KWS to pay hotel owners Sh454m for demolition of property in 1997

A dispute over a piece of land where a Malindi hotel was destroyed in 1997 by people alleged to be Kenya Wildlife Service (KWS) rangers has come back to haunt the service.

Taxpayers will now be forced to pay Sh454 million for their actions after the Court of Appeal dismissed an appeal by KWS.

Sea Star Malindi Limited owners Gianluigi Cernuci and Pizzigoni Mania will get the money after justices Pauline Nyamweya, George Odunga and Gatemba Kairu okayed a High Court ruling that was in their favour.

The case has been in the corridors of justice since 1998.

In a majority opinion, justices Nyamweya and Odunga held that Sea Star deserved to be compensated by KWS for the construction costs, but reduced the general damages from Sh30 million to Sh3 million with interest.

Justice Gatembu, in a dissenting opinion, held that the matter should be brought before a different judge in the Environment Court.

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He was of the opinion that cases ELC 56 of 2016 and ELC 47 of 2016 should be heard together or consolidated to determine the relief sought by Sea Star.

“Given that the reliefs Sea Star seeks in both matters revolve substantially around the demolition and reconstruction of the hotel, it would, in my view, be imperative, that the matters be resolved by the same court,” he said.

Sea Star told court that it was registered as the absolute owner of LR 3170 Malindi.

Cernuci and Mania said the land was first surveyed in 1914 as private land and at no time was there any dispute over its ownership or that it had been set aside for use by the government.

They claimed that Legal Notice 99 of 1968, which declared 100 feet of government land in Malindi Marine Park, did not apply to their land because it was several kilometres away.

The two said that on November 9, 1997, KWS employee David Western and rangers from the service visited their land. Western ordered armed guards to occupy the land and stop construction work that was taking place.

Cernuci and Mania told the court that KWS claimed they were on government land and the hotel had been placed under its administration. They said they were forced to stop building a hotel, which was half-complete by August 20, 1997.

They further claimed that the construction had cost Sh70 million, borrowed at an interest rate of 35 per cent, and that they expected to complete works by December 1, 1997, for Sh100 million.

According to them, KWS violated their constitutional rights and caused them huge financial losses. They added that some of their workers were rendered jobless as a result.

On November 8, 2002, the High Court quashed a letter from KWS stopping the hotel’s construction.

Sea Star wanted to be paid for the difference in construction time from the time the work was stopped until it was completed, which it estimated would take 18 months.

They calculated this at $75,000 (Sh9.7 million at the current exchange rate) per month, with interest calculated at the bank overdraft rate of 35 per cent per annum.

KWS denied Sea Star’s allegations, saying that the land bordered the Malindi Marine National Reserve and Park and that the construction of the hotel encroached on a legally protected area.

They told the court that their action to stop the development was justified because it would be detrimental to the ecosystem.

Mr Western said he was no longer the director of KWS and could not be held liable.