Wetang'ula fails to stop Sh7.2m payout to Mombasa Cement

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The Speaker of the National Assembly, Moses Wetangula, has lost a bid to stop a Sh7.2 million payout by Parliament to Mombasa Cement as costs awarded by the Court in a 2018 land dispute.

The Court of Appeal in Mombasa dismissed Wetangula’s appeal that opposed the Sh7,212,126.67 awarded to Mombasa Cement by the Taxing Master.

The Sh7,212,126.67 cost was awarded by Justice Sila Munyao in April 2020 after upholding Mombasa Cement’s petition that challenged Parliament’s attempt to vacate the cement manufacturers from the 672.3 acres of land in Vipingo, Kilifi County.

Wetangula filed a reference dated September 1, 2023, objecting to the decision of the taxing master awarding the said cost to Mombasa Cement.

Justices Agnes Murgor, Kibaya Laibuta and Macharia Ngenye allowed Mombasa Cement’s Notice of Motion that opposed Wetangula’s appeal.

The judges said that Wetangula filed and served Mombasa Cement with the record of appeal way beyond the 60 days.

“No doubt, the pleadings disclose that the 1st Respondent (Speaker of the National Assembly) filed and served the record on the Applicant (Mombasa Cement) way beyond the stipulated period of 60 days,” said Justice Murgor.

The Court also faulted Wetangula for failure to seek time to regularise the infraction and seek leave of court to file out of time.

“In the premises, the Notice of Motion dated September 27 2021 is merited and is hereby allowed, with the result that the Record of Appeal filed on September 17 2024 and served on September 18 2024 is hereby struck out with costs to the Applicant,” said Justice Murgor.

 In the Appeal, Wetangula argued that a Certificate of Delay served made adequate provision for their late filing of the record of appeal.

The Clerk of the National Assembly, Samuel Njoroge, said that the time taken by the court to prepare and supply the typed proceedings, being a period of 182 days, ought to be excluded from the computation of time within which the appeal was to be lodged.

Njoroge said that, upon exclusion of the period of delay, the Record of Appeal would be considered to be duly filed within 60 days from the date of collection of the proceedings, and therefore filed within the prescribed timelines.

However, the judges said that the grave omission caused the Record of Appeal to fall victim to the strictures of Rule 86 of this Court’s Rules, thereby rendering it liable to be struck out.

In his judgment dated April 29 2020, which was later upheld by the Court of Appeal, Justice Munyao said that Parliament and its departmental committees do not have the constitutional powers to review public land grants or resolve land titles and ownership disputes.

Justice Munyao said that the National Assembly and its departmental committees had acted outside their constitutional powers.

Parliament does not have the mandate to determine land ownership, reverse public land grants, or resolve private title ownership disputes.

Justice Munyao stopped the Cabinet Secretary, Ministry of Lands and Physical Planning from implementing the report of the National Assembly, Departmental Committee on Lands titled “Report on Ownership of Mombasa Cement Limited Land in Kilifi County that sought to revoke the said title deeds and revert the said land back to the government.

“An order of certiorari is hereby issued quashing the report of the National Assembly, Departmental Committee on Lands titled “Report on Ownership of Mombasa Cement Limited Land in Kilifi County” and all subsequent actions and directives made pursuant to the said report are hereby declared null and void,” said Justice Munyao in his judgement 2020.