In a major legal turn, the Court of
Appeal has reopened a high-profile land dispute involving the Kenya
Broadcasting Corporation (KBC), Housing Finance Company of Kenya (HFCK) and
Kensko Agro Products, following a compelling application by the Ethics and
Anti-Corruption Commission (EACC).
The ruling, delivered on May 23,
2025, set aside the court’s own 2019 judgment and sent the case back to the
Environment and Land Court (ELC) for a fresh hearing based on new evidence.
The decision is a significant shift
in a matter that had been thought closed, centering around three prime parcels
of land; Mombasa/Block XXI/580, 581, and 582, that HFCK claims to own but which
EACC now alleges were irregularly acquired.
Roots of
the dispute
The saga began in 2013, when HFCK
sued KBC and the Attorney General, accusing them of trespassing on its land in
Mombasa, originally part of Mombasa Municipality Block XXI/577.
Kensko Agro Products was later
enjoined as a third party.
HFCK argued it lawfully acquired the
land from Kensko for Sh30 million and had enjoyed peaceful possession since
1995 until 2005, when KBC allegedly erected a perimeter wall, prompting legal
action.
Both the Environment and Land Court
and the Court of Appeal upheld HFCK’s claim.
But the story did not end there.
EACC steps
in
In July 2023, the EACC filed an
application seeking to join the case and present fresh evidence that could
alter the entire course of the dispute.
According to the EACC, the land in
question was public land initially reserved for the expansion of KBC and was
never legally alienated.
The commission, through an affidavit
by investigating officer Stephen Ivuvu, revealed it had launched an
investigation after receiving a complaint in 2022.
The probe uncovered that the suit
property was unlawfully allocated to a private entity, Silver Clouds
Investments Ltd., through a dubious letter of allotment dated May 9, 1994.
Ivuvu stated that the letter of
allotment was based on an unapproved and unreferenced sketch plan, not a valid
Part Development Plan (PDP).
He noted that the reference number
cited, TP/3/2/XX/138A, did not conform to the numbering system used by the
Department of Physical Planning.
Ivuvu said a sketch could not be
basis for allocation, adding that the letter of allotment was therefore null
and void.
Allegations
of fraud
The EACC also questioned a Sh14
million discrepancy in the declared transaction amount between HFCK and Kensko.
While the transfer document
indicated a purchase price of Sh44 million, only Sh30 million was received.
He said the discrepancy coupled with
the material non-disclosure by Kensko showed that they had knowledge that the
suit property was public land.
Further, EACC argued that the sum
not disclosed represented a fraudulent benefit to HFCK officials.
Why reopen
the case?
EACC’s counsel told the Court that
the commission was not a party to the original suit and could only act after
concluding its investigations.
She argued that the new evidence was
vital and had never been presented in any court.
She cited public interest as a key
reason for reopening the matter, noting the land was originally set aside for a
public institution.
The counsel stated that the public
would suffer great prejudice if land reserved for a national broadcaster is
left in the hands of a private entity without full scrutiny.
She added that EACC was simply
discharging its constitutional mandate under Article 79.
The counsel representing KBC,
supported the application. She said the state broadcaster lacked investigative
powers and had relied on the EACC to unearth the truth.
Opposing voices
HFCK opposed the application
strongly.
Its Head of Legal, Belinda Nganga,
filed a sworn affidavit asserting that the land was acquired legally after
proper due diligence, including a valuation report dated February 21, 1995.
She accused the EACC of attempting
to resurrect a case that had been conclusively determined.
“Reopening this matter will occasion
injustice and prejudice to HFCK,” she argued. “We have enjoyed lawful
possession since 1995, and both trial and appellate courts ruled in our
favour.”
Nganga also pointed out that EACC’s
new evidence, including the 1994 allotment letter and PDP No 198, was neither
new nor unavailable during the initial trial.
Kensko Agro Products and the
Attorney General echoed HFCK’s concerns.
Kensko, through Director Francis
Waiganjo Kimanga, dismissed the EACC’s move as a delay tactic, pointing out
that the commission had already filed a related case seeking similar reliefs.
“This application comes too late and
offends the principle of finality in litigation,” Kensko’s counsel said. “It
also creates parallel proceedings on the same matter.”
The Court’s
take
Despite strong opposition, the Court
of Appeal; composed of Justices F Tuiyott, Kibaya Imaana Laibuta, and
Ngenye-Macharia, found merit in EACC’s plea.
“We are satisfied that the
applicant, being an entity mandated to protect public property, has raised
weighty issues deserving of judicial scrutiny,” the ruling stated.
“The matter is one of public
interest and the new evidence was not available during the initial hearing.”
The Court emphasised that EACC had
demonstrated exceptional circumstances justifying the reopening of the case.
“The issues are not frivolous or
vexatious. If the 2nd respondent (HFCK) truly acquired the land legally, it
should have no problem defending itself again,” the judges noted.
Orders
of the Court
The Court granted EACC’s application, setting aside the judgment delivered
on March 7, 2019.
Further, the court remitted the matter to the Environment and Land Court in Mombasa for retrial based on the new evidence, and enjoined EACC as an interested party in the trial court.
“In view of the foregoing, we have no doubt that the application herein is not made in vain. We hereby allow the applicant’s Notice of Motion dated July 11, 2023 in the term that the matter be remitted to the trial court
(the ELC) at Mombasa for the purpose of taking new evidence,” the judges ruled.
