The Supreme Court upheld an appeal court ruling that a five-star hotel was built on wooded land on the coast.
The highest court in its ruling, which ended a 27-year-old legal battle between Pati Limited, Funzi Island, Kwale County, and Land, stated that the land Pati built a luxury hotel on is woodland reserved for boat docking .
The Italian tycoon Alessandro Torriani owns Pati. Court documents estimated the hotel to be worth $ 240 million in 2005.
Vice-presiding judge Philomena Mwilu and judges Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaack Lenaola upheld an appeal court ruling that the disputed land was illegally assigned to Pati.
In court, the tycoon argued that the land was private and had set Sh400,000 as compensation should there be any claims.
He claimed that the land was legitimately transferred to Pati as there was no objection from a local resident and the area’s land control authority agreed.
âThe entire process and the notice period fell far short of the requirements of the constitution and the law. In view of these shortcomings and our conclusion on the legal status of the property in suit, we see no reason to contest the judgment of the court of appeal, âthe court ruled.
âThe complaint land has been demarcated for use as a boat mooring (a purpose that would have benefited the local communities usually located in the area), but the complainant (Pati) has built a five-star hotel on it. There is no further notice on record of a change in the purpose of the decommissioning. ”
On her appeal, Pati sued Funzi Island Development Limited, retired High Court Judge Jonathan Havelock, ME Havelock, the Kwale County Council and the Commissioner of Lands. Judge Havelock is believed to be the director of Funzi Island Development Limited, according to court records.
According to the document, Funzi Island Development Limited owns land on the main island of Funzi and has also developed a luxury tourist tented camp on their property. She complained that Torriani had erected illegal makeshift buildings in front of her property on the land peninsula, which denied her and the local population access to the open sea.
The strip of land in question is on the coast of the Indian Ocean at Msambweni on the west side of the island of Funzi. Sometime in 1992, former District Representative KB Mwanzandi allegedly requested the Kwale County Council to open 1.7 acres of land for boats to land. The court records indicate that a letterhead allegedly belonging to him showed that he was the deputy minister for public works and housing.
On June 9, 1994, the Msambweni Division Land Control Committee gave its approval and five days later the Land Commissioner announced the land. According to court records, on July 12, 1994, Mwanzandi asked the commissioner to assign the same to Pati.
The Commissioner allocated 7.5 hectares to the company for a term of 99 years from August 1, 1994.
However, it turned out that it was the council that issued the lease, and special condition number five stated that the land should only be used for boat docks and offices.