Ethics and Anti-Corruption Commission v Joseph Oroko Ongera & Another [2021] eKLR

Case Caption:

In the Environment and Land Court at Kisii; ELC No. 113 of 2008 (Formerly HCCC No. 113 of 2008); Ethics and Anti-Corruption Commission (Plaintiff) v Joseph Oroko Ongera & Sammy Silas Komen Mwaita (1st and 2nd Defendants respectively)

Case URL:

http://kenyalaw.org/caselaw/cases/view/224900/

Summary Significance:

The case outlines the procedure to be followed when alienating Government Land. Further, it buttresses the point that a fraudulently and illegally acquired title is void ab initio.

Applicable laws:

Sections 117 (1) of the repealed Constitution of Kenya
Sections 3, 7,11, 12 and 13 of the Government Land Act Cap 280; Laws of Kenya (Repealed)
Section 13 of the Trust Land Act
Section 144 of the Local Government Act (Repealed)
Section 41 (3) and 42 of the Physical Planning Act

Brief Facts:

The Plaintiff instituted the suit against the Defendants via a plaint dated 23rd September 2008 and later amended on 13th September 2009. The Plaintiff averred that the County Council of Gusii was vested with 215.85 acres of trust land under the Constitution, the Trust Land Act and Gazette Notice No. 1937 of 31/5/1996. Soon thereafter, the Council was registered as the proprietor of the parcel known as Kisii Municipality/Block 3/332 measuring approximately 5 hectares. Sometime between 1998 and 2000, the Commissioner for Lands (2nd Defendant) effected a subdivision and change of user of this property into 47 parcels numbered Kisii Municipality/Block 3/420-467. On 4th June 2002, the Council was registered as the proprietor of Land parcel number Kisii Municipality/Block 3/429 (the suit property) which was subsequently transferred to the 1st Defendant under a certificate of Lease. The Plaintiff avers that the subdivision, change of user and transfer of the suit land to the 1st Defendant was fraudulent and unlawful. Consequently, the Plaintiff sought orders inter alia, a declaration that the transfer and certificate of lease registered in favour of the 1st Defendant is void, that the Land Registrar, Kisii Land Registry amend the land register by cancelling the 1st Defendant’s interest in the suit land, for permanent injunction against the 1st Defendant from interfering with the suit land, for vacant possession over the suit property and that the 2nd Defendant pay damages for abuse of office. Defendants never entered appearance. The suit was therefore undefended.

Issues for Determination:

Whether Kisii Municipality/Block 3/429 constituted trust land allocated to the Council
Whether the Defendants acted fraudulently in alienation of the suit land
Whether the 1st Defendant had a good title to the Suit land
Whether the 2nd Defendant was liable for misuse of office
Whether the Plaintiff was entitled to costs

Holding:

The court held that the suit land was part of the trust land allocated to the Council. On the issue of the Defendants’ fraud, the court examined the process of allocation of Government land as set out in the case of Ali Mohamed Dagane Granted Power of Attorney by Abdullahi Muhumed Dagane, suing on behalf of the Estate of Mohamed Haji Dagane) v Hakar Abshir & 3 others [2021] eKLR. In this case, the court stated that the procedure involved seven steps: the trustee of the property advises the Commissioner for Lands on which property may be disposed, the part development plan be drawn up and approved by the Commissioner, determination of the matters listed under Section 11 of the Government Land Act (Repealed), gazettement of the plots to be sold at least four weeks before their auction date, sale of the plots by public auction, issuance of an allotment letter to the allotee and compliance with the conditions in the allotment letter by the allotee. The court held that this procedure was not followed as the land was not sold by auction, there was no evidence of an allotment letter to the 1st Defendant and there was no evidence of the 1st Defendant’s payment of any fee stipulated in the allotment letter among other things. In light of this, the Defendants were found to have acted fraudulently. On the issue of the Defendant’s title to the suit land, the court held that the title over the suit land was tainted with fraud and was therefore illegal and void ab initio. On the issue of the 2nd Defendant’s misfeasance of office, based on the Plaintiff’s evidence of the 2nd Defendant’s unlawful subdivision and change of user of Kisumu Municipality/Block 3/332 and transfer of the suit land, the court found that he was liable for misfeasance of office as he had breached his duties under the Repealed Constitution. Finally, the court found that the Plaintiff was entitled to the reliefs sought and was granted all its prayers. The 2nd Defendant was ordered to pay Kes. 1,000,000 as damages for misfeasance of office.

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