Kenya Anti-Corruption Commission vs Sammy Silas Komen Mwaita and Hillary Kipkoriri Mwaita (Unreported)

On the issue of whether the suit land was public land, the court relied on the uncontroverted evidence adduced by the Plaintiff’s witnesses. From it, the court stated that it gathered that the suit lands were initially designated as LR 451/1054 and LR 451/1055. It further stated that the suit land was re-designated under Block 13 and became blocks 245 and 246 after the Registered Land Act came into force. The court added that the evidence showed that they were reserved for use by the Survey Department via a letter written by the Commissioner for Lands and dated 27/4/1963 following an application by the Director of Survey. In light of this, it held that the suit land was public land. On whether the suit land was validly alienated, the court cited Sections 27 and 28 of the Registered Land Act (RLA) which provided for the sanctity of title. It also cited Section 143 of the RLA which provided that a first registration could be challenged on the grounds of fraud. The Plaintiff had alleged that the allotment letters had been backdated to make it seem as if the 2nd Defendant had been allocated the lands prior to his brother, the 1st Defendant, assuming office as the Commissioner for Lands. The 2nd Defendant had adduced allotment letters signed on 4/3/1999 by a Mr. M. Mwakama who was the Commissioner for Lands at the time while the 2nd Defendant assumed office as the Commissioner for Lands on 2/12/1999. However, the Plaintiff adduced evidence in the form of a letter dated 6/12/2001 in which Mr. Mwakama inquired as to whether plot number 451/1054 had been converted into RLA and in which he requested the new number. Based on this evidence, the court concluded that it made no sense that the person who purportedly signed the allotment letters would be inquiring as to whether the same had been converted into RLA. The court therefore agreed with the Plaintiff that there was a high likelihood that the Defendants tampered with the records. The court also cited Sections 11 and 12 of the Government Lands Act (GLA) which respectively provided that the Commissioner had to conduct a valuation before alienating government land and that leases of town plots were to be granted by public auction. It stated that there was no evidence of a valuation nor a public auction as required under the GLA. Additionally, it cited Sections 3, 7 and 36 of the GLA which vested the power to allocate unalienated government land in the President and provided that the Commissioner for Lands required the President’s approval before granting any applications for leases over Government land. There was also no evidence that the President had instructed the alienation of the suit land. Additionally, the suit land had already been allocated to the survey department. Thus, it was no longer unalienated land under Section 3 of the Government Land Act and Section 3 of the Physical Planning Act Cap 283. Therefore, the land was not available for alienation. Finally, the court considered whether the 2nd Defendant complied with the terms in the letter of allotment. Per the letter, the 2nd Defendant was required to make payments within 30 days of the allotment. However, he only remitted the required payments one year after allotment, in clear breach of the letter’s terms. The court cited Joseph Arap Ng’ok v Justice Maijo ole Kiwa NRB CA 60/1997 where the court held that title to public property only came into existence after issuance of a letter of allotment and meeting the conditions stated in such a letter. Seeing as the 2nd Defendant breached the conditions in the letter, the court held that he acquired no title to the suit land. In light of these provisions and case law, the court held that the alienation of the land to the 2nd Defendant offended the law and was void ab initio. On whether the 1st Defendant was rightly sued, the court cited Sections 6 and 7 of the Anti-Corruption and Economic Crimes Act and held that the Plaintiff had powers to institute the suit. Hence, the Defendants were rightly sued.