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AG opposes Muturi’s bid to block Mombasa Cement suit in land row




Attorney General Paul Kihara. FILE PHOTO | NMG 

Attorney-General Paul Kihara Kariuki has opposed National Assembly Speaker Justin Muturi’s application to strike out a cement manufacturer’s petition seeking to block a House report on land.

The AG argues that it is necessary to for the court to determine ownership of the parcel of land and constitutional issues in the suit since a dismissal of the petition may not lead to justice.

Mombasa Cement Ltd went to court seeking to save part of its 672 hectares of land valued at over Sh680 million, following a directive by a Cabinet Secretary for Lands, to vacate it.

In opposing the Speaker’s application, the AG argued the court should have the petition by the cement manufacturer heard substantively so that the ownership, use and occupation of the land can be determined.

“The dismissal of the suit shall not lead to substantive determination of the subject property and the dispute may re-occur,” the AG said in his grounds of opposition.

According to the AG, issues of land ownership are emotive and the court should facilitate a full and expeditious hearing avoiding technicalities.

Through litigation counsel Nguyo Wachira, the AG said if stay orders (suspension) are not in place, the purpose of arguing the case will be rendered nugatory.

“There is need for us to conserve (the land) for us to argue,” said Mr Wachira, adding that a dismissal of the motion will not settle the issue substantially.

Mombasa Cement Ltd, through lawyer Cyprian Onyony, also opposed the application by the Speaker, saying proceedings before the court will be rendered an academic exercise if it (application by the Speaker) is allowed.

Through lawyer Mbarak Awadh, the Speaker argued that Mombasa Cement Ltd had filed a similar suit at the Environment and Land Court in Nairobi which was later transferred to the High Court seeking same orders.

According to the Speaker, the petition in Nairobi was dismissed after the court established that the cement manufacturer had filed the case without having paid the requisite court fees.

“These proceedings have been instituted in blatant attempt to steal a match on the respondents by not disclosing the existence of the first petition,” said Mr Muturi in his application.

Mr Muturi also argues that the cement manufacturer failed to disclose that the parcel of land is located in Kilifi County outside the jurisdiction of the court and not Mombasa where the suit has been filed.

Mombasa Cement Ltd claims that on July 28 last year, the CS Ministry of Lands wrote to its managing director directing him to immediately leave the land located in Kilifi county and hand over the titles.

The company says the decision of the CS followed an investigation by the National Assembly departmental Committee on Lands, whose report concluded that the ministry takes over the land to be administered by the National Land Commission.

Mombasa Cement has sued the ministry, Speaker of the National Assembly, the National Land Commission and the Attorney General.

It has named Vipingo Estate Limited, from whom it purchased the land, as an interested party in the suit.

The company argues the parliamentary committee commenced parallel investigations over the propriety of the titles held by the company.

It argues that the parcels of land have been subject of an earlier investigation by NLC which certified their acquisition and possession as lawful.

“The purported investigation over the same titles by the committee is a collateral attack on the powers of NLC as established by the constitution,” the suit documents state.

Intimidation and harassment

The company argues that the investigations constitutes nothing but intimidation and harassment using government agencies to humiliate and degrade it.

According to the cement manufacturer, the CS threatened that failure to comply with the directive, the ministry will without notice move to mark out the parcel of land and take possession.

The company argues that the parliamentary report dated November 24, 2015 is unconstitutional and illegal and that any action taken on the reports is equally flawed.

It also argues that the CS directive is illegal and unlawful and that she has no powers under the constitution to repossess land or cancel any title deed.
The company says that immense investments expended by the company in exercise of its rights of ownership have been negatively impacted and are at risk, owing to the failure by the CS and the respondents to adhere to the law.

“Foreign investor confidence will be eroded owing to the unconstitutional and cavalier manner in which the CS and the respondents have sought to interfere with the lawful activities of the petitioner,” the company further states.

The court is expected to deliver its ruling on March 28.