How 1.5ha plot reverted to private developer

By Wahome Thuku

Nairobi, Kenya: A private company is caught up in a showdown with a public secondary school in Nairobi over the ownership of 1.5 hectares of prime land.

After losing a court battle to the private developer in 2012, Langata High School has resorted to mass action, to stop the firm from carrying out any developments on the land.

On February 19 last month, the School’s  Board of Governors Chairman Oscar Beauttah sent out letters to media houses, Nairobi Governor Evans Kidero, county political leaders, various residential associations, churches and police notifying them of a planned demonstration at the school (last Tuesday) to stop alleged grabbing of the school land.

The dispute over the parcel of land No Nairobi/Block 72/3174 dates back to February 20, 2009, when Emange Se-Semata Investments Ltd allegedly bought it for Sh68 million from one David Some Barno, Samuel Wambugu Kimotho and Winfred Nyawira Maina.

The transfer was registered on April 21, 2009, and a certificate of lease issued to the company. On April 30, Emange Se-Semata Investments charged the property to Equity Bank for a loan of Sh45 million. The company obtained the certificate of search on May 7, 2009, indicating that they were now the registered owners of the property.

They then applied to the National Environment Management Authority (Nema) for an approval to develop the property and were granted. They also obtained approval of the City Council of Nairobi.

On May 21, 2010, the Nairobi Land Registrar revoked the title to the property through and Gazette Notice No 5563. Emange Se-Semata Investments Ltd immediately filed a petition at the High Court in Nairobi to challenge the decision.

The Company Director Harun Osoro Nyamboki told the court that they had exercised due diligence by conducting search on the property, which confirmed that the three sellers were the registered owners.

He claimed there was no basis for the revocation of the title.  Their lawyer submitted that the revocation was done without giving the company a hearing, adding that under the Registered Land Act, the company was protected as the registered owner.

They argued that under Section 39 of the Act, the company was not required to go beyond the register to inquire how the previous owner got the land. The power to rectify the title was given to the court and not to the Registrar.

The firm submitted that Article 40 of the Constitution gave protection to private property and prohibits arbitrary taking of property hence the revocation was unconstitutional. It claimed that on June 28, 2010, the High Court restrained the respondents from taking any further action on the land, but they defied and the registrar issued the order to the school on October 12, 2010.

The company sought a declaration that they were the legally registered and lawful owners of the land hence the decision by the registrar to revoke the title was unconstitutional and hence null and void. They claimed the invasion of the land by the school was a violation of their right to property protected under Article 40 of the Constitution.

Public interest

The company director asked for revocation of the Gazette Notice and payment of damages for inconvenience and anguish.

Langata High School, through its board, argued that that they had applied for allocation of the land, which is adjacent to the institution, from the Government for expansion. The land was allegedly allocated to the Treasury PS as trustee for the school. They argued that public interest overrides that of individual under the Constitution.

The respondents argued that Article 40(6) of the Constitution did not protect illegally acquired property.

The Land Registrar claimed the land was originally No Nairobi/Block 72/2881 and was alienated on January 17, 1975, and reserved by the Government for public use as an administrative centre. A chief’s camp was put up on a portion of the land and the other has been in the possession of Langata High School.

On May 7, 2007, the then Nairobi Provincial Commissioner  had written to the Commissioner of Lands asking to know about the status of the land since a chief’s camp was located there.

On September 10, 2007, the Ministry of Lands wrote to a law firm asking it to advice their client, a Mr Job Kiprandi Chebon, to surrender the title as the land was already developed and a chief’s camp was located there.

The respondents argued that for the public land to be allocated for other purposes, it had to go through processes provided under several statutes. They claimed the law had not been followed before the land was allocated to the company.

The registrar submitted that if the company had examined correspondences at the ministry, it would have known that the land was not clean for purchase.

They argued that the registrar had powers under the law to call a title and to rectify it. In this case, they argued, there was no valid title as this was public land and the petitioner’s title was invalid from the beginning.

The respondents sought a declaration that the certificate of lease was null and void with no effect in law. They claimed the company had also filed another case in the High Court seeking same orders and hence was abusing the court process.

High Court judge Mumbi Ngugi acknowledged that under Article 47 of the Constitution, everyone has a right to be heard before an administrative action that affects him or her rights is taken. This was not observed when the registrar issued the Gazette Notice No 5563.

“The court has in several decisions found that the purported revocation of title to land in circumstances similar to those in the present case amounts to a violation of the right to a fair hearing and administrative action,” the judge held.

She cited several cases in which the courts had declared the revocation of titles through Gazette notices was unconstitutional, null and void.

Then judge said the right to be heard is a rule of natural justice recognised even under the old Constitution. She further pointed out that the power of the registrar under the law to call up and rectify a title did not extend to cancellation of titles.

Such power was only vested in the court hence the actions of the registrar could not be supported.

The court acknowledged that the legality of the title was an issue that needed to be addressed.

She held that the respondents should initiate the proper process of dealing with the title so that the matter could be determined expeditiously. With that the court declared the revocation of the title through Gazette Notice No 5563 null and void for breach of the company’s right to be heard. That meant the land belonged to Emange Se-Semata Investments Ltd until the dispute over its ownership was resolved.

The judge ordered the AG, the minster, the Commissioner of Lands and the District Registrar of Lands to pay costs to the company.

The writer is a court reporter.

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