The Kenya Revenue Authority (KRA) has won a reprieve after the Environment and Land Court declared that it is the lawful owner of a parcel of land in Mombasa, which had also been claimed by an individual and charged to a bank for a Sh42 million loan.
Justice Nelly Matheka directed the Chief Land Registrar to issue a new grant in favour of KRA as the lawful and legitimate proprietor of Land Reference Mainland North/1/2415, Mombasa where the taxman developed a three-bedroomed bungalow for its senior staff.
The judge ruled that the property was vested in the government for use by the Customs and Excise department, KRA’s predecessor, in the title which had acquired indefeasible proprietary interests and rights over it.
“At all material times, the suit property was in possession of the customs department and was never available for allocation to any party. The approved plan number 38 dated February 1975 shows that the property was indeed reserved for the customs department,” ruled the court.
Justice Matheka said that KRA and the Customs Department have been in possession of the property since 1975 and used over the years for housing some of its senior staff members.
KRA had sued Mr Osman Said, NBK, Joseph Gikonyo trading as Garam Investments Auctioneers, Chief Land Registrar, and the National Land Commission.
The court agreed with KRA’s submissions that the then Commissioner of Land had no authority to issue developed public land.
“It is not lost to this court that the property was investigated under the Ndung’u Commission of Inquiry on Public Land. I find that the first defendant (Mr Said) does not have a valid title and cannot transact with it in any manner whatsoever,” ruled Justice Matheka.
The taxman told the court that it was the registered proprietor of the land and a house built on it which was part of its staff quarters commonly known as Bamburi senior’s estate.
KRA said that Mr Said had claimed ownership based on a grant issued in favour of David Ndung’u on February 18, 2003, and a transfer registered in his (Mr Said) favour on July 5, 2005, and that the grant was obtained unprocedural as it was developed public land.
Mr Said denied all allegations and said that he bought the parcel of land which was registered in his name and that the revocation of the grant by the land registrar was declared null and void.
He contended that the charges were procured fraudulently and that he never executed any charge instrument which necessitated him to file a complaint at the Central Police Station.
In his counterclaim which was dismissed, he had sought orders among them a declaration that he was the registered owner of the property and that an order of eviction be issued against KRA.
NBK had told the court that the land was registered in the name of Mr Said and that the first charge against it (land) was dated March 19, 2015, and a variation of it dated September 18, 2015, for a Sh42 million loan facility.
The bank argued that it was not true that it failed to conduct due diligence as it obtained the certificate of title and land rent clearance certificates, a valuation report, physical site visits, and consent to charge from the commissioner of lands.
NBK told the court that in the event that the ownership of Mr Said was fraudulent, they did not participate in his acquisition of it.
It also told the court that the longer it (bank) is restrained from realizing its securities, the larger the debt is due and owing.
The court issued a declaration that the charge dated March 19, 2015, made in favour of NBK and registered against the land on April 8, 2015 stands cancelled.
Justice Matheka also issued a declaration that the variation of the charge dated September 18, 2015, made in favour of NBK and registered against the land on September 25 of the same year stands cancelled.
The judge also issued a permanent injunction restraining the defendants from selling, disposing, or interfering with KRA’s possession and quiet enjoyment or in any way dealing with the land.
