[2019] KEELC 2708 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT

AT KISUMU

ELC. NO. 731 OF 2015

KENYA ANTI-CORRUPTION COMMISSION...............................................PLAINTIFF

VERSUS

PETER OKONGO OYOO.......................................................................1ST DEFENDANT

SAMMY KOMEN MWAITA...................................................................2ND DEFENDANT

JUDGEMENT

1. Kenya Anti-Corruption Commission, the plaintiff, commenced these proceedings through the Plaint dated the 22nd June, 2009 and filed on the 24th June, 2009 against Peter Okongo Oyoo and Sammy Komen Mwaita, the Defendants, seeking for the following prayers:-

(a) “Declaration that the issuance of a Lease by the 2nd Defendant to the 1st Defendant overKisumu Municipality/Block 7/542was null and voidab initioand ineffectual to confer any right, interest or title upon the 1st Defendant in the first instance.

(b) A declaration that the registration of the Lease and issuance of a Certificate of Lease overKisumu Municipality/Block 7/542to the 1st Defendant was null and void and ineffectual to confer a good title upon the 1st Defendant.

(c) An order for rectification of the land register by cancellation of the Lease overKisumu Municipality/Block 7/542and Certificate of Lease issued to the 1st Defendant so as to restore the suit property to the corporation.

(d) An order for a permanent injunction against the 1st Defendant by itself, its agents, servants or assigns restraining them from leasing, transferring, charging, entering upon, developing, or in any other manner howsoever from dealing withKisumu Municipality/Block 7/542.

(e) General damages for fraud.

(f) Costs of and incidental to the suit.

(g) Any other or further relief the Court may deem fit and just to grant.”

The Plaintiff avers that Kisumu Municipality /Block 7/542, the suit property, measuring 0. 0345 hectares was at all material times part of a larger parcel of land initially vested in the General Manager of the Defunct East African Railways & Harbours Administration vide Legal Notice No. 440 of 1963. That the land was later surveyed in or about 1968 vide folio Register No. 109/43 and registered with East African Railways Corporation under Registration of Titles Act Chapter 281 of Laws of Kenya as L.R No. 1148/1184. That the registration was later converted to the Registered Land Act Chapter 300 of Laws of Kenya in or about 1975 and registered as Kisumu Municipality/Block 7/365. That following the dissolution of the East African Community in 1977, the land as well as other assets of East African Railways Corporation, were vested in Kenya Railways Corporation vide the Legal Notice No. 24 of 1986. That after the investigation carried by the plaintiff, it was found out that the 1st defendant had wrongfully and fraudulently procured from the 2nd Defendant a lease over the suit property for private purposes which was registered on the 11th August, 2000 without the consent or knowledge of the Corporation and hence this suit. The Plaintiff has set out the particulars of fraud and illegality attributed to the Defendants at paragraphs 8 and 9 of the Plaint.

2. The 2nd Defendant entered appearance through M/s J. K. Bosek & Company Advocates vide the Memo dated the 22nd July, 2009. That they filed the undated and unsigned statement of defence on the 12th August, 2009, disputing the Plaintiff’s averments among others stating that if a certificate of lease was issued, which is denied, then the said leasehold interest was granted by virtue of the Executive powers of the President, and by the President and the suit property was therefore validly alienated and processed. That the suit property is bad in law, unconstitutional, statutory time barred, null and void. That further, the plaintiff purports through this suit to challenge the functions of the President and to usurp the role and functions of other government institutions.

3. The Plaintiff replied to the 2nd Defendant’s defence through their reply dated the 21st August, 2009, reiterating that the 2nd Defendant had acted in excess of his statutory powers and his actions were ultra vires the Government Lands Act Chapter 280 of Laws of Kenya. That the President had not played any role in the alienation of the suit property, and alternatively that the President cannot legally alienate properties vested in Public Corporations.

4. The Plaintiff applied vide the Chamber Summons dated the 7th July, 2009 for temporary injunction against the 1st Defendant and for leave to serve the Defendants through substituted service. The application was heard on the 24th July 2009 and prayer (3) for leave to serve through advertisement granted. The service through advertisement was carried out and affidavit of service sworn by Joel Samoei on the 21st July, 2009 filed. The 1st Defendant has not todate entered appearance or filed statement of defence.

5. The hearing commenced on the 5th April 2017 when Victor Kariuki Wahome, a surveyor with Kenya Railways Corporation testified as PW 1. Then Hassan Masasi, a Land Surveyor with the Ministry of Lands, and Joseph Kiragu Kariuki, a Land Administration Officer with the National Land Commission, testified as PW 2 and PW 3 respectively on the 11th October, 2018. That upon closing the plaintiff’s case, their counsel moved to court to close the 2nd Defendant’s case and the request was granted. The learned Counsel for the plaintiff then filed their written submissions dated the 14th November, 2018.

