Deputy President William Ruto claims to be an innocent buyer of irregularly alienated government land, but seeks to be allowed to compensate government for its loss.
The National Land Commission purports to approve of this solution.
Both are mistaken about the law.
First off, government cannot be compensated for land that was alienated from it by fraud or illegality.
The NLC’s mandate is limited to historical land injustices and the government is not contemplated as a victim of historical injustice as it has the power to reverse thefts of its land.
The Civil Aviation Authority is a government agency, hence it cannot be compensated for land stolen from it, and it would be extremely bad public policy to set a precedent where government would take money for land it robbed from it.
Second, addressing the position of the owner of the Weston Hotel, the defence of ‘innocent purchaser’ is not applicable where there has been fraud or illegality in the transfer of government property.
Even if CAA was a private person, the new Land Law (Section 26(1) of the Land Registration Act No 3 of 2012) would not permit Weston Hotel to claim the fabled status of an innocent third party purchaser for value without notice.
This is even if they had absolutely nothing to do with the original scheme to irregularly take government land.
In the case of Elijah Makeri Nyangwara v Stephen Mungai Njuguna & Another (2013) eKLR the Court considered the implication of Section 26(1) of the Land Registration Act No. 3 of 2012 with regard to innocent purchaser,
“…The heavy import of section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title
of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme.
The title holder need not have contributed to these vitiating factors.
The purpose of section 26 (1) (b)
in my view is to protect the real title holders from being deprived of their titles by subsequent
transactions.’’
The position that a fraudulent title cannot be allowed to stand has been affirmed at the Court of Appeal level in the case of Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others, Court of Appeal at Nairobi, Civil Appeal No. 246 of 2013 (2015) eKLR. This is a case where certain crooks fraudulently acquired title to land and later sold the same to other parties. The Environment and Land Court at Nairobi, cancelled all titles and ordered the land to revert to the original owner. The decision was upheld by the Court of Appeal.
Fourth, even under the old legal regime, Section 26 of the former Land Registration Act qualified that an innocent purchaser status would be denied to anyone claiming following a process proven to be tainted by
fraud or misrepresentation, to which the claimant is proved to be a party; or where the certificate of the title has been acquired illegally, unprocedurally or through a corrupt scheme.
There is sufficient evidence and law behind the proposition that Weston Hotel title should be cancelled by the Registrar without compensation to the owners.
The hotel owner’s remedy is against the persons who sold him government land, and is no concern to the public anymore.
I am, therefore, very glad to hear that the Head of the Public Service has communicated the President’s direction to the CS for Lands to cancel the illegal title held by Weston hotel.
Mati is
CEO, Mars Group