Win for taxpayers as irregularly acquired land reverts to state
Nine parents at Nyali School, owned by the Mombasa Parents Club, a members-only club, have sued The Nyali School management board, seeking to permanently restrain it from hiring a principal.
The Mombasa Environment and Land Court has cancelled title deeds issued fraudulently for three parcels of land where a government housing estate in Mombasa worth over Sh310 million stands.
Justice Sila Munyao also ruled that the land that is part of Hobley estate in the Buxton area revert to the government.
The case to recover the land was brought by the Ethics and Anti-Corruption Commission (EACC) against Victor Oceanic Viewers Ltd, Nova Holding Ltd and Kalliste Holdings.
Victor Oceanic Viewers was allocated the land before transferring two plots to Nova Holdings, which subsequently transferred the titles to Kalliste Holdings, the court noted.
Justice Munyao said that the properties consisted of a government estate that was in active use and that the allocation involved 56 housing units.
“There is no evidence of involvement of the requisite state department before the properties were purportedly allocated. It is apparent that the allocation was done in deep secrecy,” said Justice Munyao.
He added that the government did not appear to be aware that one of its employees, the commissioner of lands, had allocated the land.
“The person who sat as the commissioner of lands at the time, without the blessing of any state department and without following procedure, simply decided to give away part of a housing estate that had been developed by the government. This was an abuse of office on his part,” said the judge.
He also said that the act of allocating the land was not only irregular but unlawful and theft of public property and had to be set aside.
Justice Munyao also noted that a surveyor deliberately neglected to capture the fact that there are government houses on the land.
This, the judge said, was tailored to hide the fact that the properties fell within a government estate that was fully built.
“There is no … conclusion to reach other than the intention was to have Victor Oceanic Viewers Ltd get the land for a song and obtain unjust enrichment from a development that was put up using taxpayers' money,” said Justice Munyao.
He added: “That is how the first defendant (Victor Oceanic Viewers Ltd) ended up paying a paltry Sh858,810 for an estate that comprised a total of 56 built-up units valued at Sh310 million in 2012. That fraudulent allocation cannot be sanctioned.”
Justice Munyao also said that the properties were allocated to Victor Oceanic Ltd when it did not exist and thus the allocation was irregular.
“There is no evidence of who applied to be allotted the parcels of land and no explanation was given as to why an allotment letter was issued to a non-existent entity,” said Justice Munyao.
He added that apart from the irregular allocation, payment for the allotment was made outside the 30-day stipulated period in the allotment letter.
Justice Munyao also ruled that evidence from officials of the department of housing indicated that they were not consulted before the land was alienated and that the estate was being used to house civil servants, the purpose for which it was developed.
“It is therefore my finding that this land was not land that could be considered un-alienated government land. I am not persuaded that it was land that was available for allotment and allocation to private individuals,” said Justice Munyao.
The EACC had told the court the part development plan (PDP) that accompanied the allotment letters was a forgery and fraudulent and thus null and void.
For its part, Victor Oceanic Viewers told the court that it was the lawful proprietor of the properties and was within its rights to sell them to Nova Holdings and Kalliste.
