[2020] KEELC 884 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT KISUMU

E&L CASE NO. 872 OF 2015

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

VERSUS

VINCENT KIPKURUI TUWEI....................................................1ST DEFENDANT

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

JUDGMENT

1. Kenya Anti-Corruption Commission, the Plaintiff, filed this suit against Vincent Kipkurui Tuwei and Sammy Komen Mwaita, the 1st and 2nd Defendant’s respectively vide the Amended plaint dated the 22nd June, 2010 seeking for the following prayers;

“(a) A declaration that the issuance of a lease by the 2nd Defendant to the 1st Defendant over Kisumu Municipality/Block 7/520 was null and void ab initio and 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 over Kisumu Municipality/Block 7/520 to the 1st Defendant was null and void and ineffectual to confer a good title upon the 1st Defendant.

(bb) In the alternative to (a) and (b) above, a declaration that the 1st defendant holds registration of Kisumu Municipality/Block 7/520 in trust for the Corporation and that the land register be rectified by deleting the name of the 1st Defendant and substituting the name of Kenya Railways Corporation as the proprietor.

(c) An order for rectification of the land register by cancellation of the Lease over Kisumu Municipality/Block 7/520 and 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 himself, his agents, servants or assigns restraining them from leasing, transferring, charging, entering upon, developing, or in any other manner howsoever from dealing with Kisumu Municipality/Block 7/520.

(e) General damages for fraud.

(f) Costs of an incidental to the suit.

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

2. The Plaintiff avers that land parcel Kisumu Municipality/Block 7/520, the suit property, was at all material times part of a larger parcel surveyed in 1935 and assigned L. R. No. 1148/Section LV and set apart as railway reserve. That it was later vested with the General Manager of the default East African Railways and Harbours Administration vide Legal Notice No. 440 of 1963, thereafter later to East African Railways Corporation under Legal Notice No. 20 of 1969, and after the dissolution of the East African Community in 1977, it was vested with Kenya Railways Corporation, the Corporation, through Legal Notice No. 24 of 1986. That their investigation of 2001 disclosed that the 1st Defendant had wrongfully and unlawfully obtained allocation of, and registration with a lease over the suit property for private purposes from the 2nd Defendant illegally, fraudulently and in full knowledge that the land belonged to the Corporation. The Plaintiff has set out the particulars of fraud, illegality, and knowledge at paragraph 7, 8 and 10 of the Amended plaint. That the Plaintiff further avers that the 1st Defendant was holding registration of the suit land in trust for the Corporation. The Plaintiff has set out the particulars of constructive trust at paragraph 12A of the Amended plaint.

3. The 1st Defendant opposed the Plaintiff’s claim through the Amended statement of defence dated the 26th June, 2010. He avers that the suit is defective and an abuse of the process of the court. That he acquired the suit land legally, procedurally and is therefore not holding it in trust for the Corporation. He prays for the Plaintiff’s suit to be dismissed with costs.

4. The 2nd Defendant also opposed the Plaintiff’s claim through the statement of defence dated the 7th August, 2009 among others denying knowledge that the suit property had been set apart and vested in the Corporation. He further avers that the allocation of the suit property had been done through the Executive powers of the President and was processed procedurally. He prays for the Plaintiff’s suit to be dismissed with costs.

5. The Plaintiff called Dedan Ochieng Okwama, an investigator with the Plaintiff, Victor Wahome, a surveyor with Corporation, Joseph Kiragu Kariuki, a Land Administrator with National Land Commission and Hassan Moshoshi, a Government Surveyor, who testified as PW1 to PW4 respectively. That it is the Plaintiff’s case from the oral and documentary evidence adduced before the court that the suit property was part of the land surveyed in 1935, and set apart as railway reserve and in 1963 vested to the East African Railways and Harbours and currently with the Corporation. That as the suit property had not been surrendered for allocation to any other person by the time the 2nd Defendant allocated it to the 1st Defendant, that transaction was unlawful, fraudulent and unprocedural and the title held by the 1st Defendant is in trust for the Corporation.

6. The learned Counsel for the 1st Defendant participated, in the hearing of the Plaintiff’s case. That both Defendants did not call evidence or file written submissions. The learned Counsel for the Plaintiff filed their submissions dated the 9th August, 2019.

