War on graft: Reclaiming public land

In Summary

•Land grabbers and those who have bought land from them have used the principle of the sanctity of land titles as a defence to sustain claims to the land even when such land is demonstrated to be public property not available for sale.

•Over the years, they have received numerous court orders that have in effect kept the land in their name and allowed them to continue to sell them to unsuspecting members of the public.

President Uhuru Kenyatta at State House Nairobi
President Uhuru Kenyatta at State House Nairobi
Image: PSCU

The last couple of years has seen the Government, through various agencies in the Justice, Law and Order sectors, move fast to reclaim public property that had been fraudulently transferred to private individuals. In the last year alone, the agencies have been able to recover land worth 2 billion shillings belonging to the University of Nairobi and another belonging to Racecourse Primary School valued at 700 million shillings. Both parcels of land were recovered through plea negotiations.

Land retains a focal point in Kenya’s history. It was the basis upon which the struggle for independence was waged. It has traditionally dictated the pulse of our nationhood and continues to command a pivotal position in the country’s social, economic, political and legal relations. It is not surprising therefore that land has since the colonial times to-date, been the subject of myriad conflicts and ethnic violence leading to loss of many lives and displacement of millions more. Neither is it surprising that it has been the subject of many Commissions of Inquiry, most of whose findings remain unimplemented.

Land grabbers and those who have bought land from them have used the principle of the sanctity of land titles as a defence to sustain claims to the land even when such land is demonstrated to be public property not available for sale. Over the years, they have received numerous court orders that have in effect kept the land in their name and allowed them to continue to sell them to unsuspecting members of the public.

However, a new partnership among Government agencies especially the multi-agency task team (MATT) and a reformed Judiciary has seen this trend reversed and Government land reclaimed.

In a case in which the Nairobi City Council fraudulently allocated a Government house in Woodley Estate to a private individual without following the law, Justice S. Okongo issued a precedent affirming ruling when he stated that, “In my view, a title created through an illegal process is a nullity. The title for the suit property came about as a result of an illegal process that was undertaken by the Council. That process did not confer upon the council a valid interest in the suit property that it could convey to the defendant. An illegal and flawed process could not give rise to a valid title. This court cannot endorse a title created illegally.”

Cases like the one subject of the above ruling are in the thousands in this country. The Ndungu Commission has enumerated hundreds of such cases where Government officials colluded with private developers to alienate public property and transfer the same into private hands.

One such case is the one involving the grabbing of part of Kisumu Law Courts. The land was in May 1951 reserved for use by the Judiciary and a title issued to the Government in 1975 allowing the construction of the Law Courts. However, in 1994 following a letter of no-objection by the then Magistrate-in-Charge as the custodian of the Kisumu Law Courts), the Commissioner of lands allocated it to Ms Mayhood Limited who then sold its right to another party who proceeded to mortgage it to Bank of Baroda. The Bank threatened to exercise its statutory power of sale after default on the loan. That a custodian of the law could break the law and allow his premises of work to be privatized is the height of impunity and abuse of office. The case was litigated in the High Court and the land reverted to the Government.

To further demonstrate the rot surrounding allocation of public land is another case in Bamburi, Mombasa. The land in question was reserved for civil servants’ housing in 1975 and a house constructed in 1978/9. However, in 1998 the then Commissioner of Lands Mr Sammy Mwaita allotted himself the land despite it being occupied by a Government house. When accused of abuse of office, he laughably claimed that nothing stopped him as Commissioner of Lands from allotting to himself as a private individual the piece of land, notwithstanding the fact that this was public property for which he was the custodian. The case was won and the land is now back to its original owner, Government of Kenya.

To those buying land known to be public land under the cover of the sanctity of land titles should be reminded of the principle of ex dolo malo non oritur action: No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.

These and many more cases demonstrate that whenever there has been multi-agency cooperation, cases of corruption have been quickly investigated and successfully prosecuted. One would like to see this efficiency of cooperation come to bear on some of the high profile cases involving corruption like the Arror-Kimwarer case, the several cases involving corruption by Governors, the corruption case involving KPA and KPC and many others so that they are concluded and culprits brought to book.