Moi-era allocations haunt former land bosses in suits to recover public property

Hundreds of acres of land belonging to the government and parastatals as well as houses allocated to individuals have been repossessed through court cases in the past one year.

Most of the houses were meant for civil servants or public use, but they were allocated to Moi-era power brokers in the 1990s.

In the said cases, the names of two former Commissioners of Land Wilson Gachanja and Sammy Mwaita, who succeeded him, have featured prominently.

The two former officials have been cited in scores of cases filed by Ethics and Anti-Corruption Commission (EACC), as the watchdog sought the repossession of the public land or houses.

When filing their counterarguments in the cases, they defended their actions saying the law allowed them to allocate land on behalf of the President.

Courts have, however, held that there was no evidence that the President authorised or was privy to the said alienation. And while cancelling such titles, courts have held that power to allocate land was never intended to be a vehicle for fraud and illegalities or an avenue for unjust enrichment at public expense.

Under section 3 of the repealed Government Land Act, the power to alienate unalienated government land was vested in the President. The Commissioner of Land only exercised limited delegated authority in special circumstances.

The law did not, however, define how the general or specific directions from the President were to be expressed, be it oral or in writing.

Section 7 of the Act stated that: “The Commissioner or an officer of the Land Department may, subject to any general or special directions from the President, execute or and on behalf of the President any conveyance, lease or licence of or for the occupation of government land, and do any act or thing, exercise any power and give any order or direction and sign or give any document, which may be done, exercised, given or signed by the President under this Act.”

In a recent decision, Environment and Land Court judge Benard Eboso ordered the revocation of the title of land issued to a former Director of Kenya School of Law for a house which had been reserved for the institution.

While ordering the return of the house near Nairobi Hospital to the government, the court placed the blame at the door of Mr Gachanja and the then Directorate of Survey.

And to show how Kanu operatives took advantage of their closeness to the party and the President Daniel arap Moi, the cronies would write to the Commissioner of Land, asking to be considered for a parcel of land they had already identified.

In one such case, Kenny Mohammed Sheikh Ali, a Kanu operative in the coastal town of Mombasa, applied in 1994 to Mr Gachanja through Kilifi District Commissioner to be allocated a property, which had been set aside for public use by the Kenya Revenue Authority (KRA).

The court heard that Mr Ali applied for the land because “he had done a lot for Kanu, but was yet to enjoy the fruits of Uhuru”. He was given a parcel of land in Mtwapa Creek, which had been reserved for Customs house.

A year later, Mr Ali ‘informally transferred’ the land to Francis Gathui Wahome, who thereafter transferred it to Frann Investment, which he co-owned with his wife and three sons.

“My view is that as long as land had, or has been, set aside by the government for a specific use, which is apparent from the pertinent records, including survey plans and/or PDPs, or visible on the ground, then that land must be considered to be part of “alienated government land,” Justice Sila Munyao said while quashing the title to the land.

The judge said the land in Mtwapa Creek had been set aside for Customs house and there is no indication that the KRA was approached so that they may say they no longer need the land and affirm that it can be allocated to a private individual.

Further, Mr Wahome then worked with KRA and ought to have known that the land was not available for alienation.

“My holding is that they cannot because firstly, they were not innocent purchasers for value, and secondly, the doctrine of an innocent purchaser for value cannot be used to sanitise a title that is null and void ab initio and neither can it breathe life into a null title,” the judge said.

Evidence was that Mr Wahome was employed by East African Customs & Excise Department as a preventive officer in 1964 and he was aware that the land was not available for alienation as it comprised a Customs house and a watchtower erected to guard against smugglers.

The commission said the original property was reserved, planned and used, as a customs outpost or watchtower and guardhouse, of the then Department of Customs.

Mr Gachanja defended himself, saying he acted within his powers as provided by the prevailing law and that in any event, it is the government which should have been sued, and not him, in his personal capacity.

But the Justice Munyao dismissed his defence and ordered him to pay Sh1 million to the government for damages, whereas Mr Wahome was given 30 days to move out of the land or risk being ejected.

In yet another case in Kisumu, Justice Anthony Ombwayo said Mr Gachanja and Mr Mwaita did not have the authority to alienate parcels of land set aside for Kenya Railways, to private individuals.

While revoking the titles, the judge said there was no authorisation by the President to alienate the parcels, either orally or in writing and the two former commissioners could not purport to pass any valid title to individuals, through the letters of allotment and leases produced in court as evidence.

In some of the parcels, the former commissioners allocated land to themselves or companies associated with them.

In one of the cases, Mr Mwaita was accused of allocating several houses in Mombasa’s Nyali Estate, to three companies one of which belonged to him.

The property, which had set aside by the government through the East African Community for the construction of houses for the then Directorate of Civil Aviation staff, was allocated to Dalice Investments Limited, Kipeno Investments Limited, Wince Investment Limited and Lekyo Tours, which belonged to Mr Mwaita.

While quashing the titles, Justice Munyao said Mr Mwaita ought to have known that the land was not available of 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.

In yet another example of abuse of authority, a personal assistant to Mr Gachanja was implicated in the signing of the allocation of more than 50 acres of land worth Sh5 billion in Industrial Area in Nairobi.

In the case, Jotham Kilimo admitted signing the letters on November 21, 1997, while he served as Mr Gachanja’s PA. When asked why he signed, the former official said he feared for his life hence could not defy his superiors’ orders.

But Justice Elijah Obaga ruled that the allocation of the land to Beacon Towers, Hillbrow Traders ltd, Brentwood Traders Pamba properties and Varun Industrial Credit Ltd, was illegal.

The land on Enterprise Road in Industrial Area belongs to Kenya Meteorological Department (KMD).

“It is, therefore, clear that the suit property was not available for alienation as at the time the defendants were allocated. The land had become alienated the moment it was reserved for KMD,” said Justice Obaga.

The land had been set aside for the department to be used for relaying vital weather safety information to seagoing vessels and aircraft.

The data exchange enabled Kenya to meet her obligation as a World Meteorological Organisation regional telecommunication hub.

The station ceased transmission about 20 years ago because of technology change, but there were plans to convert it into an air monitoring system, to check on air pollution in the city.

The land was, however, allocated to the five companies allegedly because it was available for dishing out.

“One cannot have over 50 acres in the occupation of government land and claim it was an innocent investor. The company conceded under cross-examination that the five companies are not trading,” the judge said.

“If this is not fraud, then I do not know what other fraud the plaintiff was expected to prove. On this score, I do find that the defendant did not acquire an absolute and indefeasible title.”