Kenya Anti-Corruption Commission v Charles Oyoo Kanyangi & 5 Others [2019] eKLR

Case Caption:

In the environment and Land Court at Kisumu; ELC Case No. 474 of 2015 (Formerly High Court Civil Case No. 34 0f 2008) Consolidated with ELC Case No. 276 of 2015 (Formerly High Court Civil Case No. 33 of 2008); Kenya Anti-Corruption Commission (Plaintiff) v Charles Oyoo Kanyangi, Aaish Vallabhdas Jethwa, Lalji Karsan Ramji Rabadia, Wilson Gachanja, Bank of Baroda Kenya Limited& Mayhood Limited (1st – 6th Defendants respectively)

Case URL:

http://kenyalaw.org/caselaw/cases/view/170317

Summary Significance:

The doctrine of sanctity of title does not protect any title acquired illegally or fraudulently.

Applicable laws:

Sections 3 and 11 (1) (j) of the Ethics and Anti-Corruption Commission Act
Sections 27 and 28 of the Land Act (Repealed)

Brief Facts:

The Plaintiff instituted a suit against the Defendants seeking remedies for what it alleged was the improper allocation of Government Land. The Plaintiff alleged that the land described as Survey Plan No. 29664-5 and F/r No. 32/319 of 1930 and described as Section XIV-Kisumu Township had been reserved for use by the Judiciary. That in 1975, the land parcel was designated Kisumu Municipality Block 8/22 with the Government of Kenya Registered as proprietor. The Judiciary remained in occupation of it and even constructed a court, a house and some open space was left for expansion. However, in 1994, the Commissioner of Lands (4th Defendant) excised part of the land to create Kisumu Block 8/458 (the suit land) and leased the same to Charles Oyoo (1st Defendant) for a 99-year term. The 1st Defendant then sold its interest to the 2nd Defendant (Aaish Vallabhdas Jethwa) despite the land being occupied by a functional court. The 2nd Defendant then proceeded to create a mortgage over the land in favour of the Bank of Baroda (5th Defendant) on which they defaulted, leading the 5th Defendant to threaten to exercise its statutory power of sale. The Plaintiff subsequently instituted a suit against the Defendants in HCCC No. 34 of 2008. Since the facts and orders in that case were substantially similar to the HCCC No. 33 of 2008, the suits were consolidated. The 1st Defendant (who was serving as a Magistrate for the Kisumu Law Courts at the time) denied having knowledge that the suit land was government land and averred that he had been tricked by two persons from the Kisumu Provincial Planning Committee to write the no objection letter in respect to the suit land which they informed him was vacant. The 2nd Defendant averred that he was an innocent purchaser having bought the suit land from the 1st Defendant for Kes. 1,500,000 and prayed that the Plaintiff’s suit be dismissed. The 3rd Defendant denied all allegations of fraud against him while the 4th Defendant denied all allegations of fraud or that he knew that Kisumu Municipality Block 8/22 was land reserved for the Judiciary.

Issues for Determination:

I. Whether the Plaintiff had locus standi to file the suit
II. Whether the suit land was part of the land reserved for use by the Judiciary
III. Whether the Defendants obtained good title to the suit land

Holding:

On the issue of locus, the court relied on Sections 3 and 11 (j) of the Ethics and Anti-Corruption Act and provided that the Sections mandated the Plaintiff to institute proceedings for the purpose of recovery and protection of public property. Therefore, it held that the Plaintiff had standing to institute the suit. On the issue of the suit land’s reservation for use by the Judiciary, the court in the affirmative and therefore the land was not available for allocation. On the issue of the Defendants’ title to the land, the court relied on the case of Chemey Investment Limited v. Attorney General & Others C.A Civil Appeal No. 349 of 2012 where the Court of Appeal held that “…sanctity of title was never intended or understood to be a vehicle for fraud and illegalities or an avenue for unjust enrichment at public expense.” As the suit land was not available for allocation to the 1st Defendant, the title he acquired did not bestow any legal interest in the suit land. It followed therefore that the 2nd and 3rd Defendants’ titles to the land were also void and not protected under Sections 27 and 28 of the repealed Land Act as they were obtained contrary to the law. Further, it held that the 5th Defendant could not get a good title to the suit land as a chargee because the chargor (3rd Defendant) had no registrable legal right in the land to put it up as security.

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