Ombudsman Report Reveals Eastleigh Market Land Was Grabbed By Private Developers Directs Kidero To Order For Construction Cessation

Dr Otiende Amolo, Office of the Ombudsman Chairman.

Ombudsman investigation into possible dereliction of duty, abuse of power, unfair treatment and injustice by public officials in the Eastleigh Market matter has revealed that ownership wrangles that plague the contested parcel of land are a creation of the defunct Nairobi City Council officials. The controversy surrounding the leasing of the parcel of land came to the fore early this year when two developers commenced construction at the site spurring protests from traders who were operating in the open air market. The land in question measures 0.5116 hectares (approximately 1.26 acres) and registered as 36/VII/1037.

The Office commenced an investigation into the matter following a complaint filed with the Commission on 15th December 2015 by representatives of 403 traders who had been operating in the market since 1981. The complainants alleged that the parcel of land on which Eastleigh Market sits was allocated to private developers under the guise of Public-Private-Partnership initiative leading to the demolition of stalls, they erected at their own cost, on 10th January 2009.

The investigation has revealed that officials of the defunct City Council of Nairobi unlawfully aided Ali Sheikh Mahamud and Farah Mohamed Barrow associated with Alfa Traders to acquire the same parcel of land in 2007. Specifically, we found former Deputy Town Clerk Nelson Otido and the late Hon. Dick Wathika who was serving then as Mayor culpable of abuse of power for signing the lease without following due process.

Although the lease was later revoked on the basis that it was issued unlawfully, senior County officials cleared the two developers to proceed with the construction. Specifically, Chief Valuer Isaac Nyoike confirmed on 13th February 2014 that the disputed piece of land belonged to Ali Sheikh Mahamud and Farah Mohamed Barrow. Subsequently, Director of Legal Affairs Karisa Iha informed the developers on 14th February 2014 that they were the registered owners of the parcel of land and should take possession of the premises subject to court cases being discharged.

Nairobi Governor Evans Kidero and Senator Mike Sonko both are on public record supporting the traders but nothing substatntive has been forthcoming from them to see the developers stop construction.

The investigation also found the City Council officials culpable of multiple allocations of land. The County allocated the market to 403 traders in 1981. The merchants built stalls at their expense, but the stalls were demolished in 2009 after the City Council leased the same piece of land to private developers. Despite the ownership wrangles, the City Council went ahead and allocated the same piece of land to Golden Lime International under Public-Private-Partnership Agreement. Court battles ensued between Alfa Traders and Golden Lime International over ownership of the land.

It is worth noting the file containing title documents relating Eastleigh Market – under the custody of Registrar of Tittles J.W. Kamuyu – could not be traced thereby compelling reconstruction of another one to facilitate Ombudsman’s investigation.

From the preceding, it is apparent that abuse of power led not only to a loss of earnings for the complainants but may have also caused pain and suffering to them and their families. Further, the County Government (and its predecessor) lost approximately Sh72 million that would have been collected for ground rates, licences and administration charges payable by the 403 traders at an average rate of Sh15,000 per month.

Office of the Ombudsman determined and arrived at the following conclusions:

Nairobi City County should issue a cessation notice to Mr Ali Sheikh Mohamud and Mr Farah Mohamed Barrow directing them to immediately stop construction and vacate the parcel of land, LR. No. 36/VII/1037.

City County Government should repossess and develop the parcel of land, LR. No. 36/VII/1037 into a modern market and give priority to the 403 traders or their successors.

In the event that the County Government is not able to develop the property, it should legally negotiate for a proper Public-Private Partnership contract that secures the interest of the County Government and the traders. CAJ should be involved in that process of PPP Agreement.

The Nairobi City County should compensate the Eastleigh Market traders at KSh. 150,000 each for the cost incurred in the construction of market stalls.

That Nelson Otido should not hold any public office for the reason that he unlawfully executed the lease documents in favour of Ali Sheikh Mohamud and Farah Mohamed Barrow.

The Governor should remove from office Isaac Nyoike, Chief Valuer, and Karisa Iha, Director, Legal Affairs for abuse of power and breach of public trust.

The Permanent Secretary, Ministry of Land, Housing and Urban Development should issue a warning letter, and institute any other appropriate administrative action on J.W. Kamuyu, Registrar of Titles for misbehaviour in office, inefficiency and ineptitude.

The Permanent Secretary, Ministry of Land, Housing and Urban Development should expedite automation of the Land Registry in order to address the anomaly of missing files.