At least 296 families in Nairobiâ€™s upmarket Runda Estate will be rendered homeless after the High Court ordered partial demolition of the gated community to create room for the construction of the 21-kilometre Northern Bypass corridor.
Lady Justice Mumbi Ngugi threw out twin petitions by Runda Mimosa Estate and Cycad Properties Ltd seeking to stop the government from reclaiming 20 metres consumed by the housing estate from the original 80 metres earmarked for the road expansion.
The long-running dispute between Runda residents, Lands and Roads ministries, Kenya National Highways Authority, Kenya Urban Roads Authority and the Attorney-General involved the width of the road reserve adjacent to the palatial houses.
While the residents argued that the roadâ€™s width is 60 metres according to records in the Lands ministry, the government insisted it was 80 metres as delineated on November 20, 1970.
The land, originally owned by Edith Cockburn, covered 6.4 acres when the parent parcels were compulsorily acquired by the government.
The AG, through Mr Charles Mutinda, said that after the compulsory acquisition, the land owners were compensated in respect of their portions and the titles reverted to the government. Others who originally owned the land were Estav Ltd (16 acres) and Runda Coffee Estate Ltd (27.9 acres).
The petitioners had urged the court to declare that their rights, individually or in association with others to acquire and own property, were being violated as guaranteed by Article 40 of the Constitution.
However, the judge said she was satisfied with submissions by KeNHAâ€™s lawyer, Mr Anthony Mulekyo, that the residents knew of the public nature of the land through Gazette notices that warned the public against encroaching on road reserves and bypasses.
â€œIn the two petitions before me, I donâ€™t see any violation or limitation of the residentsâ€™ right to property. In my view, the residents are unwitting victims of landowners who sold the properties to them without having regard to the public interest,â€ ruled Justice Ngugi.
She also turned down a plea by the residents that Sh2 billion had been invested in constructing the houses, observing that the right to property can only be exercised within and in accordance with legal framework as public lands had overriding interests under Registered Land Act.
â€œWhile I appreciate the large investments that have gone into the construction of the residential houses and sympathise with the situation of the owners, I believe their recourse in legal claim is against those who sold land to them,â€ said the judge.
The judge ordered the Runda residents to surrender to the government the 20 metres out of their respective parcels within 90 days from April 25 and directed the Lands office to rectify the titles accordingly. Mr Mulekyo told the court that the petitioners â€“ Cycad and the 296 residents â€“ were fully aware of the encroachment and â€œwhat they are now seeking from the court is to be allowed to clean up their tainted titlesâ€.
â€œThe petitioners cannot clothe their encroachment on public land with legality through a declaration of rights that they are not entitled to,â€ submitted Mr Mulekyo, who urged the court to block the residents from any attempt to gain collateral advantage.
The Northern Bypass is a 25-kilometre road linking Thika Road to Waiyaki Way which is part of the Nairobi-Nakuru highway. It runs through Kahawa West, Githurai and upmarket Thome, Windsor, Runda and Kitisuru estates.
Drawings dating back to 1970 show the road was designed to use 80 metres and not 60 metres as argued by lawyers Mohammed Nyaoga and Geoffrey Imende for the 296 affected families. Mr Nyaoga said demolishing the houses would infringe on the residentsâ€™ right to private property.
However, the Kenya Urban Roads Authority, through its lawyer Geoffrey Ondongo and the Attorney-General, who are named as respondents, said the government had spent Sh8 billion in constructing the 25-km Northern Bypass.