Ethics and Anti-Corruption Commission vs Major General Dedan Njuguna Gichuru and Wilson Gachanja (2019) (unreported)

On whether the suit property was Government land, the court found that only unalienated government land was available for allocation. It also found that unalienated Government land was land which had not been allocated or leased out to any entity and which had not been reserved for any purpose. In the present case, the court held that the land in question had already been allocated to Lands Limited who further granted it to the Ministry of Agriculture for use in livestock and Potato seed development. The suit land therefore formed part of public land. On the issue of the lawfulness of the allocation to the 1st Defendant, the court cited Sections 3 and 7 of the GLA which vested the powers to allocate unalienated Government Land on the President only. The Commissioner could only allocate land on their own accord for the special purposes of religion, education, sports and agriculture. The court was also guided by the holding in Henry Muthee Kathurima v Commissioner of Lands and another where the court, in determining the extent of the powers of the Commissioner for Lands in relation to allocation of public land, held that “a public authority may not vary the scope of its statutory powers and duties…” In the circumstances of this case, however, the land was already alienated. Therefore, neither the 2nd Defendant nor the President had authority to allocate it to the 1st Defendant. The court held that the allocation was unlawful. On whether the 1st Defendant acquired any legal title to the suit land, the court relied on the case of Mbau saw Mills Limited v AG & 2 others [2014] eKLR. In this case, the court held that an allotee was required to comply timeously with the conditions set out in the allotment letter. In this case, the period set out for compliance had already expired by the time the 1st Defendant paid the sum stipulated in the letter. In light of this, the court stated that the transactions following the 1st Defendant’s payment of the sum were carried out in a vacuum as the offer had already lapsed. Further, the court stated that the issuance of the letter, the excision of the suit land and the issuance of the grant were all void. Therefore, the court held that the 1st Defendant did not acquire any legal title to the land. On the issue of the reliefs to be granted, the court stated that the Plaintiff had not proved fraud and was therefore not entitled to damages. The court however granted the other prayers it sought.