Actis land case with forest agency set for fresh hearing

Court issues two orders: One, restraining the Kenya Forest Service from interfering in the construction and the second, stopping the construction. 

By GALGALLO FAYO
 

 

In Summary

• Justice Mary Githumbi said two orders issued by the court, one restraining the Kenya Forest Service (KFS) from interfering in the construction and the second stopping the construction; are conflicting.

A High Court judge has directed an application seeking to stop the construction of a Sh2 billion office block on Nairobi’s Ngong Road to be heard afresh, saying that the court erred when it issued conflicting orders.

Justice Mary Githumbi said two orders issued by the court, one restraining the Kenya Forest Service (KFS) from interfering in the construction and the second stopping the construction; are conflicting.

An ownership dispute pitting the Kenya Forest Service and private equity firm Actis has stopped construction of a 15,000 square metres office block that started in October last year and was to end in December this year.

“On the issue of the status quo order being in conflict with pre-existing orders, this court confirms this position. Indeed, the court acknowledges that in extending the interim orders and at the same time issuing the status quo order, this court did in fact issue two conflicting orders,” said Justice Githumbi in her ruling.

Actis moved to court in January saying guards from the Kenya Forest service had invaded stopped the construction claiming it is a gazetted forest. Justice Eric Ogolla heard the case exparte and gave interim orders lasting until the next mention date, restraining KFS from interfering with the construction.

(Read: Actis seeks orders to complete Sh2bn complex)

On January 22, Actis made another contempt application against KFS director David Mbugua claiming that the guards have continued to occupy the land despite the court orders.

When contempt application came up for hearing in February, KFS requested adjournment saying that it will seek an alternative dispute resolution mechanism, which was adjourned until April 4.

Meanwhile on March 13, KFS applied to the court to lift the injunction issued by Justice Ogolla arguing that the order was to last until the next hearing date and that Actis has accelerated the construction, which is damaging the forest.

Justice Mumbi on April 4 when the case came before her for mention extended the orders restraining KFS from interfering with construction and a separate new order stopping the construction decision which was challenged by Actis.

“On the court lacking jurisdiction to make substantive order during a mention, the court agrees with the plaintiff that this is indeed the correct position in law,” Justice Mumbi agreed with Actis.

Actis has said it was losing Sh24 million monthly due to the stalled construction.

Actis, which has raised Sh24 billion from investors for ventures in Africa’s real estate, says it originally acquired the land from the Jockey Club of Kenya — which was offered the disputed land by the colonial government in 1927 in exchange for property that is the present day Kariokor area.

The PE fund was intending to host banking halls, conference centre and retail zone, an expansion of the Nairobi Business Park that Actis launched in 2004, deepening its investment in Kenya’s lucrative real estate market.

The PE fund has also started a Sh12.4 billion housing project along Thika Superhighway, dubbed Garden City, on a 32-acre piece of land that is adjacent to and previously owned by East Africa Breweries Limited.

 

The mall will include a 50,000 square metres retail mall, commercial premises, 500 homes, and a four-acre central park—the biggest in the region. The mall will be bigger than the Sarit Centre (30,000sq metres), Junction (26,000sq metres), and Westgate (30,000sq metres).