EACC recovers Sh21m Mombasa road reserve after 17-year battle

 EACC headquarters in Nairobi. [File, Standard]

The Ethics and Anti-Corruption Commission (EACC) has recovered public land valued at Sh21 million in Mombasa Island, after a court cancelled a fraudulently obtained title to the 0.13-acre parcel reserved for Tom Mboya Avenue expansion.

Justice Stephen Kibunja on Wednesday, December 10, ordered cancellation of the title to land parcel number Mombasa Island/Block XI/983, ruling that it was irregularly allocated through a chain of illegal transactions beginning in 1996.

The Environment and Land Court found that the owner, identified as Isaac Munyi Njeru allegedly received the first allocation through a letter dated January 24, 1996 issued without any application. The property later passed to Julius Mwamsae in 2002 before being sold to Mohamed Mahfudh Saad for Sh500,000 in 2003.

"The alienation and allocation of Mombasa Island/Block XI/983 being part of the road reserve was unlawful, illegal, null and void," said Kibunja in his judgment.

EACC filed the case on January 18, 2008 through its predecessor, the Kenya Anti-Corruption Commission (KACC), following investigations into allegations of grabbing land along Tom Mboya Avenue Road reserve.

Arthur Kanyanjua Mbatia, assistant director of physical planning at the Ministry of Lands, told the court that his office has no records of approving the Physical Development Plan (PDP) cited in the allocation documents.

"The 1996 PDP cited in the letter of allotment was not made from our office, and therefore the allocation of the suit property was based on a forgery," said Mbatia.

Phillip Osiemo Manua, an engineer with the County Government of Mombasa, explained that Tom Mboya road is classified as a class C road of 100 feet standard width. He further said the Ministry of Roads had requested clearance of the road reserve but could not proceed due to developments on the grabbed plots.

"The defunct Municipal Council of Mombasa had no powers to allocate plots on the road reserve, and therefore the suit property was irregularly allocated," Manua said.

The court heard that Land Registrar Kenneth Githii registered the property and issued a certificate of lease in favour of Mwamsae at Sh6,000 per annum for 99 years in 2002.

Salim Mohamed Mahfudh, testifying under power of attorney for his father, claimed they purchased the land after conducting a search and obtaining clearance certificates from the defunct Mombasa Municipal Council.

However, Kibunja ruled that Saad failed to acquire a valid title. "Had he investigated the first defendant's root of title to the suit property and made enquiries from related public offices like that in charge of roads and the neighbours, he most likely would not have proceeded to invest his money on a property whose history and title was based on a shady foundation," the judge ruled.

The court directed the Mombasa Land Registrar to cancel all entries related to the certificate of lease dated December 20, 2002 and reinstate the parcel as part of the road reserve.

Saad has 90 days to vacate the property before eviction proceedings commence.

The judgment noted that although the Commissioner of Lands and other public offices played active roles in the illegal allocation, they were not made parties to the suit. The court ruled that each party would bear their own costs.

Dedan Okwama, an EACC investigator, told the court the property is among many plots irregularly excised from Tom Mboya Avenue Road reserve.

The commission has valued the recovered land at Sh21 million based on a report by a registered valuer.

A permanent injunction now restrains the defendants from trespassing upon, transferring or dealing with the property except by surrender to the government.