How churches are losing prime land in bitter disputes
By Everlyne Kwamboka | September 13th 2020
Several churches are counting losses after they were stripped off their property worth millions of shillings in a legal battle, despite being in possession of title deeds.
With the title deeds declared null and void by the courts, the churches have to vacate and leave behind massive developments, which faithful dug deep into their pockets to fund.
Anglican Church of Kenya (ACK) Archbishop Jackson ole Sapit says most of the land issues are as a result of the trust the church has in those allocating or gifting them.
“Instead of processing the titles immediately, they start developing the property and when brokers discover, they take advantage of the situation by processing titles in different names and later asking the church to vacate the property,” he says.
Sapit says fraudsters take advantage of religious institutions because they feel “men of God” cannot fight but vacate quietly, adding that this has led to some property being issued with two title deeds by the officials at the Ministry of Lands.
For instance, ACK, which has been fighting to resolve disputes related to prime property, has been slapped with court orders requiring it to vacate parcels it has spent millions of shillings to develop.
On June 3, the Environment and Land Court ordered the ACK church, to vacate land it has been occupying for four decades.
ACK had told the court it was allocated the land by a self-help group during subdivision of the 719 acres property and constructed a church, a vicarage and established an orange farm.
This was in a case where the late Esbon Wainaina’s children went to court in 2017 claiming the church had hived off 0.574 acres without permission.
They asked the court to kick out the church or order that they be compensated Sh600,000, being the market value of the portion, and general damages for the loss of use.
The court heard that Wainaina was a member of the Ndabatabi Self-Help Group that bought 719 acres from a white settler in the 1960s. In 1973 the land was subdivided and members were allocated plots. His father got plot No 38, where he settled with his family until he died in 2014.
In 1988, the members got titles for the land through a land commission, which carried out the survey.
Wainaina’s children - Francis Mugo and Peter Mugo - argued that the church could not have participated in balloting for the land allocation because it was not a member of the self-help group.
Justice Grace Kimei found that according to the registered document, from which the titles were prepared, the family is the registered owner of the suit land. She ruled that the church did not present a justifiable reason to continue occupying the land, and found it in trespass or illegal occupation of the same.
In Lang’ata, Nairobi, a property that the ACK trustees purchased and developed using funds raised by faithful is subject to legal battle.
The court declined to declare null and void the National Land Commission’s (NLC) decision to revoke a title deed for the 0.60 hectares on which ACK Good Shepard stands, on the grounds that its rights were violated by being denied a hearing by NLC.
In a judgment delivered on May 14, Justice Elijah Obaga said ACK had a case before the Environment and Land Court on the same asset, where legality of the title can be ventilated.
The church has established a sanctuary, Sunday school, office block and nursery school on the suit land.
NLC revoked the title deed issued on July 13, 2013, following a complaint by the Kenya Highways Authority that it was public land.
The Catholic Church also suffered a blow on July 16 when the court revoked a title deed for a piece of land that was occupied by the Capuchin Franciscan Fathers, who had established a hospital, school and chapel.
The land in Juja, Kiambu County, was reverted to the public following a successful application by Samuel Wainaina and Anne Kimani, who had sued the church on behalf of Mwalimu Farmers Owners Association.
They told the court the property set aside for construction of primary and secondary schools was part of the 1,100 acres owned by the association.
However, they learnt that the church trustee intended to alienate the suit property for personal use.
NLC was invited for a public hearing regarding the property and it upheld the church’s title in a Gazette notice published on July 17, 2017, a decision that saw the two petitioners, who are the association’s officials, move to court.
The church, through Brother Joseph Bukanja, told the court it bought land from the association that was initially known as Mwalimu Sukari Company that later swapped it with the suit property to allow construction of a bridge.
The church had initially been allocated 10 acres for Sh50,000 in 1993 and Selasio Njuki agreed to sell his six acres to the association and the two were amalgamated.
Justice Lucy Gacheru ruled that it was clear that though NLC has powers to allocate land, its powers to allocate the said public land was limited.
“It could not allocate land that was set aside for education, in which case the instant suit property was set aside for the building of a school thus education, and the same could not be allocated,” she said.
The Presbyterian Church of East Africa has also been ordered to vacate 0.01 hectares in Kajiado County and the asset registered in the name of the Treasury Permanent Secretary to hold in trust for the government and issue it with a Certificate of Title to that effect.
Justice Christine Ochieng’ gave the church 90 days from June 22 to vacate after finding that it acquired the public property illegally and unprocedurally, and ordered cancellation of the title deed.
“A declaration be and is hereby issued that land parcel number Ngong/Ngong/66 is public land,” she said, adding that the register of the property should be rectified by cancelling the church’s name.
In Umoja II estate, Nairobi, the Redeemed Gospel Church that has been embroiled in a legal tussle with the estate’s association and the county government over the land it has been occupying for 22 years has to vacate to avoid eviction.
Justice Samson Okongo ruled that the church did not acquire the property meant for a community social hall legally, adding that a title tainted with illegality and procedural errors cannot be protected by the law.
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