Attorney-General Paul Kihara has justified the revocation of a title to land allocated to a company that owns a beach resort and golf course in South Coast.
Through litigation counsel Nguyo Wachira, the AG said the revocation was justifiable due to the failure by Leisure Lodges Ltd to comply with the given terms and conditions.
Mr Wachira, who was submitting before a three-judge bench comprising Justices Eric Ogola, Mugure Thande and Dora Chepkwony, also said there is no basis for award of damages made before them.
In his cross petition, the AG accused Leisure Lodges Ltd of deliberately misleading the government to allocate it land.
The AG argued that Leisure Lodges Limited disposed off government land illegally that was meant for settlement of squatters.
At the centre of the dispute is more than 76 hectares (187 acres) in parcels of land worth millions of shillings in Diani, South Coast.
However, Leisure Lodges Ltd says it is the registered owner of ten parcels of land and is entitled to its absolute possession.
It has sued individuals, companies, business entities and the government totalling over 700 respondents who have interest in the 10 parcels of land.
The AG wants, among others, an order of permanent injunction restraining Leisure Lodges Ltd from selling, transferring or entering into any deal with the parcels of land.
He further accuses Leisure Lodge of failing to surrender the parcels of land within Kwale/Diani complex.
According to the AG, Diani Complex Scheme was government land which it wanted to develop a tourist centre in 1979, but shelved the plan upon realising that the project was becoming expensive to implement and some parcels of the land were allocated to the public.
“Leisure Lodge was one of the beneficiaries whereby they had requested for some part, which was to be used for the golf course development leading to the amalgamation and subdivision of the land,” the AG argues.
The AG argues that by a letter dated September 1988, Leisure Lodge wrote to the District Development Committee (DDC) with a proposal to exchange the portion of land being cleared for staging an agricultural show with an alternative land, saying show activities would interfere with hotel business.
He further argues that the DDC agreed to exchange the parcel of land with another offered by a sister company to Leisure Lodge and that around 1991, the hotel applied for the remaining parcel.
The AG now wants the court to dismiss a petition filed by Leisure Lodges Ltd eight years ago and a declaration that it (Leisure Lodge Ltd) does not own the land.
Through lawyer Njoroge Mwangi, the County Government of Kwale, which is among the respondents, argued there is admission that 60 per cent of the land is occupied by third parties.
Mr Mwangi argued that Leisure Lodges Ltd has not been able to demonstrate to court that it is seized of the land to the exclusion of other respondents.
He also argues that it would be important for the court to visit the area where the land is located to get a ‘feeling’ of the issues.
Leisure Lodges Ltd wants a declaration that the subdivisions and “re-parcellation” of its land and allocation of plots created over and within its parcels of land to third parties is contrary to the law.
It says the move is in breach of its right and amounts to acquisition of its land without compensation.
The company argues that the state cannot acquire property to distribute it among its kin or political support for personal gain.
It also argues that unplanned development on its land has reduced the value of its commercially viable properties including those on the beach that were next or adjacent to its parcels of land.