Kenya Anti-Corruption Commission v Vincent Kipkurui Tuwei & Sammy Komen Mwaita [2020] eKLR

Case Caption:

In the Environment and Land Court of Kenya at Kisumu; ELC No. 901 of 2015; Kenya Anti-Corruption Commission v Vincent Kipkurui Tuwei & Sammy Komen Mwaita

Case URL:

http://kenyalaw.org/caselaw/cases/view/202610

Summary Significance:

A fraudulently acquired title is not protected under Article 40 of the Constitution of Kenya and the Land Registration Act.

Applicable laws:

Section 3 Government Lands Act (repealed)
Section 14(4) and (5) of the Kenya Railways Act Chapter 397 of Laws of Kenya
Article 40(6) of the Constitution
Section 26 of Land Registration Act No. 3 of 2012

Brief Facts:

The Plaintiff (Kenya Anti-Corruption Commission) filed this suit against the Defendants for orders of cancellation of the leases over Kisumu Municipality/Block 7/520 issued to the 1st Defendant by the 2nd Defendant, for general damages and costs of the suit. The Plaintiff’s case was that land parcel Kisumu Municipality/Block 7/520, the suit land was at all material times part of a larger parcel surveyed in 1935 and assigned to L R No. 1148/Section LV and set apart as railway reserve. That it was later transferred to East African Railways Corporation under Legal Notice No. 20 of 1969 and was later vested in Kenya Railways Corporation. That the 1st Defendant had wrongfully and unlawfully obtained allocation of, and registration of a lease over the suit property for private purposes from the 2nd Defendant illegally, fraudulently and in full knowledge that the land belonged to the Corporation or in the alternative that the 1st Defendant was holding the suit land in trust for the Corporation. The Defendants denied the allegations of illegal allocation and acquisition of the suit property and knowledge of the alienation of the land and averred that the allocation was done through the executive powers of the President and therefore the issue of constructive trust did not arise.

Issues for Determination:

I.Whether the suit property was part of the land set apart and vested in the Corporation
II.Whether the suit property was available for alienation when the 2nd Defendant allocated it to the 1st Defendant
III.Whether the transaction around the suit property by the Defendants was unlawfully and fraudulent
IV.Whether the Plaintiff suffered loss and damages and if so, to what extent

Holding:

Court held that the Plaintiff had proved that the land was set aside and alienated for the Kenya Railways Corporation and was therefore not available for allocation. The court further held that the Commissioner of Lands then, ought to have confirmed that the Corporation had surrendered the suit land in accordance with Section 14(4) and (5) of the Kenya Railways Act Chapter 397 of Laws of Kenya before allocating it to the 1st Defendant. In addition, the provisions of Section 3 of Government Lands Act Chapter 280 of Laws of Kenya on the power delegated to the Commissioner of Land to alienate land is clearly limited to educational, charitable, sports and other purposes set at the foot of page 8 of the Act. That none of the said purposes were available to the 2nd Defendant to alienate the suit land to the 1st Defendant. Consequently, the court found that as the suit land was not available for alienation, and the 2nd Defendant was without powers to allocate it, the title given to the 1st Defendant was unlawfully obtained in terms of Section 40(6) of the Constitution and therefore not protected under Section 26 of Land Registration Act No. 3 of 2012.

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