Case ID:165408

Kenya Anti-Corruption Commission v Vincent Kipkirui Tuwei, Wilson Gacanja & United Millers Ltd [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 415 of 2015

Parties:

Kenya Anti-Corruption Commission v Vincent Kipkirui Tuwei, Wilson Gacanja & United Millers Ltd

Date Delivered:

06 Mar 2020

Case Class:

Civil

Court:

Environment and Land Court at Kisumu

Case Action:

Judgment

Judge(s):

Stephen Murigi Kibunja

Citation:

Kenya Anti-Corruption Commission v Vincent Kipkirui Tuwei, Wilson Gacanja & United Millers Ltd [2020] eKLR

Advocates:

M/s Omweri for the Plaintiff.

M/s Onsongo for the 1st and 3rd Defendants.

Court Division:

Environment and Land

County:

Kisumu

Advocates:

M/s Omweri for the Plaintiff.

M/s Onsongo for the 1st and 3rd Defendants.

Case Outcome:

Prayers granted

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT KISUMU

E & L CASE NO. 415 OF 2015

KENYA ANTI-CORRUPTION COMMISSION......PLAINTIFF

VERSUS

VINCENT KIPKIRUI TUWEI.........................1

ST

DEFENDANT

WILSON GACANJA.........................................2

ND

DEFENDANT

UNITED MILLERS LTD..................................3

RD

DEFENDANT

JUDGMENT

1.

Kenya Anti-Corruption Commission

, the Plaintiff, commenced this suit against Vincent Kipkurui Tuwei, Wilson Gacanja and United Millers Ltd, the 1

st

to 3

rd

Defendants respectively vide the further amended plaint dated the 22

nd

June, 2010 seeking for;

“(a) A declaration that the issuance and registration of a Lease by the 2

nd

Defendant in favour of the 1

st

Defendant over Kisumu Municipality/Block 7/503 was null and void ab initio and ineffectual to confer any right, interest or title upon the 1

st

Defendant in the first instance.

(b) A declaration that the subsequent transfer of the Lease and issuance of a Certificate of Lease over Kisumu Municipality/Block 7/503 to the 3

rd

Defendant was null and void and ineffectual to confer a good title upon the 3

rd

Defendant.

(c) An order for rectification of the land register by cancellation of the lease over Kisumu Municipality/Block 7/503 and Certificate of Lease issued to the 3

rd

Defendant so as to restore the suit property to the Corporation.

(d) An order for a permanent injunction against the 3

rd

Defendant by itself, its agents, servants or assigns restraining them from leasing, transferring, charging, entering upon, developing, or in any other manner howsoever from dealing with Kisumu Municipality/Block 7/503.

(e) General damages for fraud as against the 1

st

and 2

nd

Defendants only.

(f) Costs of and incidental to the suit.

(g) Any other or further relief the court may deem fit and just to grant.”

2. The Plaintiff avers that Kisumu Municipality/Block 7/503, the suit land, was at all material times part and parcel of a larger parcel of land surveyed and assigned L. R. No. 1148/Section LV and set apart as railway reserve in 1935. That it was subsequently vested in the East African Railways & Harbours in 1963, and to East African Railways Corporation in 1969, and thereafter to Kenya Railways Corporation, the Corporation in 1986. That pursuant to investigations carried out by the Plaintiff, it was established that on or about 14

th

October 1999, the 1

st

Defendant wrongfully and fraudulently procured from the 2

nd

Defendant a lease over the suit land for private purposes. That the 1

st

Defendant then transferred the suit land to the 3

rd

Defendant on the 2

nd

February, 2000. The Plaintiff avers that the transaction by the Defendants over the suit land were fraudulent and illegal as they all knew of the Corporation’s interest over the land. The Plaintiff has set out the particulars of fraud, illegality, knowledge and constructive trusts at paragraphs 7, 8, 10 and 12A of the Further Amended Plaint.

3. The 1

st

and 3

rd

Defendants filed their Amended Statement of Defence dated 11

th

February, 2010 and Statement of Defence dated 29

th

June, 2010 respectively, through M/s Onsongo & Company Advocates denying the Plaintiff’s claim. The 1

st

Defendant contends that the process through which he obtained the suit land was legal, procedurally correct and was not holding it in trust for any person. The 3

rd

Defendant averred that they procured the suit land as a bonafide purchaser for value without notice.

4. The 2

nd

Defendant, Wilson Gacanja filed the statement of defence dated 11

th

November, 2009 through M/s Rachier & Amollo Advocates disputing the Plaintiff’s claim. The 2

nd

Defendant denies knowledge of the conveyance over the suit land and the Corporation’s interest over the same. That the person holding the office of Commissioner of Lands would generate the documentation required for unoccupied government land to be divested to the public in exercise of the President’s delegated statutory authority, and in his official capacity, in pursuance of the government privatization policy.

