The Ethics and Anti-Corruption Commission (EACC) has gone to court in its bid to recover a parcel of land valued at Sh70 million in Shanzu, Mombasa County.
The commission claims the property was reserved for construction of government houses.
The authority has sued one Mehasani Hatibu Mwinyihaji and the Chief Land Registrar, whom it claims jointly facilitated and participated in a corrupt enterprise with the aim of fraudulently acquiring public property from the government.
According to the EACC, a letter of allotment was issued to one Mehasani Hatibu Mwinyihaji in respect to the land measuring approximately 0.4 hectares, before a 99-year lease from 1999 was granted.
Through lawyer Francis Makori, the EACC claims that at all times, the defendants were aware that the parcel was public land unavailable for alienation outside the Government Lands Act and Registered Land Act, which have since been repealed.
The commission says Mr Mwinyihaji had knowledge or ought to have known, through due diligence, the defects of the title issued to him so he assumed the risk of all legal consequences.
The anti-graft agency says that relevant survey plans for reservation of the land for the houses were deposited at the survey records office at Survey of Kenya and were available to the public.
“The defendants shut their eyes to the obvious and failed to make inquiries for fear of getting the correct information,” it says in suit papers.
The anti-graft body further argues that the chief land registrar, as a public officer, was negligent, thus leading to illegal and fraudulent acquisition of the land to the detriment of the government.
“It is the plaintiff’s case that it is within the tenets of public interest that the acquired public property by the first defendant (Mwinyihaji) be promptly recovered and returned to the government,” it says in its suit papers.
The EACC also argues that the actions and omissions of the defendants jointly led to wrongful interference with public land and material loss of user rights by the government.
The anti-graft agency also says that despite issuing a demand and a notice of intention to sue, the defendants have refused to make amends and surrender the property’s title.
The suit papers also note that the land has been rendered unavailable for use and benefit to the public, and that the purported issuing of the lease to Mr Mwinyihaji was void from the beginning.
The anti-graft agency wants a declaration that the issuing of a letter of allotment, registration of the lease and issuing of a certificate of lease in favour of Mr Mwinyihaji were fraudulent from the beginning.
It is also seeking a declaration that the parcel of land be vested in the government and an order for the land registrar and Mombasa land registry to rectify the register by cancelling entries relating to the parcel of land.
The EACC is also seeking general damages from the defendants for wrongful interference with public land and the fraudulent manner in which they allegedly dealt with it.
Justice Anne Omollo declined to issue a temporary injunction to restrain Mr Mwinyihaji from dealing with the land.
She directed that the suit documents be served to the defendants and set November 12 as the date for hearing an application for the grant of temporary orders of injunction.
[COUNTIES] EACC files suit to recover Sh70m land for govt houses: The authority wants a declaration that the land acquisition processes were fraudulent. https://t.co/KQIwUhvCMB
— Breaking News (@News_Kenya) October 3, 2018