7. The following are the issues for the court’s determinations;

(a) Whether the suit property was part of the land set apart and vested in the Corporation.

(b) Whether the suit property was available for alienation when the 2nd Defendant allocated it to the 1st Defendant.

(c) Whether the transactions around the suit property by the Defendants was unlawful and fraudulent.

(d) Whether the Plaintiff suffered loss and damages and if so, to what extent?

(e) Who pays the costs?

8. The court has after carefully considering the pleadings, the oral and documentary evidence by PW1 to PW4 and the submissions by the learned Counsel for the Plaintiff come to the following determinations:

(a) That the documentary evidence in terms of the copies of title document for L. R. No. 1148/1184 [I.R. 23354] of 16th February 1970, register (white card) for Kisumu Municipality/Block 7/365, and survey map produced as exhibits and the testimonies of PW1 to PW4 confirms that the suit property was part of the land that was set apart in 1935 for railway reserve, and currently vested in the Corporation. That as there is no evidence adduced to rebut or challenge that adduced by the Plaintiff, the court finds that the suit property was at the time it was allocated by 2nd Defendant, then the Commissioner of Lands, to the 1st Defendant for private purposes, unavailable for alienation.

(b) That the claim by the defendants that the allocation was through the President’s Executive powers, and that it was procedurally done is a mere allegation as the Defendants failed to offer evidence in support of their averments.

(c) That the 2nd Defendant, as the Commissioner of Lands then, ought to have confirmed that the Corporation had surrendered the suit land in accordance with Section 14(4) and (5) of the Kenya Railways Act Chapter 397 of Laws of Kenya before allocating it to the 1st Defendant. That the 2nd Defendant ought to have known that the suit land having been part of the land vested with the Corporation, was already alienated and hence not available for allocation. [See theCourt of Appeal Eldoret, decision in Civil Appeal No. 288 of 2010 Kipsirgoi Investments Ltd Vs Kenya Anti-Corruption Commissionatpages 26 and 27].

(d) That further to the finding in (b) above, that the Defendants did not call evidence in support of the averments in their statements of defence, the provision of Section 3 of Government Land Act Chapter 280 of Laws of Kenya on the power delegated to the Commissioner of Land to alienate land is clearly limited to educational, charitable, sports and other purposes set at the foot of page 8 of the Act. That none of the said purposes were available to the 2nd Defendant to alienate the suit land to the 1st Defendant. [See James Joram Nyaga & Another Vs the Hon. Attorney General & Another [2007] eKLR on the limited delegated powers of the Commissioner of Lands].

(e) That as the suit land was not available for alienation, and the 2nd Defendant was without powers to allocate it, the title given to the 1st Defendant was unlawfully obtained in terms of Section 40(6) of the Constitution and therefore not protected under Section 26 of LandRegistration Act No. 3 of 2012. [See Republic Vs District Land Registrar, Mombasa & 5 Others Exparte Super Nova Properties Ltd [2016] eKLR, Milankumarn Shah & Two Others Vs City Council of Nairobi & Others, Nairobi Hccc No. 1024 of 2005 [unreported] and Paul Nderitu Ndungu & 20 Others Vs PashitoHoldings Limited & Another Nairobi Hccc No. 3063 of 1996].

(f) That the Plaintiff failed to adduce any evidence to guide the court in determining what loss and damages they suffered as a result of the transactions over the suit property by the Defendants. That though the Defendants did not offer any evidence, the Plaintiff failed to discharge their legal obligation under Section 107 of the Evidence Act Chapter 80 of Laws of Kenya and no damages are allowed.

(g) The Plaintiff having substantially succeeded in their claim against both Defendants is entitled to costs in accordance with Section 27 of the Civil Procedure Act Chapter 21 of Laws of Kenya.

9. That flowing from the foregoing, the court finds the Plaintiff has proved its case against the Defendants and enters judgment for it in terms of prayers (a), (b), (bb), (c), (d) and (f) of the Amended plaint dated the 22nd June, 2010.

Orders accordingly.

Dated and signed at Eldoret this 3rd day of February, 2020.

S. M. KIBUNJA

JUDGE

Delivered and signed this 6th day of March, 2020.

A. OMBWAYO

JUDGE

Judgment read in open court in the presence of:

M/s Omweri for Plaintiff.

M/s Onsongo for Defendant.

Court Assistant: Joanne