Past deals haunt ex-land bosses into retirement
Mr Wilson Gachanja and Mr Sammy Mwaita, who served as commissioners of lands at different times, are not having peaceful retirement given the numerous land cases that have come to haunt them.
A testament to their troubled retirements is the long list of cases the Ethics and Anti-Corruption Commission (EACC) has brought against them for their involvement in facilitating the illegitimate acquisition of public land, predominantly on the Coast. The numerous lawsuits filed against the two, as well as other people and companies that allegedly benefitted from their alleged actions, demonstrate how Mr Gachanja and Mr Mwaita stumbled from one scandal to another by approving illegal land division in Mombasa and Kwale counties.
The ethics body claims the two were supposed to protect public property from snatchers but instead helped facilitate illegal acquisition by abusing their positions of authority and betraying the confidence of the public.
In the most recent case, the Environment and Land Court in Mombasa fined Mr Mwaita Sh5 million as a result of abuse of office and breach of trust for facilitating the illegal acquisition of land worth Sh70 million.
Justice Lucas Naikuni ruled that the title to land parcel NO.MN/I/2396- House Number HG143 Nyali was unlawfully issued to Bernsoft Ltd and Equitronics Ltd. The Judge ordered the two companies and Mr Mwaita to pay general damages of Sh30 million for denying the government the use of the property for 22 years.
The case was filed in 2009, when Mr Mwaita and the two private firms were sued. The land had been preserved for construction of a house for the members of staff of the then Directorate of Civil Aviation (DCA).
On Thursday, the EACC returned to the court to recover Kenya Revenue Authority (KRA) land valued at more than Sh358.5 million. The property hosts KRA executive staff quarters and is located in the Kizingo area within the town.
Former Kiambu Governor William Kabogo is among the 22 defendants, including individuals and companies. Also featured in the case is Mombasa tycoon Ashok Labhshanker Doshi. In this case, Mr Gachanja and Mr Mwaita have been listed as defendants for abuse of office and breach of public trust in facilitating fraudulent acquisition of the property.
The ethics body wants the court to declare all the title deeds owned by those it has sued invalid, null and void and ownership of the property reverted to KRA, which has been described as the rightful owner.
The EACC also wants an order directed at Mr Gachanja and Mr Mwaita to pay general damages to the public for the alleged fraud, breach of fiduciary duty and abuse of office arising from their actions that led to the grabbing of the government property.
EAC staff quarters
According to the EACC, the property number MI/XXVI/269, measuring 2.37 acres, was alienated and subdivided into several plots before being transferred to private developers. This plot had been reserved for construction of at least 20 high-standard maisonettes for senior EAC staff in 1974. Here, Mr Mwaita and Mr Gachanja have been mentioned as being at the centre of illegal acquisition.
In October last year , the ethics body filed a classic suit to recover 10 parcels of land allegedly grabbed from Moi International Airport (MIA) , including military and United Nation (UN) support bases worth Sh2.5 billion.
The case seeks to recover Sh984.3 million illegally paid as compensation for land compulsorily acquired for the standard gauge railway (SGR) and Dongo-Kundu Kipevu Road projects. Documents filed in court indicate that the National Land Commission (NLC) paid the millions to East African Gas Company, which is currently registered as the owner of all the parcels of the airport land.
The directors of the company are listed in court documents as Joshua Chelelgo Kulei, Caroline Jebet Kigen and Kipkurui Kimosop. They have also been named as respondents in the more than five files that were deposited by the EACC in court on Tuesday.
According to the EACC, the properties belong to the Kenya Airport Authority (KAA) but were fraudulently transferred to private developers. They include part of the MIA runway, a UN support base and a Kenyan Military base and its watchtower.
The ethics body argues that the grabbed land was set aside for use by MIA,under the management of KAA. Also sued in the case are former director KAA Peter Kipyegon Lagat. The EACC has blamed Mr Gachanja for facilitating the irregular excision and illegal alienation of the land in 1996.
Similarly, Mr Gachanja has been sued in another case involving the grabbing of two acres worth Sh380 million that EACC says were illegally allocated to a private developer. It says the property belongs to Kenya Ports Authority and wants its ownership reverted to the parastatal.
The EACC says the land no. MSA/Block XLVII/156 located in the Liwatoni area housing the Kenya Fisheries offices was in 1996 illegally alienated by then Commissioner of Lands Gachanja and allocated to Ms Bawazir Glass Works Limited, currently trading as Milly Glassworks Limited.
The agency says its findings have revealed that the property was illegally hived off from parcel MSA/Block/XLVII/109, measuring about two acres belonging to KPA. “The illegally allocated portion was under lease from KPA to the then Ministry of Tourism and Wildlife, Fisheries Department and currently the State Department of Fisheries and Blue Economy.”
Documents filed in court indicate that the process of alienating the property and the subsequent allocation was started through a letter of allotment issued to the company on February 12, 1996, by Mr Gachanja.
In the letter, he allegedly referred to the parcel as an un-surveyed light industrial plot in Mombasa.
“Despite several correspondences emanating from then Permanent Secretary of Ministry of Tourism and Wildlife to Mr Gachanja warning that the land belonged to the ministry and was not available for allocation, a title was subsequently illegally issued to Bawazir Glassworks Limited,” the EACC said, adding it has sued Mr Gachanja on account of fraud, illegality and overstepping his mandate.
The court has been told that in collusion with Mr Gachanja, the firm caused the land to be subdivided with an intent to defeat the public interest in or title deed to the property.
The EACC wants a declaration that the subdivision and allocation to the firm is null and void, and a cancellation of the registration of the property to the company. In several cases of similar nature pending before court, Mr Mwaita and Mr Gachanja are adversely mentioned as having facilitated acquisition of public land.