Friday, August 19, 2022

Kenya

Tourism firm loses Sh44m claim in Maralal Wildlife Sanctuary eviction row

A tourism company has lost a claim of Sh44 million from Samburu County for alleged illegal eviction from Maralal Wildlife Sanctuary seven years ago.

The firm, Africality CIO trading as Africality Maralal Safari Lodge Limited, wanted the court to award it damages amounting to Sh44,385,767 for the eviction that happened in September 2015.

It indicated that via an agreement dated November 1, 2014, it leased from the county government public property known as Maralal Safari Lodge, within Maralal Wildlife Sanctuary for 10 years.

The purpose of the lease was to operate a hotel and tourism business. The suit premises coverers about 1,235 acres.

The chairman and founder of the organisation and the company, Gabriel Lemalasia, testified that it was the directive of Governor Moses Lenolkulal that the lodge should be leased out with or without an advertisement as required by the procurement law.

He said on September 23, 2015, while undertaking routine operations of the lodge, the county government evicted the company from the sanctuary without prior notice or the sanction of a court order.

Financial loss

The court heard that the Lodge suffered a financial loss of Sh44,385,767 as a result of the said eviction for which, he said, the county government was liable.

But Justice Yuvinalis Angima dismissed the claim after finding that there was no lease or legally binding contract between the parties over the lodge.

The court said although the tourism company took possession of the lodge, renovated it, and undertook operations at its expense, such actions were undertaken based on a “gentleman’s agreement” and not a legally binding contract.

Justice Angima found that by the company taking possession of the lodge and expending funds on operating it before any lease document could be executed and failing to comply with the public procurement law the company was doing so at its own risk.

“The county government could not be liable to the company for expenses incurred in such circumstances.

“The county government cannot be faulted for repossessing public property, which it was holding in trust for the people of Samburu County. Accordingly, the court finds and holds that Africality CIO is not entitled to the reliefs sought in the suit,” said the judge.

Legally binding

There was also no evidence on record to demonstrate that there was compliance with the applicable legal regime under the Public Procurement and Disposal Act (2005) which was then in force in 2014.

“The court is thus of the opinion that there was no lease or legally binding agreement between parties over the lodge.

The intended lease document was never executed by the parties hence the plaintiff merely acted on a gentleman’s understanding to take possession of the lodge, undertake renovations and operate it for the period of time it was in possession,” said Justice Angima.

Even if the court had found that there was a lease between the parties, the judge said it would not have been persuaded to hold the county government liable for it for reasons of public policy.

“A court of law should not enforce any contracts, which have been made in breach of the law,” said the judge.

The founder of the company had stated that the county government after changing its attitude also engaged in a smear campaign against the organisation including inciting members of the local community against it.

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