The Environment and Land Court has ruled in favor of the Ethics and Anti-Corruption Commission (EACC) in a long-running case over a prime parcel of public land in Gigiri, declaring that the title held by Gigiri Court Limited was unlawfully acquired and must be revoked.
In a judgment delivered by Justice David Mwangi, the court declared that the Certificate of Lease issued to Gigiri Court Limited for land known as Nairobi Block 91/386, measuring approximately 7.11 hectares and valued at Kes2.8 billion, was null and void and ineffectual in conferring ownership rights.
The court found that the property was an amalgamation of land reserved for the Kenya Technical Teachers College (KTTC) and a section of Karura Forest, both of which were public land and therefore not available for alienation.
The case, filed on September 10, 2007, sought to recover the land because its allocation and registration were fraudulent and illegal. Justice Mwangi held that the alienation of the land to the second defendant, the late John Joseph Kamotho, was contrary to the Forest Act and the Government Lands Act.
The court further found that the Commission had discharged its burden of proof by demonstrating that the suit property had been reserved for public use.
The judge reaffirmed that the constitutional protection of property rights under Article 40 does not extend to unlawfully acquired land. Citing Article 40(6) of the Constitution, he noted that the principle of first registration cannot be invoked to sanitize an illegal acquisition of public property.
Former Commissioners of Land, Mr. Wilson Gacanja and Mr. James Raymond Njenga, were found personally liable for their role in the allocation of the land. Justice Mwangi ruled that their actions were manifestly illegal and ultra vires, emphasizing that public officers who act outside their lawful authority can be held individually accountable for their decisions.
The court granted the Commission all the reliefs sought in the case, including a declaration that the alienation and registration of the land were irregular and illegal, cancellation of the lease and rectification of the land register, and a permanent injunction restraining the defendants from leasing, transferring, or otherwise dealing with the property.
However, the court declined to award general damages, observing that in such public interest cases, the government seeks restitution of public assets rather than compensation. The Commission was also awarded costs of the suit.
Justice Mwangi declined an application for a stay, effectively paving the way for the land to revert to the Government of Kenya. The judgement represents a significant victory for the EACC and reaffirms the principle that public land, including forest reserves and land designated for public institutions, cannot be lawfully converted to private ownership through fraudulent means.
The decision underscores the importance of vigilance in protecting public land and the enduring role of the EACC and the courts in upholding integrity and accountability in land administration.
– Ouma Ojango
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