Kenya Anti-Corruption Commission v Oburu Odinga & another [2019] eKLR

Case Caption:

In the Environment and Land Court at Kisumu; ELC Case No. 423 of 2015 (Formerly HCCC No. 29 of 2010); Kenya Anti-Corruption Commission (Plaintiff) v Dr. Oburu Odinga & Sammy Komen Mwaita (1st and 2nd Defendants respectively)

Case URL:

http://kenyalaw.org/caselaw/cases/view/179789

Summary Significance:

An illegally acquired title is void ab initio.

Applicable laws:

Article 40 of the Constitution of Kenya, 2010
Section 3 of the Government Land Act Cap 280; Laws of Kenya (Repealed)
Section 26 of the Land Registration Act No. 3 of 2012

Brief Facts:

The Plaintiff conducted an investigation which revealed that the 1st Defendant had fraudulently procured the title to Kisumu Municipality/Block 7/509 (the suit land) from the 2nd Defendant. The subject land was part of a railway reserve vested with the Kenya Railways Corporation (the Corporation) under Legal Notice No. 24 of 1986. It alleged that the transaction between the 1st and 2nd Defendant was rooted in fraud and sought orders from the court declaring the transaction void. Further, it sought an order for the rectification of the land register by cancellation of the 1st Defendantā€™s interest over the suit property.

Issues for Determination:

I. Whether the suit land constituted part of a railway reserve
II. Whether the Plaintiff is entitled to damages for fraud.
III. Whether the Plaintiff has proved its case on a balance of probability and which relief if any, should be granted.
IV. Who pays the costs of the suit?

Holding:

The court held that based on the survey records map dated 24th August 1935, Kisumu Kisumu Township, Kisumu Municipality/Block 7 Map, capturing among others parcel 509, L. N. Nos 440, 20 and 24 of 12th July 1963, 13th May 1969 and 22nd February 1986 respectively among others, whose contents were uncontroverted, it was evident that the suit land had been set aside for use as a railway reserve. Further, evidence had shown that the Kenya Railways Corporation had not released the land. Therefore, it was unavailable for allocation. The court added that no evidence was tendered to prove the Defendantsā€™ assertion that the suit land was allocated pursuant to the Presidentā€™s executive power under the Government Lands Act. In light of this, the lease over the suit land by the 2nd Defendant to the 1st Defendant was beyond the legal and official powers of the 2nd Defendant, and therefore void ab initio and unprotected under Article 40 of the Constitution of Kenya as well as Section 26 of the Land Registration Act. The court granted the orders sought by the Plaintiff save for the order for damages as the Plaintiff hand not proved fraud.

Case Download:

Download Case File

Share this page: