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Joy as court reverts grabbed land to Kakamega Primary School

Western

The Court of Appeal in Kisumu has reverted land grabbed by private developers to Kakamega Primary School.

This is after a three-judge bench dismissed an application for a ‘review of its judgment’ lodged by two private developers namely Yako Supermarket (K) Limited and Sudhir Khetia.

They listed the National Land Commission (NLC), the Lands and Housing Cabinet Secretary, the Chief Land Registrar (Board of Management), and Kakamega Primary School as respondents.

Appellate Judges Hannah Okwengu, Hellen Omondi, and Joel Ngugi unanimously dismissed the application on February 9, thereby handing over the disputed prime plot back to the school with a population of more than 4,500 pupils.

The private developers had already started constructing a high-rise building on the disputed land.

“In their original suit before the Land Court, the applicants did not attempt to show that the original allottees who sold the suit properties to them had valid titles. Neither did they attempt to demonstrate how the suit properties were allocated to the initial allottees,” the judgment reads in part. 

The Judges ruled that that the private developers did not attempt to show that the correct process of alienation and allocation of the suit properties was followed and their suit was based primarily on the indefeasibility of the titles they had. 

“It is, therefore, a little-disguised afterthought for them to belatedly seek to introduce evidence aimed at strengthening the weak links in their case identified by this Court of Appeal. Our review jurisdiction must never be used to permit a party a second bite at the cherry,” the judgment further reads in part 

“The upshot is that the application dated July 23, 2023 is without merit. It is hereby dismissed with costs to the 4th respondent (Kakamega primary) who is the only one who responded to the application." 

The judges ruled that "we are simply not persuaded that the applicants have demonstrated before us that they exercised due diligence to obtain the documents they now wish to be considered while the litigation was still ongoing. "

“All the applicants have annexed are various letters written after this court’s judgment to request for the files from the Ministry of Lands. The letters attached to the application were all sent to the Ministry of Lands in June 2023 – a month after the judgment of this Court,” the Judges rules.

“To benefit from the exceptional jurisdiction, a party is required to demonstrate palpably that they did everything possible to get those documents while the trial was ongoing or were otherwise unaware of their existence. We are not persuaded that either case is proved here,” read the ruling 

The school Board of Management Chairman Godfrey Mamalia and the head teacher Dickson Wanyangu welcomed the court’s decision.

They said the case has taken many years and "now we have gotten a reprieve, justice has been served and our request is to have the structure demolished  and give our pupils back their playing field."

Earlier, Justices Mumbi Ngugi, Patrick Kiage, and Francis Tuiyott ruled that Yako Supermarket and Sudhir Khetia held illegal claims to Kakamega Town Block 11/292 and 11/252 after they were duped to buy them from third parties knowing very well they belonged to the public school.

They applied for a review of this judgment on grounds that "they had discovered new evidence that can be considered."

In the court papers, they argued that the decision of the National Lands Commission (NLC) dated October 8, 2015 was made without the benefit of the newly “discovered” documents which will inform the court of the process of allocation of the properties and the history of the parcels from 1951 to date. 

The school's lawyer Calistus Shifwoka, in his submissions, asked the court to dismiss the application on grounds that "the applicants are on a fishing expedition having failed to convince Land’s Court and the Court of Appeal of the merits of their case and that they were trying to patch up their case."

The Judges found no fault in the NLC’s action of repossessing the land on behalf of the school even as Yako and Khetia felt it was an infringement.

“The NLC properly exercised its mandate in finding that the plots were public property reserved as a playing field for Kakamega Primary School. It was not available for allocation. The trial court properly found that Yako and Khetia did not exercise due diligence before entering into transactions in respect of the properties, and they were not bona fide purchasers for value who would get protection under section 14(7) of the National Land Commission Act,” said the judges who sit in the Appeal Court of Kisumu.

The Judges supported the judgment by the Kakamega Land Court which observed that the plots were illegally alienated into private property and later sold to the two developers.

The judges equally held that the plots were public utility land that could not be sold.

Yako and Khetia purchased the prime plots from Michael Odwoma and Kito Pharmaceuticals Limited on February 5 and August 20, 2011.

But on February 17, 2012, the Registrar of Lands in Kakamega issued a gazette notice revoking their titles after the public raised the red flag. This resulted in the developers moving to court to challenge the decision.

Justice Juma Chitembwe, then a judge in Kakamega ruled in their favour saying the Land Registrar had no powers to revoke the developers’ titles and his decision was therefore null and void.

The case wound up before Justice Nelly Matheka of the Kakamega Land Court, who on July 29, 2020, ruled that the developers illegally acquired the plots and reverted the land to the school. 

Disgruntled, the private developers appealed before the three Kisumu judges, arguing that their property right was violated as they bought the plots legally and even had titles to show for it. 

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