Businessman Prasul Jayantilal Shah set to lose Sh1.2bn Mavoko land
Businessman Prasul Jayantilal Shah has failed in his bid to escalate a Sh1.2 billion industrial land dispute to the Supreme Court after judges held that the case does not involve interpretation and application of the constitution, setting the stage for his possible eviction from the property.
Mr Shah wanted the apex court to suspend the execution of a Court of Appeal judgment that affirmed the High Court’s finding that his title to the land was fake.
The title to the land, which is situated in Mavoko Township, Machakos County, was registered in the name of his company, Megvel Cartons Limited. He lost the land ownership to Diesel Care Limited, whose title was found to be genuine.
Pleading with the Supreme Court to stop the execution of the appellate court's judgment dated February 17, 2023, Mr Shah contended that his company has been in occupation of the suit property where it has been operating a factory for the past 12 years.
He added that his company has made significant investments to the tune of Sh1.2 billion and presently employs over 700 Kenyans.
The court heard that should the company be evicted from the suit property, it stands to suffer irreparable loss as well as the loss of livelihood for its employees. He added that there was real and imminent danger of Diesel Care Limited “dispossessing” his company of the suit property.
The Supreme Court heard that Mr Shah's company was facing two significant immediate threats: forceful eviction from the suit property and criminal charges proffered against him for the offences of forgery of land ownership documents and forcible detaining of the land.
The Court of Appeal affirmed the High Court’s decision to issue a permanent injunction restraining Mr Shah’s company and its agents or servants from remaining upon, selling, allocating or denying Diesel Care access to the land.
Diesel Care has already applied in court for forceful eviction of Mr Shah's company from the suit property.
Constitution application
Dismissing the request to suspend execution of the judgment, the Supreme Court judges said the case before the High Court and the Appellate Court did not involve the interpretation and application of the constitution.
“The gravamen (essence) of the case before those courts was the validity of the two titles held by Megvel Cartons Limited and Diesel Care Limited. The question to be answered was which one of the two was the genuine legitimate title,” said the Supreme Court bench led by Deputy Chief Justice Philomena Mwilu.
Other judges on the bench were Mohammed Ibrahim, Njoki Ndung'u, Isaac Lenaola, and William Ouko.
Among the issues Mr Shah’s company proposed to be determined by the apex court in the petition, was whether a surrender for purposes of a change of user transmutes private land into public land under Article 62(c) of the constitution, making it available for allocation by the government to third parties.
But the Supreme Court said that even though the company alluded to infringement of constitutional rights, “no such claim was made before both superior courts below”.
“The issue of the validity of the titles, which involved a factual examination of the origin of the two titles, cannot mutate at this stage into a constitutional question, without the benefit of arguments by the parties and determination before the courts below,” said the judges.
The legal dispute started in 2011, with Megvel Cartons claiming that it purchased the land from Jewel Holdings Limited for Sh110 million. Jewel had purchased the property from Joseph Odero, who said he had purchased the land from Margaret Wamaitha Humphrey in 1985.
For its part, Diesel Care said it purchased the property from Mwikali Mulei in 2001 for Sh6 million.
Diesel Care informed the court that it reported the issue of invasion of the land to the Director of Criminal Investigations who confirmed that Megvel’s documents were forgeries. BY DAILY NATION
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