Illegally acquired public land.
Brief history.
The petitioner in this matter (KANU) filed this suit stating that they are registered trustee and or beneficial owner of all that parcel of land known as Land Reference Number 209/11157 housing KICC.
The petitioner states that the property was allocated to it by way of a letter of allotment dated 10th May, 1969. The said letter conferred title and ownership of the property
Following the survey and delineation of the suit property the Petitioner was granted a Title deed for a 99year lease commencing on 1/12/1969 on 25/05/1969.
The Petitioner argued that the Respondents (government agencies) issued and applied an executive order communicated by way of a signed press statement to forcefully claim ownership of land parcel known as Land Reference number 209/11157. This takeover of the petitioner’s property was without compensation or consideration to the petitioner and neither was the said executive order produced nor served upon the petitioner to enable it to respond.
The Respondents/cross-petitioners alleged that the suit property being claimed by the Petitioner was obtained and acquired in breach of Article 62(4) which provides for the manner in which public land shall be disposed of. Further the suit property houses KICC which they testified was constructed using public funds.
Process of disposing Government Land.
The Petitioner did not submit a letter of allotment nor any documents that would trace the root of the title being claimed to have been allotted to the Petitioner.
The court then proceeded to highlight the process of disposition of government land followed the following procedure: –
- The respective municipal council in which the land to be disposed was situate had the mandate of advising the Commissioner of Lands on which portions of land could be disposed. This step would have required the responsible council to visit the area or to carry out a fact-finding mission to satisfy myself that the land was first of all government land and second that it was indeed available for disposition.
- The part development plan to be drawn up and approved by the Commissioner of Lands.
- The determination of certain matters by the Commissioner of Lands which include the upset price at which the lease of the plot would be sold, the conditions to be inserted into the Lease, the determination of any attaching special covenants and the period into which the term is to be divided and the annual rent payable in respect of each period.
- The gazettment of the plots to be sold, at least four weeks prior to the sale of the plots by auction under section 13 of the Government Lands Act (repealed). The notice was required to indicate the number of plots situate in an area; the upset price in respect of every plot; the term of the Lease and rent payable, building conditions attaching special covenants.
- Sale of the plots by public auction to the highest bidder under section 15 of the Government Lands Act (repealed).
- The issuance of an allotment letter to the allottee.
- The compliance of the allottee with the conditions set out in the allotment letter is the cadastral survey, its authentication and approval by the Director of Surveys and the issuance of a beacon certificate. The survey process precipitates the issuance of land reference numbers and finally issuance of a certificate of lease.
Findings of the Court.
The Court found that the Commissioner of Lands had no authority to alienate the suit premises in this case to the petitioner. The allocation of the suit premises to the Petitioner was therefore not only irregular but unlawful as well. Thus the petitioner is not entitled to the orders that they have sought in the petition.
The power of the President under section 3 of the GLA was delegated to the Commissioner of Lands in cases, only for religious, charitable, education or sports purposes. KANU was neither religious, charitable, education or sports institution. It was and is a political party of members with private aspirations not a charitable not an educational, not a religious nor an institution related to sports.
Section 26(1) (b) of the Land Registration Act which the Petitioner sought to hinge his claim on does not protect the Petitioner’s title at all. Equally this is a title that does not enjoy the protection of the law under Article 40(3) of the Constitution as it had been found to be unlawful under Article 40(6) of the Constitution.
Article 40(6) of the Constitution provides that protection given to a right to acquire and own property does not extend to property that has been acquired unlawfully. It was the Court’s finding that the Petitioner has no valid proprietary rights in the suit property capable of protection by law. The court found no merit in the Petitioner’s contention that its rights to property under Article 40 of the Constitution were violated by the Respondent.
The court established that the Petitioner is not the owner of the suit property having acquired it in the most unprocedural ways which was a nullity ab initio. The Court further held that the Petitioner is not entitled to any compensation as the building erected on the suit property was erected by the government using public funds and it is a public building and the court established that the suit property belongs to the government as claimed by the cross petitioners and there is no way the Petitioner will be compensated by the doctrine of compulsory acquisition.
The cross petitioners have been able to specifically prove the particulars of breaches of clearly laid down procedures in law that were not followed by the Petitioner in seeking to acquire the suit property. The suit parcel being public land, the Petitioner ought to have followed the procedure provided in law in order to have the suit parcel allocated to them. This court has looked into evidence on record and it is clear that the suit parcel was illegally and un-procedurally acquired by the Petitioner.
The court found the title held by the Petitioner is null and void, given that it was appropriated in contravention of the law. It is the finding of the Court that Section 143 of the Registered Land Act (now repealed) and Section 80 of the Land Registration Act empowers it to cancel an illegally acquire title. Equally the said title is impeachable under section 26(1) (b) of the Land Registration Act which provides that a title can be challenged where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme.
The Court declared the Ministry of Tourism as the lawful owner of the suit land.
