Fake land titles: Courts must punish culpable public officers as much as owners

Kenya’s justice system has, by default, failed to tackle the root cause of fake property ownership documents, dealing, in the process, a blow to the principle of indefeasibility of title, the upshot of which being a thriving land racketeering, overnight millionaire public officials and devastated victims of con games in land transactions.

Law enforcement has always focused on the proprietor, oftentimes innocent, in illegal land transactions. Government officials, particularly in land registries who intentionally facilitate impropriety in the transactions, escape scot-free or, at the very most, with a slap on the wrist.

For instance, the Ethics and Anti-Corruption Commission (EACC) recently won an asset recovery judgment on appeal where government land that had been illegally alienated in Kakamega County to private hands. However, in a classical fashion, the proprietor faced the brunt of the Court by losing her investment. The government official whom every evidence in the case pointed to as having crookedly and blatantly broken every rule in the book to illegally alienate the piece of government land was not touched.

Sitting in Kisumu in Civil Appeal No. 39 of 2019 from the judgment and decree of the High Court of Kenya at Kakamega (Chitembwe, J.) of 21 July 2015, EACC (appellant) and Eunice N. Mugallia and Sammy Silas Kenon Mwaita as 1^st and 2^nd respondents, justices Ouko (P), Asike Makhandia and Murgor began by not only quoting, but also concurring with Maraga, J. as he then was (now retired Chief Justice of the Republic of Kenya) in the case of Republic vs. Minister for Transport & Communication & 5 others Ex-parte Waa Ship Garbage Collector & 15 Others Mombasa HCMCA No. 617 of 2003 eKLR E&L 563 hence;

“Courts should nullify titles by land grabbers who stare at your face and wave to you a title of the land grabbed and loudly plead the principle of the indefeasibility of title deed. It is quite evident that should a constitutional challenge succeed either under the trust land provisions of the Constitution or, under sections one and 1A of the Constitution, or under the doctrine of Public Trust, a title would have to be nullified because the Constitution is the supreme law and a party cannot plead the principle of indefeasibility which is a statutory concept. A democratic society holds public land and resources in trust for the needs of that society. Alienation of land that defeats the public interest goes against the letter and spirit of sections 1 and 1A of the Constitution.”

EACC had, in 2015, instituted a suit in the High Court at Kakamega against the respondents, jointly and severally seeking four orders. One, a declaration that the alienation of Land Reference Number Kakamega Municipality Block 111/242 by the 2nd respondent and the subsequent registration and issuance of the certificate of lease to Eunice N. Mugallia of the said parcel of land was irregular, fraudulent and illegal. Two, a declaration that registering the suit property in the name of Ms Mugallia conferred no estate interest or right to her. Third, an order directing the land registrar, Kakamega, to rectify the register by cancelling the certificate of lease regarding the suit property and, lastly, an order of permanent injunction restraining Ms Mugallia from dealing with the land.

The Government, EACC had argued, had set apart and alienated a portion of land in Kakamega Municipality/Block III to establish offices for the Ministry of Housing, which it developed as per the approved plan for Kakamega town. The boundaries of the parcel of land were marked and defined, making the offices and their compound identifiable. Upon investigations, however, EACC learnt that by a lease of 25^th May 2000, Mr. Mwaita, the Commissioner for Lands, purportedly executed the lease instrument on behalf of the President of the Republic of Kenya to Ms Mugallia for a term of 99 years with effect from 1^st August 1998.

The purported allocation, survey and creation of the suit property within the boundaries of the land set aside and developed with the Ministry of Housing offices to the 1st respondent by the 2nd respondent, the EACC argued, “was done fraudulently, unlawfully, corruptly and contrary to the provisions of the Government Lands Act, Registered Land Act, Town Planning Act (now repealed) and misfeasance in public office.”

Denying particulars of irregularities and illegalities at full hearing in the High Court, Ms Mugallia, a PhD student based in the USA who, nevertheless, was born, schooled and formally worked in Kakamega town, admitted that the lease deed was created in her favour on the express directions of the President of the Republic of Kenya. Mr Mwaita, through his advocates, among other arguments, denied knowledge of Land Parcel Kakamega Municipality Block/III being set aside for public purposes and, in particular, for the establishment of residential houses for civil servants and other Government officers.

