Kenya Anti-Corruption Commission -vs- Paul Moses Ngetha; Sam N. Gachogo (Chairman) & 2 Others (Interested Parties) [2020] eKLR

On the competence of the Plaintiff’s suit, the court cited Boniface Katana Kalaveri v Ethics & Anti-Corruption Commission & Another [2015] eKLR and held that the Plaintiff had locus to institute the suit under Section 7 (h) of the ACECA and Section 11 (1) (k) of the Ethics and Anti-Corruption Commission Act which granted it power to institute legal proceedings against any person for the recovery of public property or compensation for any loss or damage to the said property. On the legality of the Defendant’s acquisition of the suit land, the court held that the Council breached statutory provisions. It had not obtained consent to lease the land under Section 144 (3) of the Local Government Act, it had breached the procedure under Sections 12 and 13 of the Government Land Act dictating that town plots be sold by public auction and it had not obtained a letter of allotment under Section 3 of the Government Lands Act. Based on this, the court held that the Defendant did not acquire the title legally. On whether the Defendant had a valid title to the land, the court cited Daudi Kiptugen v Commissioner of Lands & 4 Others [2015] eKLR where the court stated that: “…the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title. If this were not the position then all one would need to do is to manufacture a Lease or a Certificate of title at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein.” As the Council had breached several statutory provisions while allocating the land, the Defendant’s title was a nullity. On the Plaintiff’s entitlement to the reliefs sought, the court held that it was entitled to all reliefs save for an injunction, vacant possession they would have prejudiced the Defendant who was always the Council’s tenant before the lease. Instead, the Defendant would remain a tenant of the Nairobi City County, the successor to the Council. General damages were also denied as the Plaintiff had not sufficiently proved them. Each party would bear its costs.