the ex parte applicant wants compensation in the sum of Kshs.126,000,000/=. It is that dispute that has stalled the said project. Under Article 40 of the Constitution of Kenya, 2010, the ex parte applicant cannot be deprived of its property unless the deprivation results from an acquisition of the land in accordance with Chapter 5 of the Constitution or where the land is required for a public purpose or in the public interest and the acquisition is done in accordance with the provisions of the Constitution. In such instances, appropriate compensation has to be paid to the ex parte applicant.
The project that has stalled is of great public benefit. There can be no denial that the government is likely to pay considerable amount of liquidated damages due to delay in finalization of the project. The ex parte applicant does not stand to gain at all by such delay.
In view of the great public interest in completion of the Nairobi Northern By-pass Road and in view of the fact that the delay has occasioned or is likely to occasion unnecessary financial loss to the respondents, I hereby vacate the orders of stay issued on 30th July, 2010 and extended on 24th January, 2011 so as to enable the respondents proceed with the construction of the said road. The costs of this application shall be in the cause.