Anxiety mounts as repossession of grabbed public land gains steam

The Commission of Inquiry into irregular allocation of public land, otherwise known as the Ndung’u Land Report in its findings noted well-connected greedy individuals who illegally converted public land into private property.

The phenomenon, known as land grabbing, became part and parcel of official grand corruption through which land meant for public use (including land specifically reserved for public purposes) was acquired by individuals and corporations, the report said.

This practice was rampant in the late 1980s and 1990s and as noted in the report, procedural safeguards were blatantly disregarded in the allocations.

“Public land was allocated in total disregard of the public interest and in circumstances that fly in the face of the law,” the report noted.

Other than the grabbing of public land by individuals, there are instances where innocent Kenyans found themselves in trouble, having been allocated or purchased such property only to regret many years later.

Such a scenario played out in court recently, when a judge cancelled titles issued to individuals who claimed to have purchased some 103 houses in Woodley/Joseph Kang’ethe Estate.

Although the residents maintained that they were innocent purchasers, the court had no kind words for them — they should have been diligent. “An illegal and flawed process cannot give rise to a valid title,” Justice Samson Okongo said.

The residents, some of whom have resided in the houses for decades, have no option but to vacate.

Evidence presented to court by the Ethics and Anti-Corruption Commission (EACC) said the land was set aside for the City Council in 1948. It was 34.63 hectares. A grant was registered in favour of the defunct council in June 1998, but in April 1999, the houses had changed hands.

In 2007, the commission moved to court seeking the revocation of the sale. Woodley Residents Welfare Society opposed the cancellation, maintaining that they paid Sh1.1 million for each of the property.

The homeowners led by its chairman Paul Ngetha said they were tenants since 1971 and the council offered to sell them the houses and they gladly welcomed the offer.

He said the council then passed a resolution and obtained a ministerial authority before approving the sale.

The sale, he added, was made following President Daniel arap Moi’s directive that the houses at Kenyatta Market and Woodley estate, among others, to be sold to the sitting tenants in 1992.

But the commission said there was no council resolution authorising the sale of 103 houses and the minister did not sanction the sale. And that the process leading to the purported sale was flawed hence a nullity.

Former Local Government minister William ole Ntimama testified in the case saying the disposal of the houses required a resolution by full council meeting and later, his approval had to be sought. But in this case, no approval was sought.

The court heard that there was collusion and fraud as there was no evidence of payment as the receipts produced were contradictory as to when the payment was made and the manner of payment.

“There is no evidence before court showing that the commissioner of Lands consented to the subdivision of Woodley/Joseph Kangethe estate and the sale of the portions thereof including the suit property,” Justice Okongo ruled.

The judge said the events before and after the sale of the houses left no doubt that the Nairobi City Commission, which was then running the council and the chief officers of the council had hatched an elaborate scheme to dispose of the houses with minimal public scrutiny to achieve selfish aims.

There are also blatant cases where chief officers were accused of allocating land to themselves but EACC managed to recover them last week. Among them were five parcels of land in Mombasa which had been grabbed from Kenya Civil Aviation Authority (KCAA).

The property had been allocated to among others, Dalice Investments Limited- land worth Sh50 million, another parcel which had been allocated to Kipeno Investments Limited worth Sh58 million and a property allocated to Wince Investment Limited.

Another property was transferred to a company known as Lekyo Tours, which belonged to former Commissioner for Lands and later Baringo Central MP Sammy Mwaita.

Court documents showed that the land had been set aside by the government through the East African Community for the construction of houses for members of staff of the then Directorate of Civil Aviation. The houses were in Bamburu- Nyali estates.

The government later built four-bedroom bungalows with servant quarters. But in the year 2000, the property was transferred to Wince Investment Ltd. EACC said the grant was prepared and registered without consent and approval of the board of directors of civil aviation authority and ministries of Transport and Finance.

In the judgment, the court said Mr Mwaita ought to have known that the land was not available for allocation. The Judge said he purported to act in the name of the President but he ignored the provisions of the Government Lands Act, financial regulations and procedures and other provisions of the law.

Justice Sila Munyao said the allocation of the house in Bamburi to Lekyo Tours Ltd, a company where Mr Mwaita was a director, was irregular.

He ordered the Land Register to cancel the title and the house to be reverted to the government. "So that no member of the public is duped to deal with the suit land, I do order that the cancellation of the title to be advertised in the Kenya Gazette,” the judge said.

The EACC filed the case in April, 2014, arguing that the house in Bamburi belonged to the government, having been built in 1979 to house civil servants.

But in March, 1998, Mr Mwaita, then the Commissioner of Land, issued a letter of allotment to the company. The anti-graft body accused Mr Mwaita of conferring a benefit on himself because he was a director of the company.

Last year, a company associated with former President Daniel arap Moi and former minister Nicholas Biwott lost five parcels of land in Eldoret town. This was after the High Court ruled that they were public property.

The property houses the Eldoret High Court, children’s court as well as the Environment and Land Court, the county fire station, an Administration Police camp and the district hospital. The entire parcel had been allocated to Lima Limited.

“In a nutshell, the first defendant (Lima Ltd) un-procedurally obtained title to the properties in issue as the same had been alienated as public land with public utilities and not available for conversion to private land,” Justice Anthony Ombwayo ruled.

Justice Ombwayo added that the creation and registration of a charge over those parcels was null and void and that the registration of Lima Ltd as the lessee stand cancelled. The five parcels houses had the district hospital, Lands offices, Survey offices, the fire station and the AP camp.

The parcels were allocated to Lima Limited between 1995 and 1998.

The court heard that in a meeting of Board of Survey for government offices and house held in the DC’s office on September 7, 1995 and another held on January 11, 1996, all government and municipal houses on the land were earmarked for allocation.

And save for block 4/157 which was allocated to Lima Ltd, all other parcels were not available for alienation, EACC said. The Commission said the houses were to be sold to private developers not because they were old and beyond repair but because they were sitting on prime land and needed to pave the way for commercial development by private entities.

The allocation to private individuals, according to EACC, did not make sense and the logical conclusion is that the proposed allottees were powerful people who could have their way, the law and the status on the ground notwithstanding.

Memorandum and Articles of Association dated September 18, 1975, indicated that the company belonged to Robert Wilson and Daniel Toroitich arap Moi and the annual return for 1995, when the allotments were made, indicated that the directors were Kipyator Nicholas Kiprono Biwott and Gideon Kipsiele Moi.

While challenging the allocation, the commission said no presidential authority was sought and obtained before the land was given out.

The Uasin Gishu land registrar Mr Tom Chepkwesi had in October 2010 revoked the titles and Trans National Bank recorded consent in 2006 cancelling the registration of charges. The court heard that about August 21, 2002, Trans National Bank advanced a loan of Sh21 million to Lima Ltd and charged the titles as security.

Former Commissioner of Lands Wilson Gachanja, who has been named in the case, denied that the land was reserved for use as a fire station or as Administration Police Camp as alleged. Mr Gachanja defended the allocation, saying he acted within his powers as he stood to gain nothing from the transaction and as such the claims of fraud were misconceived.

According to Mr Gachanja, the land was not reserved or registered for public use and was therefore available for allocation to Lima.

Justice Ombwayo said Mr Gachanja had no authority in law to make the alienation because the land was in actual use by public bodies.