In recent days some Judges have been on the spot over their conflicting decisions and giving rise to claims of conflict of interests in the real estate sector. Most of them have been issuing court orders against petitions challenging illegal developments, demolitions and on other matters which seem at odd.
For instance, a Judge at the Environment and Labour Relation Court this week contradicted himself and gave a wrong ruling on a wrong matter in relations to illegal demolitions and constructions Woodley Estate.
The Judge in his ruling struck off a petition filled by the Woodley residents that had sued to stop Nairobi County Government from demolishing and evicting them contrary to the law.
In his ruling, Justice MD Mwangi in a virtual court session ruled that the petitioners in the case before him were the respondents in a decided case and were therefore “re-litigating case” terming it res judicata. But the Petitioner were not respondents in that case and have not appealed that decision which was the bases of him dismissing the petition and allowing demolition of Woodley Estate to proceed on.
The residents are also dissatisfied by ruling in which the judge ruled public participation has been conducted as the tendering process by city hall was advertised. The residents say that is not the criteria set out by Supreme Court for public participation
They also contend that the judge relied solely on the affidavits of respondents and developer and was thoroughly critical of theirs and even used “unjudicial language” to describe their petition.
By relying on affidavit and submissions of the Respondent and developer which introduced a different ruling with a different parties which they both told the court the petitioner was the Respondent in that case and he believed them and gave a disturbing ruling. The ruling seems to have caused confusion and anxiety even as Governor Sajaka men continue to celebrate.
Further more as per the documents in our possesion, the Judgement failed to address the petition filed in court but relied on the Respondent’s theory.
” This court finds that the petitioners intention in filling this petition is to re- litigate an issue that has already been decided by a court of competent Jurisdiction ; by giving cosmetic facelift renaming it a constitution petition,” the Judge said while referring to ELC No 2054 of 2007 which the a court in 2015 had ruled it would not have binding effect on the other suits stayed pursuant to the order it granted in it.
Ironically, that case was between Kenya Anti-Corruption Commission and Mr.Paul Moses Ngetha whom we have confirmed that was not part of the petition filed by the woodley Residents. The case before Justice MD Mwangi was between Woodley Residents Welfare Association, Petitioner Wanja Kimani, Peter Ngatia, John Mugwe, and Samson Mugacha Mwangi against Nairobi County Government, The attorney General and the Ministry of Housing and Urban Planning.
Residents had Raised serious issues that the Judge failed to address but instead proceeded to strike out their suit without listening to them & even ordered them to pay costs, yet the error was on the court.
For instance, the Woodley Residents who are the Petitioners told the high court that the County government is attempting to grab the properties and give it for free to a developer, which houses they had been offered to buy by the defunct City council of Nairobi and were asking to now be allowed to buy by NCCG having lived in the houses for over 70 years. The Judge failed to address their right of equity and upheld land grabbing instead in his ruling in which he also used a harsh tone.
They also told the court that the projects set to be launched in a month’s time will lead to bringing down homes housing 3000 residents together with their investments inside the estate.
They say this is an attempt by powerful people to evict the residents and allocate the houses and land to themselves and their cronies claiming that there is no environmental impact assessment that has been done and presented to them.
They wanted the court to stop the county government through its agents from doing any act interfering with the peaceful, actual and exclusive possession and enjoyment of the land known as Woodley/Joseph Kangethe estate land parcel number LR No 209/13539.
The petitioners said that they have lived in the estate for more than 70 years, adding that the estate has historical and cultural heritage and diversity that needs to be jealously protected.
“The said members have known Woodley to be their home where they have built shops, hospitals, schools, churches among other social amenities for their use and benefit of other members of the public.
They claimed City Council (now Nairobi County Government of Nairobi) resolved to sell houses in Woodley to sitting residents,” the petition reads in part.
“Corruption marred the process where outsiders (non-residents) were allowed to buy the houses in total disregard of the existing tenants and consequently the sale was stopped when Woodley residents went to court after continuously being harassed by people who came in with letters as proof of purchase.”
The petitioners claim that the sale of the said houses was recognized as the same had happened in Makadara and Dangoretti where residents bought the City Council houses in the past and Woodley residents were expecting the same would happen in their case.
The plans to demolish the estate were mooted in 2021 by the defunct Nairobi Metropolitan Services (NMS).
They also told the court that the process was marred with corruption and other funny illegal activities.
However without considering the above case that was before him, the Judge proceeded to rely on a previous case and the Nairobi County Government defense.
” Having carefully considered the findings by the court in ELCCC 2054 of 2007, and the petition filed in this matter as well as the application dated 2nd April, 2024, I am convinced that the gravamen of the petition by the Petitioners is prayer number (D) in the petition dated 2nd April, 2024,” read the Ruling referring to the previous Judgement that the court said should be bound to other suits.
Although that prayer (D) requested the residents be allowed to buy their houses, the judge ruled that was a concealed attempt to claim ownership of the houses by the residents, which the judge said he had seen through it and was on guard against it.
He proceeded to ignore all other 6 prayers and used just that one to strike out the suit and permit the County Government to proceed on with the illegal works of house demolishing based on the above ground.
“An order does hereby issue allowing continued
enforcement of the resolution by the Nairobi City Council
(now County Government of Nairobi) to allow tenants to
buy the Council houses at Woodley Estate.” he said.
They state that was grossly injustice as their petition was not decided on correct evidence and merit but on presumptions and errors. They will appeal the decision as well as report it to the JSC seeking the Chief Justices intervention to stop the evictions & demolitions that will affect thousands of Nairobi residents.