6. The following are the issues for the court’s determinations:-

a) Whether the suit land was part of the land vested in the Kenya Railways Corporation.

b) Whether the alienation of the suit property by the 2nd Defendant to the 1st Defendant was lawfully and procedurally done.

c) Who pays the Costs of the suit.

7. The court has carefully considered the pleadings filed, the oral and documentary evidence tendered by the plaintiff, the plaintiff’s counsel’s submissions and the decided cases cited therein, and came to the following determination;

(a) That the Plaintiff’s averment in their pleadings that the suit property was part of the land initially vested to the East African Railways & Harbours Administration, that was later vested to East African Railways Corporation, as L.R No. 1148/1184 and later converted to Kisumu Municipality/Block 7/365, and currently vested in Kenya Railways Corporation has been proved through the testimonies tendered by PW 1 to PW 3. That the testimonies offered by the plaintiff has not been challenged and or controverted as none of the defendants tendered any evidence or attended court to cross-examine the witnesses.

(b) That the evidence presented by PW1 confirms that Kenya Railways corporation, in whom the land from which the suit property was subdivided from, was not involved in the transaction leading to the alienation of the land and registering the lease in the name of the 1st Defendant. The witnesses told the court that the Kenya Railways Corporation only get to know about it later and following their Petition to the Commissioner of Land, the title to the suit property, and other portions that had been similarly created, were cancelled and after a resurvey and consolidation, registered as Kisumu Municipality/Block 7/567 measuring 72. 38 hectares with the corporation. The testimonies of PW 2 and PW 3 confirmed that of PW 1 and again that evidence remains un-rebutted or controverted.

(c)That though the 2nd Defendant had filed the unsigned and undated statement of defence, he did not participate in the proceedings and therefore did not call any evidence to support the averments in the defence. That those averments remain just mere allegations and the situation is made worse as the said statement of defence is not signed by the 2nd Defendant or his counsel. The said statement of defence as a response to the averments in the plaint, is therefore without any probable value. That the court finds for the plaintiff that the suit land, having been vested in the Kenya Railways Corporation for residential purposes was already alienated, and not available for the 2nd Defendant to allocated it to the 1st Defendant. [See Kipsirgoi Investment Ltd –Vs- Kenya Anti-Corruption Commission, Eldoret C. A. C. A No. 288 of 2010].

(d)That the act of the 2nd Defendant, who was then the Commissioner of Lands, to allocate the suit land to the 1st Defendant, while he know or ought to have known the land was already alienated through the vesting to Kenya Railways Corporation was illegal, unprocedural and irregular, as the consent and authority of the Kenya Railways Corporation had not been obtained. That the said act of the 2nd Defendant having been an illegality could not bind the office of that he held then, as it was a nullity. [See Kenya Anti-Corruption Commission – Vs – Sammy Silas Komen Mwaita & Another Nakuru H.C.C.C No. 43 of 2008].

(e) That the 1st Defendant did not enter appearance, file defence or participate in the proceedings herein. That the court therefore takes the failure by the 1st Defendant to enter appearance, file defence or participate in the proceedings to mean he did not wish to contest the plaintiff’s claim over the suit land, despite holding a lease and certificate of lease in his name. That the court therefore finds and holds like in the case of Kenya Anti-Corruption Commission –Vs- Online Enterprises Ltd & 4 Others [2019] eKLR, that the issuance of the lease by the 2nd Defendant over the suit property was null and voidab initio,and ineffectual to confer any right, interest or title upon the 1st Defendant who is the leasehold holder.

(f) That on the issue of damages the court has noted that no evidence was tendered by the plaintiff in support of that prayer that would guide the court in determining whether to award it, and how much to award. That further, there was no evidence availed to show whether the defendants have already been charged and convicted with any crime or offence related to corruption and or fraud. That the prayer for general damages not having been established will not be granted. [See in Registered Trustees of the Sisters of Mercy (Kenya) T/A ‘Mater Misericordiae Hospital’ –Vs- John Muriithi & 2 Others [2019] eKLR].

(g) That as the Plaintiff has emerged victorious in most of the prayers, and considering the provision of Section 27 of the Civil Procedure Act, Chapter 21 of Laws of Kenya that costs follow the events, the Defendants will meet the costs of the suit.

8. That flowing from the foregoing the court enters judgement for the Plaintiff against the Defendants in terms of prayers (a), (b), (c), (d) and (f) of the Plaint dated 22nd June, 2009.

Order accordingly.

S. M. KIBUNJA

ENVIRONMENT & LAND - JUDGE

DATED AND DELIVERED THIS 3RDDAY OF JULY, 2019.

In presence of;

Plaintiff Absent

Defendants Absent

Counsel Mr. Robert Bii for Grace Omueni for

Plaintiff

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE