The owner of Ukay Centre has sued for Sh2.3 billion following the demolition of the mall in August last year.
Kental Enterprises Ltd, the company that owns the building, accuses the government of malicious destruction of the property.
The mall was demolished for sitting on riparian land.
The mall owners want the court to order an inquiry for lost business and investment opportunities following the demolition and the government be forced to pay the damages.
In a suit filed through lawyer Allen Gichuhi, the company has sought an order declaring that the demolition of the property was a violation because it was done without due process and violation of the right to own property.
LEGALITY OF TITLES
The mall sat on three parcels of land and argues the property was tacitly forcefully acquired by the government, because there has been no contention on the legality of the titles to the land.
Mr Gichuhi has placed the value of the first parcel at Sh1.6 billion plus a disturbance allowance of Sh242 million. Kental isalso seeking Sh460 million for the two remaining parcels, valuing the site at Sh2.31 billion
Mr Bimal Shah, the managing director of the company, said “at all material times when the suit properties were purchased, the petitioner was a bona fide purchaser for value of the suit premises without any notice of any defect in title.”
Mr Shah said the demolition was done without basis, illegal and breached his property rights.
He said on or about May 23, 2018, the company received a notice from City Hall alleging that they had undertaken illegal alterations of the property without approval and requisite authorisations.
The notice required the company to submit structural drawings within seven days.
Mr Shah say the firm complied with the order confirming the building was in line with approved plans
But the county government wrote back on July 6, alleging that part of the building had encroached onto riparian reserve and should be demolished.
Mr Gichuhi said the High Court had earlier stopped the Commissioner of Land from revoking the title for the property on claims that it lay on a riparian reserve.
BUILDING PLANS APPROVED
The building plans, the company said, were approved on June 16, 1994 by the defunct Nairobi City Council and were amended and approved on August 11, 1995.
“Having fully complied with the laws, including laws on requirements of a riparian reserve, the company had a legitimate expectation that its crystalised rights cannot be arbitrarily taken away, even on the basis of a subsequent law which amends provisions on riparian reserves,” Mr Shah said in an affidavit.
He added that City Hall had on May 17, 2018 granted further approvals for fresh improvements to the property.
Mr Gichuhi said the demolition was unlawful as the rights of the tenants and the company were breached.
“They unlawfully destroyed the tenants’ properties and source of income without due process of the law,” Mr Gichuhi said.
The company reckons that the construction of the building had the nod of the State and was supported by the law.
And being state actors and agents, it says, they could not arbitrarily deprive the company of its property rights especially when the legality of the title was upheld by a court of law.
Further, the company said it was not given a hearing, adding that City Hall has no authority to issue a notice touching on demarcation of riparian reserves.