Ex-PS Kipkulei gets reprieve in land case 

A former Permanent Secretary (PS) can breathe a sigh of relief after a company lost an appeal challenging a High Court decision on a contested piece of land.

Court of Appeal judges declared that Mr Benjamin Kipkurui Kipkulei’s right to protection of his property in the upmarket Nyali area had been violated.  Mr Kipkulei served as PS during President Daniel arap Moi's regime.

Judges Alnashir Visram, Wanjiru Karanja and Martha Koome sitting in Mombasa, said the appeal by Musk Deer Ltd lacked merit.

PROPRIETARY RIGHTS

The court heard that Mr Kipkulei was the registered owner of the parcel of land until June 16, 2007 when a group of people went to the premises and forcefully evicted his agent.

The group, the court was told, asserted that they were acting for Musk Deer Ltd who had acquired proprietary rights pursuant to court orders issued by a magistrate.

It later emerged that Mr Kipkulei’s name had been removed from the Lands Registry as the owner of the said land.

PUBLIC AUCTION

The three judge bench noted that it was clear from the records that Mr Kipkulei was not served with court documents and a far reaching judgment that ordered his property be sold in a public auction was made.

“What more was required to support this illegality when an advocate who conducted the proceedings and sale by public auction admits that the judgment that gave rise to the sale cannot lawfully stand?” the judges posed.

“Even if the appellant was an innocent purchaser, which we think it was not, the decree having been a nullity, all consequent steps that were taken pursuant thereto were also a nullity in law,” said the three judges.

FRAUDELENT CARTELS

The judges said there was nothing in terms of title transfer to Musk Deer Ltd because a sale which was void cannot entitle the purchaser a proprietorship. According to the judges, the party that initiated the whole saga fizzled out in thin air and it remains a mystery who was paid the purchase price.

“The appellant (Musk Deer Ltd) may have fallen prey to fraudulent cartels that capitalise on depriving innocent Kenyans of their parcels of land,” ruled the judges.

In its appeal, Musk Deer Ltd argued that a High Court judge erred in law by dwelling on issues not pleaded.

OPEN BIAS

The company further argued that the trial judge exhibited open bias against it by taking into consideration irrelevant matters.

The High Court had also ordered the Land Registrar, Mombasa County, to rectify his records in the register to reflect the name of Mr Kipkulei as the proprietor of the property in terms of the original title deed issued to him on February 18, 1991.

Mr Kipkulei, who had sued the county government as the respondent at the High Court, argued that there were evident and concerted efforts to deprive him of the property wrongfully and unlawfully in contravention of his constitutional rights.