The court made a declaration that Mr Kipkulei’s right to protection of his property had been violated.
Kipkulei was the registered owner of the parcel of land until June 16, 2007 when a group of people went to the premises and forcefully evicted his agent.
Musk-Deer Limited, an interested party in the suit, had acquired proprietary rights over the property pursuant to court orders issued by a magistrate’s court.
The High Court has declined to suspend its decision that a former permanent secretary's name was illegally removed from a register relating to a parcel of land in Mombasa.
Justice Patrick Otieno ruled that Mr Benjamin Kipkulei, has the right to transfer the property to himself and not to alienate it pending determination of an appeal by Musk-Deer Limited.
Mr Kipkulei served as PS during President Daniel arap Moi's regime.
Musk-Deer Limited, an interested party in the suit, had acquired proprietary rights over the property pursuant to court orders issued by a magistrate’s court.
It wanted the suspension of the of the execution of the judgement pending hearing and determination of its appeal.
The judge said the former PS will enjoy the fruits of the judgment but will not seek to defeat Musk-Deer Ltd right of appeal by transferring the property, charging it or encumbering it in any way pending the outcome of the appeal.
“This however must not be upon free ride, the applicant shall enjoy these rights provided it files the record of appeal within 45 days,” said Justice Otieno in his ruling.
Protection of property
The court has also made a declaration that Mr Kipkulei’s right to protection of his property had been violated and proceedings before a magistrate court’s which granted proprietary rights of the property to Musk Deer Ltd were conducted in breach of the Constitution.
According to suit papers, Mr Kipkulei, who was represented by lawyer Sanjeev Khagram, was the registered owner of the parcel of land until June 16, 2007 when a group of people went to the premises and forcefully evicted his agent.
The group, the court was told, asserted that they were acting for Musk-Deer Ltd who had acquired proprietary rights pursuant to court orders issued by a magistrate.
Mr Kipkulei, who sued the county government as the respondent, argued that there were evident and concerted efforts to deprive him of the property wrongfully, unlawfully in contravention of his constitutional rights.
The petitioner said attempts were made to set aside the proceedings before the magistrate court but it declined.
Violation of law
The county government distanced itself from the proceedings giving rise to the sale of Mr Kipkulei’s property and supported his action that it (sale) was in violation of the law.
It further agreed with Mr Kipkulei that there was never a demand for payment of rates as is mandatory under the law.
Musk Deer Ltd, which was represented by lawyers Michael Oloo and Pheroze Nowrojee, had told the court that it was an innocent purchaser for value without notice as to any impropriety.
The court also ordered the Land Registrar, Mombasa County, to rectify his records in the register to reflect the name of Mr Kipkulei as the proprietor of the property in terms of the original title deed issued to him on February 18, 1991.
