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Two seek to repossess KPA land after expiry of lease

 

The Kenya Ports Authority (KPA) risks losing property worth millions of shillings if a petition seeking to evict it from a parcel of land is successful.

Suleiman Mohamed and Soud Salim argue that a 99-year lease allowing KPA to occupy the land in Kizingo, Mombasa, has expired with no option to renew it.

The two claim to be trustees for the late Mohamed Said Suleiman, who was the first trustee for the late Sheikh Binti Ali, the registered owner of plot number Mombasa/Block/XXVI/17.

Court records show that KPA’s predecessor, East African Standard Ltd, entered into a private lease or indenture agreement with the late Ali in 1920 for a term of 99 years.

Under the terms of the lease and or indenture agreement, East African Standard Ltd was supposed to remove all buildings or improvements made thereon provided the surface of the plot is restored.

The agreement also provided that any damage was to be repaired at the expense of the company.

“The lease and or indenture expired on or about September 30, 2019 by effluxion of time,” the petitioners say.

The petitioners, on September 16, 2019, informed KPA of the expiry of the lease and that they did not intend to renew it.

KPA requested copies of documents related to the lease so that they could investigate the matter and compare the information with their records.

In the same year, the petitioners wrote to KPA requesting vacant possession for the land but the agency declined to vacate the property.
KPA then threatened to file an adverse possession claim against the petitioners’ rights to the property.

“KPA wrote to us, stating that its committee on land use and development had sat and proposed that it (KPA) be compensated for the building they had constructed in the suit property.”

They argued that KPA is demanding compensation though there is an express clause in the agreement on how it is supposed to surrender the property to them.

“All our efforts to have KPA surrender vacant possession of the suit property peacefully and amicably have been futile rendering the suit and the application herein necessary.”

They claim that KPA’s actions have denied them their rights to use and draw benefits from the property, causing them loss and damages.

The petitioners want the court to certify their case as urgent and compel KPA to surrender the property.

In response, KPA argues that the case cannot be decided before third parties who are likely to be affected by an eviction order are enjoined in the matter.

“Although the prayer for mandatory injunctive orders sought is made against KPA solely, the effect of the same should it be granted will be to dislodge the occupation by third parties (families and their children) of the dwelling houses in the suit property,” KPA argues.

Environment and Land Court Judge Nelly Matheka agreed with KPA that the mandatory injunction sought by the petitioners is a substantive and final order that cannot be granted at this stage.

“This court will have to listen to all the parties in order to give its final orders,” the judge said.

Justice Matheka ruled that the application was unmerited and dismissed it, directing that the matter be listed for hearing before a final determination is made.        BY DAILY NATION   

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