EACC called four witnesses, including a Senior Estates Management Assistant, Ministry of Housing responsible for all Government Housing units in Kakamega Town. He testified, among others, that the suit property was created from a compound where there were the Ministry of Housing offices and that he learnt of the creation when the ministry started putting another office next to the existing one, only for Mrs Mugallia to emerge and claim ownership of the suit property. All Government houses are registered, and there was a register for that purpose and that the Ministry was not consulted when the suit property was hived off.

The 2^nd Prosecution witness was a County Surveyor who confirmed that the suit property belonged to the Government. He testified that when the Municipal Council intends to give out land, it has to be advertised to the public so that interested parties can apply. Thereafter, a resolution by the Municipal Council to allocate the land is sought, after which consent is sought for the subdivision from the local Land Control Board, and the Commissioner of Lands is later informed. The Commissioner of Lands can then allocate the land on the recommendation of the Municipal Council. Allotment letters are then issued, and the lessor is the Municipal Council. In the Municipal Council of Kakamega, he testified that there are government houses within the Milimani area where the suit property was located. He was unaware of any Municipal Council of Kakamega resolution to dispose of the property. He was also not aware of the communication to the Commissioner of Lands by the Council in relation to the suit property. He maintained that the Municipal Council owned the suit property and was not procedurally excised.

EACC’s Investigating Officer (IO), as the 3^rd Prosecution witness, testified that EACC received information in 2009 that an individual had illegally acquired property belonging to the Government. While investigating the matter, she obtained several letters of allotment, two of which had the postal address of Kakamega Lands Registry, which pointed to possible collusion between land officers in Kakamega and the could-be beneficiaries of fishy deals. For the suit property, she found an incomplete lease signed in favour of the 1^st respondent in May 2000. The lease bore no signature of the lessee, it had not been witnessed, and it had no Land Registrar’s name. There was no County Resolution or consent approving the allocation or any communication with the Commissioner of Lands over the issue. The suit property hosted offices belonging to the Ministry of Housing. The suit property, she testified, was not available for alienation.

A Sub-County Administrator, formerly a Clerk to the County Council of Kakamega, testifying as the 4^th Prosecution witness, confirmed there has been no resolution or consent approving the allocation of the suit property even as the lease indicated the Municipal Council of Kakamega as the lessor.

Ms Mugallia testified in her defence that she developed an interest in acquiring some property in Kakamega town in 1998. After she was informed of how to acquire one, she applied to the Lands Officer in Kakamega, where she was issued with an allotment letter on July 31, 1998, and paid the requisite fees of Sh21,014 to the Commissioner of Lands, after which a Government surveyor and beacons processed the title deed were placed on the ground in her presence and that she knew nothing about the suit property belonging to the Ministry of Housing.

Witnessing for the Defence, the Kakamega Land Registrar produced the green card and a lease document prepared by the Commissioner of Lands for the suit property. Both documents showed that the suit property belonged to the 1st respondent. She denied any knowledge of fraud.

Upon conclusion of the hearing, on July 21, 2015, the High Court dismissed EACC’s case and upheld Ms Mugallia’s title to the suit property. The Commissioner of Lands, the Court found, legally signed the lease document on behalf of the President, and it was not logical that the President would sign all leases or give directions to that effect. The Court also found that all unalienated land belonged to the government and could be allocated to its citizens. Once allocated, the new owners were protected under Article 40 of the Constitution.

Aggrieved, the EACC preferred an appeal on five condensed grounds; among them, the trial court erred in law and fact in finding that the suit property was not hived off from the expansive land reserved for Government use. That the suit property was illegally exercised from land reserved and developed with Government houses thereon. The 2nd respondent illegally and without authority prepared and signed the lease to the suit property on behalf of the President, yet the land was not available for alienation. The 2nd respondent had no mandate whatsoever, nor had he obtained the President’s authorisation to cause a grant to be issued to the 1st respondent. The fact that he signed the document on behalf of the President did not mean that the process was regular. The creation of a lease over the suit property was null and void as there was no land available for alienation, the same having already been planned and set aside and in actual use and possession as the compound for House No. L.G. 146. That the alienation had not received Presidential approval contrary to section 3 of the repealed Government Lands Act; thus, the actions by the 2nd respondent were a nullity.

