The family of former Kenya Seed Company Managing Director Nathaniel Tum has been blocked from collecting rent from a contested property in Kitale town, allegedly grabbed from a public school.
Justice Christopher Nzili of the Environment and Lands Court further issued an order restraining the family led by the administrator of Tum’s estate Edwin Kipchirchir, from charging, leasing, developing, sub-dividing or transferring the property, estimated to be worth Sh50 million, pending the determination of the case.
The Ethics and Anti-Corruption Commission (EACC) said the property was reserved for educational purposes, public use and assigned to Kitale School, but that it was irregularly and fraudulently hived off and allocated to Tum (now deceased), who was then the school’s Parents Teachers Association chairman.
The family has development rental houses, a petrol station, car wash, supermarket, a warehouse, among other income generating business activities on the land.
“Leave be and is hereby granted to the applicant (EACC) within one month from the date hereof, to appoint a receiver for the control and management of the developments, including rental houses, a petrol station, a car wash, a supermarket, a warehouse and any other development situated on the suit land, pending hearing and determination of the suit,” said Justice Nzili.
The judge directed the parties to open a joint interest earning account in the names EACC and Mr Kipchirchir, for purposes of collecting the rental income, from the developments.
“Looking at the totality of the pleadings, the supporting and replying affidavits, I think the applicant (EACC) has demonstrated an arguable case and a risk that if the suit land is not preserved, there is a likelihood of dissipation,” said the judge.
Mr Kipchirchir had opposed the case arguing that it was time-barred- having been filed 29 years after the land was allocated to Tum.
He further submitted that EACC had not demonstrated that it would suffer any loss, as there were no plans to sell the property or the investments.
Mr Kipchirchir said granting the order would be injurious to the estate as they have been occupying the land for the last 29 years. According to him, the anti-graft body was seeking to re-litigate on the same matters.
He also submitted that a similar case, seeking to recover the contested land was dismissed by the High Court in 2011 and the decision affirmed by the Court of Appeal.
The anti-graft body said the school occupied the land since 1929 and being the PTA chairman, Mr Tum allegedly volunteered to assist the school secure a title deed.
However, he allegedly took advantage of his position allocated the land to himself and established a petrol station, cafeteria, rental house and a supermarket.
EACC said investigations established that the land was irregularly hived off and allocated to the late Tum, in collusion with a former Commissioner of Lands, Mr Wilson Gachanja.
The land according to EACC, was designated for school expansion and public amenities as early as 1973.
The illegally hived-off portion of land had encroached significantly onto the school's infrastructure, such as the dining hall, dormitories, and sewer system.
The EACC said the department of survey demanded the surrender and correction of the lease certificate given to Mr Tum on September 26, 2007, in an effort to clean up the irregular allocation and make it seem lawful or less noticeable.
The commission said the goal was to remove the clearly encroached school infrastructure from the title.
However, only about 0.4 hectares were recovered, but left vital infrastructure, like the sewer system, still located inside the contested land.