5. That during the hearing, the Plaintiff called Wilson Francis Ojunju, a Senior Lands Surveyor, Judith Akinyi Olewe of the Ministry of Lands Records Office, and Joseph Ndirangu Kariuki, a Lands Officer with National Land Commission who testified as PW1 to PW3 respectively. It was their case that the suit land was part of the land set apart and vested with the Corporation as per the Registry Index Map (RIM) produced by PW2 as exhibit 2. That after receiving complaints from the Plaintiff that the land belonging to the Corporation had been illegally allocated, the Commissioner of Lands Office carried out investigation as explained by PW3. The investigations confirmed the complaints were correct and in respect of the suit land, they did a letter on 10

th

March, 2009 to the 1

st

Defendant withdrawing the offer and seeking for the title documents to be returned for cancellation. That 1

st

Defendant declined to return the document. That they asked the Director of Surveys to resurvey the Corporation’s land and after the exercise, issued a letter of allotment for Kisumu Municipality/Block 7/567, measuring 72.38 hectares to the Corporation. The lease was later issued and registered.

5. The 2

nd

Defendant did not participate in the hearing though duly served with hearing notices. The 1

st

and 3

rd

Defendant participated in the proceedings through Counsel but did not call any witnesses despite being given time to do so.

6. The following are the issues for court’s determination;

(a)

Whether the suit land was part of the land set apart and vested with the Corporation.

(b) Whether the suit land was available for alienation when it was allocated to the 1

st

Defendant.

(c) Whether the 1

st

Defendant obtained good title to the suit land capable of being transferred to the 3

rd

Defendant.

(d) Which of the prayers sought by the Plaintiff should be granted?

7. The court has after considering the parties’ pleadings, oral and documentary evidence by PW1, PW2 and PW3 come to the following findings;

(a) That the oral and documentary evidence presented to the court by the Plaintiff’s witnesses clearly shows that the suit land was part of a larger parcel of land set apart and vested in the Kenya Railways Corporation, the Corporation, and previously its predecessors in title.

(b) That the evidence adduced by the Plaintiff’s witnesses through specifically PW3, confirms that the Corporation had not surrendered the said land back to the government at any time, and it was therefore not available for allocation to the 1

st

Defendant by the time the 2

nd

Defendant issued the letter of allotment and the lease thereafter. The Court of Appeal decision in

Kipsirgoi Investments Ltd Vs Kenya Anti-Corruption

Commission Eldoret Civil Appeal No. 288 of 2010

pages 26 and 27 is relevant.

(c) That the Defendants having failed to call evidence in support of their defence left the averments in their statements of defence as mere allegations and hence incapable of challenging the evidence adduced by the Plaintiff in support of its case.

(d) That the fact the suit land was part of the land dedicated for the use of the Corporation, and not available for alienation, leads the court to find that the 2

nd

Defendant acted beyond or outside his powers when he allocated the land to the 1

st

Defendant. The decision in the case of

James Joram Nyaga & Another Vs The

Attorney General & Another [2007] eKLR

is relevant. That the physical position of the suit land as confirmed through the survey map and Registry Index Map (RIM) produced as exhibits would have been reason enough to warn the 3

rd

Defendant that the property belonged to the Corporation. That as the 3

rd

Defendant has not tendered any evidence to confirm whether or not they carried out due diligence before entering into the transaction with the 1

st

Defendant, then there is no evidence upon which they could claim to be bonafide purchaser for value without notice. The title is therefore not protected under

Article 40 (6) of the

Constitution and Section 26 of the Land Registration Act No. 3 of 2012

.

(e) That the Plaintiff has not adduced any evidence upon which the court could base the prayer for general damages on and none is granted.

(f) That the Plaintiff has proved its case against the three defendants and is entitled to the declaratory prayers, permanent injunction, and rectification of the register order as prayed.

(g) That the Plaintiff having substantially succeeded in its claim, the three Defendants should pay its costs of the suit as under

Sections 27 of the Civil Procedure Act Chapter 21 of Laws of

Kenya

, costs follow the event.

8. That flowing from the foregoing, the court finds that the Plaintiff has proved its case against the Defendants on a balance of probabilities. That the court enters judgment for the Plaintiff against the Defendants in terms of prayers (a), (b), (c), (d) and (f) of the Further Amended Plaint dated the 22

nd

June, 2010 and filed on the 23

rd

June, 2010.

Orders accordingly.

Dated and signed at Eldoret this 3

rd

day of February, 2020.

S. M. KIBUNJA

JUDGE

Delivered and signed this 6

th

day of March, 2020.

A. OMBWAYO

JUDGE

Judgment read in open court in the presence of:

M/s Omweri for Plaintiff.

M/s Onsongo for 1

st

and 3

rd

Defendants.

Court Assistant: Joane