The Appellate Court agreed with the appellant. “Lack of presidential authority to the 2nd respondent to alienate the suit property, coupled with dealing with the suit property as Government land but issuing the lease under the hand of the Municipal Council of Kakamega for which he had no jurisdiction, lack of identification of the legal regime invoked leads us to the inescapable conclusion that the 2nd respondent had no power to alienate the said suit property. It was thus fraudulent, illegal and unprocedural. The 2nd respondent thus acted without jurisdiction, and whatever resulted was a nullity,” they ruled.

Based on her level of education, the Court found that the 1^st respondent must have been aware that the suit property belonged to the government given that it was surrounded by government houses and facilities and fenced.

“We are satisfied, unlike the trial court, that the 1st respondent was aware that the suit property was alienated from the Government in an area with several Government houses and offices. With this information, she still proceeded to have it un-procedurally converted into private property and alienated from her. Even if she did not know, she was bound to undertake the due diligence expected of a person involved in such a transaction. Flowing from the foregoing, there can be no doubt that the conduct of the 1st respondent leading to the issuance of a certificate of lease by the 2nd respondent was indeed fraudulent, illegal and unprocedural, and she cannot run away from the consequences,” the Court averred.

Delving into the indefeasibility of title, the Court argued that its decisions abound on the inadequacy of waving title relating to public property without demonstrating how the public property was converted into private property.

The law, the Court stated, has drawback clauses as pertains to actions founded on illegality, fraud and irregularity, and as such, one cannot be said to be protected under the law when there is evidence that the person has conducted himself in a manner otherwise than required and the said provision is not a shield. The Court reiterated that although the appellant may brandish the certificate of lease and assert the indefeasibility of the title, as long the certificate was not procured per the law, it was a nullity.

Resultantly, the Court allowed the appeal and set aside the judgment and decree of the High Court, granting the appellant’s claim against the respondents jointly and severally. It ordered, one, that the alienation of the piece of land and the subsequent registration and issuance of the certificate of lease to the of the suit property was irregular and illegal and consequently null and void; the registration of suit property in the name of the 1st respondent conferred no estate interest or right; Land Registrar, Kakamega to rectify the register by cancelling the certificate of lease and all entries on the land register in respect of the suit property and; an order of permanent injunction restraining the 1st respondent and her agents from dealing with suit property other than by transfer of the same to the Ministry of Housing or the Government of Kenya. The Court also slapped the respondents with the costs of appeal and the High Court.

In all fairness, that served the first respondent right. It will go a long way to discourage proprietors from casually handling the issue of due diligence in land transactions or, as is sometimes the case, intentionally engaging in fraudulent purchases of public property, hoping to find solace in the sanctity of the title deed.

What it does not solve, however, is the root cause of the problem. If the government official who should know better and who facilitates the fraud intentionally, aided by the privilege of access to government records by virtue of his services, is let off the hook, fraud in land transactions will forever thrive. Dealing harshly with the buyer is unfair even as it is fulfilling. It is akin to trying to cut off the demand side as you let the supply side flourish.

Justice (retired) Maraga’s averment that slammed the indefeasibility of a title deed that is fraudulently obtained, which the Court of Appeal embraced in their judgment in this appeal, would have done more justice by going further and castigating the role of the government official in the fraud as well.

A whole chapter in the Constitution with eight Articles, for instance, speaks to the integrity in public service. Besides, Art. 10 speaks to national values and principles of governance that bind all State organs and State and public officers. Art. 232 addresses the issue of values and principles of public service.

Titles by land grabbers that Maraga so passionately addressed in his averment, which found favour in the judgement of the Court of Appeal in this appeal, are generated by public officials. The titles bear the authenticity of a public document, and the officials, in the face of the aforementioned articles of the Constitution, should bear the harsher brunt of the law alongside the owners of the fake documents. (