[Image]A 25-year dispute between the Kenya Wildlife Service (KWS) and a hotel developer in Malindi could leave the taxpayer with a Sh2.1 billion bill.The High Court recently ordered the agency to compensate Sea Star Malindi Ltd for the demolition of its property in November 1997.KWS June 1 lamented that it would be left in dire financial straits should the firm be allowed to enforce the judgment.RELATEDBritish businessman charged with wife's murderKilifi 47 min agoTreasury takes Sh138bn loans in four monthsBusiness 47 min ago“The decretal Sh2.1 billion is a colossal sum and if the respondent commences execution, it will cripple the agency’s functions of conservation and management of parks which are funded by the taxpayers,” it said.Also Read: Return of Kilifi witch killings worries authoritiesThe multimillion-shilling hotel was reportedly illegally flattened on KWS orders, even after being issued with approvals to develop the property.The company claims that being the registered owner of a beach plot in Malindi, it applied to the defunct municipality for a permit to construct a five-star hotel in 1996. Upon receipt of the permit and necessary approvals, it embarked on the construction of the same.But in November 1997, KWS game rangers stormed the property and stopped the construction. They kept guard and ensured no activities took place. The firm said the construction of the hotel was to be completed in December of the same year.“The activities of KWS have occasioned heavy financial losses as the firm has been unable to complete the hotel, which was already halfway built and or to repay the loans borrowed for purposes of carrying out the construction,” it saidDespite demand made and notice of intention to sue, the company said KWS persisted in their occupation of the suit premises hence making it necessary to file the case.In 2018, the Environment and Land Court (ELC) ordered KWS to compensate the firm Sh90 million, being the cost of the reconstruction of the hotel and general damages of Sh30 million, with interest until payment in full and costs of the suit.KWS was not satisfied with the award, but delayed to appeal. It then returned to the court to apply for an extension of time to file the appeal.Also Read: Warrant of arrest against 2 lifted in Sh1 billion hotel fraudKWS said it delayed filing its record of appeal because it was not served with relevant documents in time, such as certified typed proceedings from the ELC. “The agency would, therefore, suffer grave prejudice if it is not allowed to pursue its right to appeal,” it said.Sea Star Malindi Ltd Director Michele Marchioro opposed the application, noting that no plausible reason had been given to enable the court to extend time.Through lawyer Kevin Anami, Mr Marchioro argued that KWS failed to explain why two years since the agency was allowed to appeal against the award, it had not taken steps to move the appeal forward.“The instant application was a delaying tactic, especially in light of the fact that two of the company’s three directors were octogenarians and KWS’ intention is, therefore, to permanently deny us justice,” said Mr Anami.The firm also disputed the accuracy of the Sh2.1 billion cited by KWS.He also lamented that the dispute has been in the High Court for over 20 years and the company had suffered substantial financial loss in litigating the case and shall suffer great prejudice if the application is allowed, as it will amount to rewarding KWS’s unjust conduct.Lawyers Kiragu Kimani and Titus Mugambi for KWS claimed that the said property was public land and that it was justified to stop the construction, which was being undertaken on a legally protected area that is adjacent to the area designated as Malindi Marine National Reserve and Park.Court of Appeal Judge Pauline Nyamweya, however, allowed KWS’s application for an extension of time, arguing that the reason for the delay was satisfactory.“On the whole, the reasons proffered by KWS for the various delays are reasonable, and the agency has demonstrated the steps it has taken in moving its appeal. The delay is, therefore, excusable and not inordinate,” said the judge.She also said there are interventions that are available to mitigate and address any prejudice during the pendency of an appeal, which he said are the more appropriate course of action in balancing the interests of both parties and in the interests of substantive justice in the circumstances. BY DAILY NATION
posted by Breaking Kenya news at 12:30 on 2 Jun 2022
"Taxpayers could lose Sh2.1bn in KWS property saga"
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