This brought a 27-year-old court conflict between Pati Limited, Funzi Island and Kwale County to its ultimate conclusion. The highest court in the land declared that the luxury hotel was built on forest land reserved for boat landing activities.
The hotel is owned by Alessandro Torriani, a tycoon from Italy. In 2005, court documents found the valuation of the hotel to be estimated at Ksh240 million.
The tycoon argued in court that the land was private and he had set Ksh400,000 as compensation should any claim of ownership of the land arise.
Pati further asserted that there is no record of objection from any member of the local community and the area land control board asserted that the land was transferred legally to Pati.
The case was heard by Deputy Chief Justice Philomena Mwilu, Justices Smoking Wanjala, Njoki Ndung’u, Isaac Lenaola and Mohamed Ibrahim who upheld the Court of Appeal’s findings that the land was illegally allocated to Pati.
“The entire process and notice for setting apart fell far short of the requirements of the Constitution and the law”.
“In view of these shortcomings and our conclusion regarding the legal status of the suit land, we find no reason to turn around the judgment of the Court of Appeal,” the court ruled.
Pati sued Funzi Island Development Limited, retired High Court Judge Jonathan Havelock, M.E Havelock Kwale County Council and the commissioner of Lands in its appeal.
According to court records, Justice Havelock is said to be a director at Funzi Island Development limited.
The land in question was set apart for the benefit of local communities as a boat landing area and the court ruled out the possibility of a further notice existing on record for change of purpose.
The 7.5 acres strip of land lies at the shores of the Indian Ocean in Msambweni on the western side of Funzi Island.It was leased to Pate for a period of 99 years starting August 1,1994.