Developers lose ownership claim for Nairobi water reservoir land

Seven people have lost claim of ownership for a parcel of land that hosts a water reservoir and storage facilities for Nairobi Water and Sewerage Company Limited.

The five-acre land, where Kyuna water reservoir is located, hosts a 9,000 cubic metres water storage tank and other reservoirs for water pumped from Sasumwa dam, in Nyandarua County, before being supplied to the Nairobi city residents of Gigiri, Westlands, Loresho, Runda and Upper Kabete Campus of University of Nairobi.

The land also has water infrastructure facilities such as storage tanks, underground pipes, and other auxiliary facilities, which facilitate the supply of water to the said areas.

A judgment issued by the Environment and Lands Court Judge Oguttu Mboya shows that the property had been irregularly allocated to Mitema Holdings, Maywood Limited and Nova Construction in 1995, who later sold the parcel of land to Shital Bhandari.

The other owners of the plots on the contested area were Fatma Abdallah, Hannah Wanjiku, Ali Mwanzi, Julia Ojiambo, Samuel Gathogo and Fredrick Kimani.

The owners were allocated the property by former Commissioner of Lands Wilson Gachanja, who contended that the suit properties were duly and lawfully allocated to the various allottees in the exercise of his powers under the Government Land Act.

Justice Mboya ruled that the land registered as LR No. Nairobi Block 90/229 was a public property reserved as a water reservoir and related water distribution installations, which are public utilities.

He issued a permanent injunction to the private owners and ordered eviction within 60 days and demolition of the structures.

The judge declared that the owners had no good title/interest over their respective plots and were a nullity.

"Failure to grant an order of permanent injunction would jeopardise the rights of the residents of the said areas. Suffice to state that the right to water is tantamount to right to life. No wonder it has been said that water is Life," said the judge.

The recovery suit was filed by the Ethics and Anti-Corruption Commission in 2021, claiming that the land was a grabbed public property,

The judge said the suit property having been surrendered to the city Council of Nairobi [now defunct] for public purpose, namely the water reservoir, same was not available for allocation or alienation and that resultant sub-divisions were null and void.

The commission called 10 witnesses, who informed the court there was a 9,000 cubic metres water storage tank on the land.
Besides, the witnesses stated that the suit property also has staff residential houses, a pumping station, and underground water pipes as well as underground and elevated tanks.

"It follows as a matter of course that any certificate of title that arose from the contested letter of allotment was/is equally invalid. Simply put, the declaratory orders pertaining to the invalidity of the certificates of titles arising from the suit property are merited," said Justice Mboya.

The judge dismissed a counterclaim by Mr Shital Bhandari seeking compensation for a sum of Sh150 million and special damages of Sh14.5 comprising various payments.

"There is no gainsaying that the compensation sought relates to L.R No. Nairobi Block 90/599, which the court has since found to have been illegally acquired. The question that does arise is whether the Government of Kenya can be compelled to compensate the defendant on the basis of an illegality. The answer is certainly in the negative," said Justice Mboya.

Mr Bhandari had also sought an order of permanent injunction to restrain EACC, the Inspector-General of Police, the National Land Commission, and the Nairobi Water Sewerage Company from interfering with his quiet possession and use of the property.

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