Kenya Anti-Corruption Commission -vs- Lima Limited & 2 others [2019] eKLR
Case Caption:
In the Environment and Land Court of Kenya at Eldoret; ELC No. 46 of 2017 (Formerly Nairobi HCCC No. 882 of 2006); Kenya Anti-Corruption Commission (Plaintiff) v Lima Limited, Wilson Gachanja & Trans-National Bank Limited (1st, 2nd & 3rd Defendants respectively)
Authority to alienate government land vests only with the president save for special circumstances. An illegally acquired title confers no rights over property.
Applicable laws:
Section 3 of the Government Land Act Cap 280; Laws of Kenya (Repealed)
Brief Facts:
The Plaintiff approached the court seeking orders that the leases granted over Eldoret Municipality Block 4/129, 4/52, 4/53, 4/54 and 4/55 (the suit properties) in favour of the 1st Defendant be cancelled. Further, the Plaintiff also sought the cancellation of the charges registered in favour of the 3rd Defendant over those properties and an injunction against the 1st and 3rd Defendants restraining them from dealing with the suit properties in any way.
The suit properties comprised government land reserved for use by the Eldoret Municipal Council for use in the construction of a fire station. However, the 2nd Defendant, who was serving as the Commissioner for Lands at the time, issued a lease in favour of the 1st Defendant without authority. The 1st Defendant subsequently charged the suit properties in favour of the 3rd Defendant for Kes. 21,000,000.
The 1st Defendant averred that the suit properties were transferred legally for various sums as per the letters of allotment. The 2nd Defendant averred that the suit properties comprised unalienated Government land and that the same was allocated procedurally as per the Government Land Act. He denied any allegations of fraud and illegality in the allocation of the suit properties.
Issues for Determination:
I. Whether the suit properties comprised government land reserved for public utility
II. Whether the 2nd Defendant validly alienated the suit properties to the 1st Defendant
Holding:
On the issue of whether the suit properties comprised government land, the court found that the assertion by the 2nd Defendant that the properties comprised unalienated land was unfounded. This is because the land had been set aside for public use and were already developed with a High Court station, a district hospital, a fire station and an administration police camp. Therefore, the court held that the land formed part government land reserved for public utility.
On the issue of the legality of the allotment by the 2nd Defendant, the court relied on Section 3 of the Government Land Act which provided that only the President had power to alienate Government land. Further, it noted that the Presidential powers of allotment were delegated to the Commissioner for Lands in special circumstances only. These circumstances contemplated the allotment of the land for educational, charitable, religious and sports purposes. In light of this, the court held that the 2nd Defendant had no authority to alienate the land hence no interest passed to the 1st Defendant.
The court therefore granted orders that the leases over the suit properties be cancelled as they were void ab initio. Further, it ordered that the charges over the suit properties be discharged.
