The National Bank of Kenya (NBK) has got a reprieve after a court dismissed a petition requiring it to pay Sh2.8 billion compensation to a ranching company over land in Kwale County.
Justice Addraya Dena dismissed the petition filed by the Taireni Association of Mijikenda against the bank, Mwambeja Ranching Co Ltd, Shimbaland Ranching Co Ltd, the Kwale county government, and Lands Cabinet Secretary Farida Karoney.
The court heard that Shimbaland had bought the land in the Kinango area at an NBK auction after Mwambeja Ranching defaulted on a Sh30 million loan.
Shimbaland filed a cross-petition that should its title be nullified based on the petition by the association, then the NBK, from which it bought the land, would compensate it based on the current market value of the land.
Justice Dena of the Environment and Land Court in Kwale ruled that no orders would be issued on the cross-petition by Shimbaland given the order upholding its title on the land, thus giving the bank the reprieve.
NBK had opposed the cross-petition by Shimbaland, saying a private commercial contract cannot be enforced in a constitutional petition.
Through lawyers Paul Munyao and Henry Kariuki, the bank said Shimbaland’s claim was time-barred, an agreement having been entered into in December 2012.
Shimbaland had, in the alternative of having the bank pay it the money, wanted the court to declare that the Lands CS and the Chief Land Registrar were bound to indemnify it in respect of all the losses should its title to the land be nullified.
In its petition, Taireni Association of Mijikenda had sought orders, among them, to have the land title held by Shimbaland quashed and to compel the chief land registrar to register the parcel as community land.
Justice Dena ruled that the association had failed to prove that before registration of the land to Mwambeja Ranching, which took the loan and defaulted on payment, belonged to the local community.
“The fact that the community claims this to be their ancestral land does not make it trust land; on the contrary, evidence has been placed before this court on how the land was allocated to Mwambeja Ranching as a grant from unalienated government land,” said the judge.
Justice Dena issued a declaration that the grant to Mwambeja was issued regularly and upheld the title belonging to Shimbaland.
He further said the property was unalienated government land and the allocation to Mwambeja Ranching Company Ltd was procedural and as per the then provisions of the law.
She also ruled that Shimbaland is protected under the Land Registration Act and its title can only be impeached based on fraud.
“There are no allegations of fraud that have been specifically pleaded and particularized as against Shimbaland Ranching Company Ltd to the required standard which is also higher than that of a balance of probabilities,” ruled Justice Dena.
The court also noted that other than proven ownership, Shimbaland also demonstrated several developments made on the land after acquisition.
Justice Dena ruled that no contravention of the petitioner’s rights had been proved to warrant the orders they were seeking.
“The petitioners have failed to discharge the burden of proof to the required standards,” said Justice Dena.
Justice Dena also ruled that two portions of land in Shimbaland’s letter be excised from the land and surrendered to the county government of Kwale and administered as recommended by the National Land Commission in a report. BY DAILY NATION