Kenya Anti-Corruption Commission v Peter Okongo Oyoo & Sammy Komen [2019] eKLR

Case Caption:

In the Environment and Land Court at Kisumu;

Case URL:

http://kenyalaw.org/caselaw/cases/view/177032

Summary Significance:

An illegally acquired title is void ab initio

Applicable laws:

Section 3 of the Government Lands Act Chapter 280; Laws of Kenya (Repealed)

Brief Facts:

The Plaintiff filed this suit seeking orders for cancellation of the Lease over Kisumu Municipality/Block 7/542 and Certificate of Lease issued to the 1st Defendant so as to restore the suit property to the Kenya Railways Corporation. The suit property, measuring 0.0345 hectares was 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. 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. 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. The Plaintiff’s investigations established 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.

Issues for Determination:

I. Whether the suit land vested in the Kenya Railways Corporation.
II. Whether the leasing of the suit property by the 2nd Defendant to the 1st Defendant was lawful and procedural.

Holding:

The court found that subject property had been vested in the Kenya Railways Corporation for residential purposes was already alienated, and not available for allocation by the 1st Defendant to the 2nd Defendant. Further, the act of the 2nd Defendant, who was then the Commissioner of Lands, to allocate the suit land to the 1st Defendant, knowing that 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 he held then, as it was a nullity. In the circumstances, the court held in favour of the Plaintiff and granted prayers sought.

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