A Deed of settlement between Telkom Kenya and a company associated with the family of Mining and Blue Economy CS Ali Hassan Joho is at the centre of a compensation amounting to Sh 15 billion on a land currently being used to construct the Talanta Stadium by government in readiness of the Africa Cup of Nations (AFCON) matches in 2027.
Counsel had told the court that the said deed gives Aftraco Limited 47.6 acres of the land and from this, the company will receive a whooping Sh 9 billion in the pending compensation.
But it must be pointed out that in his judgment, Justice Joseph Ogutu Mboya exclusively granted compensation in its entity to Telkom Kenya.
He ordered that the requisite compensation to and in favor of the Telkom Kenya be assessed and awarded in the sum of Sh 15 Billion as against the Ministry of Sports, Culture and Heritage, who is responsible for the offensive entry onto and construction of the impugned Posta Sports Ground.
He castigated the forceful acquisition saying It is not expected that the State, in this age and time and with a robust Constitution such as ours, can actively participate in acts of impunity such as the forceful take-over of personal property without due compensation.
This is after in 2011, the company had agreed to buy the parcel of land from Telkom Kenya for Sh 1.52 billion and consequently paying a 10 per cent deposit of Sh 152 million to Telkom Kenya.
But as the matter came to court, some independent valuers Mauna Consulting Limited and Gimco Limited who raised the value to Sh 15.01 billion and 15.8 billion respectively.
In the premises, I beg to point out that the reasonable value of the suit property for purposes of determining the requisite compensation is derivable from the valuation report filed by and on behalf of the 1st Petitioner. Consequently, and without belaboring the point, I come to the conclusion that the value of the suit property for purposes of compensation is Kes.15 billion only
Justice Joseph Ogutu Mboya
In addition, Telkom Kenya was awarded costs as well as 14 per cent interest accrued from the date of the judgement.
The 79-acre land near the Jamhuri Park in Nairobi was forcefully acquired by the Ministry of Sports, Culture and Heritage in what has been described as illegal and unlawful in a High Court ruling by Justice Oguttu Mboya in July last year.
“Declaration be and is hereby made that the act of taking possession of Land Reference No. 7656 situate along Ngong Road (‘the suit property’) by the 1st Respondent was illegal, unlawful and is an arbitrary deprivation of the 1st Petitioner’s constitutional right to property as enshrined under Article 40(3) of the Constitution,” stated Justice Mboya in a comprehensive judgement.
But new information has emerged in reports that Aftraco Limited has connections with the CS Joho after it emerged that the Postal Address used in registering the company in the Business Registration Service (BRS) is the same address used to register another company Portside Freight Limited owned by Abubaker Ali Joho to the tune of 75b shares as Hamid Khamis owns 25 shares.
Aftraco is owned by Hellen Alice Olwande (one share), Jane Jepkemboi Sumbeiywo (499 shares) and Salim Sadru (500 shares).
Aftraco Limited appeared before the court as the second petitioner as Telkom Kenya was the First petitioner and the former, through their counsel submitted that the land in question entirely belonged to Telkom Kenya, although claiming a stake in the land.
Nevertheless, Learned Counsel for the 2nd Petitioner has submitted that even though the 1st Petitioner remains the lawful and registered proprietor of the suit property, same entered upon and executed a sale agreement dated the 5th July 2011, wherein same covenanted to sell to and in favor of the 2nd Petitioner a portion of the suit property measuring 60 acres
Justice Mboya
Aftraco lawyers Ahmednassir Abdulahi represented in court by Ms Wangui submitted that subsequently the Telkom Kenya and the Aftraco Limited entered into and executed a Deed of settlement dated the 1st August 2018; wherein it was agreed that the Aftraco would be entitled to a portion measuring 47.4 acres out of the suit property.
Upon compensation of Sh 15 million to Telkom Kenya, the Judge decreed that the Telkom Kenya shall surrender the certificate of title over and in respect of the suit property to the Chief Land Registrar for necessary cancellation within a duration 180 days and issuance of the requisite of title to and in favor of the Ministry of Sports, Culture and Heritage.
Notably, in the case, another company Exclusive Estate Limited who had claimed ownership based on an arbitration by Jan Mohammed was dismissed and so was a claim by the Postel Housing Cooperative Society.
“Learned counsel for Telkom Kenya has submitted that the award by the single arbitrator, which had decreed Exclusive Estate Limited to be the owner of 60 acres out of the suit property was set aside vide ruling delivered on the 22nd Aril 2021. In this regard, Learned Counsel has pointed out that the Exclusive Estate Limited’s claim to the suit property or a portion thereof has since been determined and/or disposed of,” stated Justice Mboya
