Kenya: EACC Recovers Land Illegally Given to Kanu-Era Politician

17 November 2020

The government has recovered 12-acre piece of land that was fraudulently gifted to a Kanu-era politician in the 1990s.

The land had been reserved for use by the East African Customs and Excise Department (the predecessor to the modern-day Kenya Revenue Authority) to build a watchtower and a resting place for officers on patrol.

It was later illegally allocated to Kilifi politician Kennedy Mohamed Sheikh Ali, now deceased, by the then Commissioner of Lands through Kilifi District Commissioner Wilson Gacanja for "doing a lot for the party but has not enjoyed the fruits of uhuru".

The property, which had been designated as a customs department area, is situated close to Mtwapa Creek. Mr Ali then sold the property to former KRA employee Francis Githui Wahome, who then processed and acquired the title for it.

He subdivided it into plots and transferred it to Frann Investment Ltd, a company he co-owned with his wife and three sons. The company developed a five-story building comprising 10 flats.

But the Environment and Land Court sitting in Mombasa has now nullified the title issued to Mr Wahome, a former preventive officer, and directed that the ownbership of the land revert to the government after finding that it was not available for allocation at the time it was purportedly given to Mr Ali .

Justice Sila Munyao ruled that, where public land had been assigned for a specific purpose and for as long as the need remains, that land cannot be alienated for private use. The judge has therefore directed the alleged "innocent" purchasers -- Frann Investments Ltd , Mr Wahome, Mr Victor Wahome, Mr Edward Kagume and Mr David Mwangi -- whom the Ethics and Anti-Corruption Commission (EACC) had sued, to demolish the developments on the land and leave within 30 days.

Justice Munyao observed in the ruling that, even assuming that the land was unalienated, the Commissioner of Lands still had no power to allocate it to Mr Ali .Mr Gacanja has been fined Sh1million general damages for fraud and breach of fiduciary duty.

In his defence, Mr Wahome argued that he was an innocent buyer and should not be punished for a mistake that was not his.

He also argued that, because no prior allotment letter or title had been issued for the land at the time he bought it, then the land could be alienated for private use by the Commissioner for Lands. He asked the court to protect him under the doctrine of innocent purchaser for value.

But the court disagreed with Mr Wahome noting that, having worked for the Customs Department in a senior position, he must have known that he was buying land that his employer had an interest in.

"By no stretch of imagination can Mr Wahome be said to be an innocent purchaser for value ... because the doctrine ... cannot be used to sanitise a title that is null and void ab initio and neither can it breathe life into a null title," said the judge.

Reacting to the judgment, EACC boss Twalib Mbarak said the decision sends a clear warning that public land illegally alienated for political patronage is liable to be recovered: "The commission calls upon those who may have benefited in like manner to voluntarily surrender the property".

He added that the judgment serves as a warning to state officers who breach their fiduciary duty to the government that they are liable to pay damages if found to have aided in the commission of a fraud.

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