Kenya Anti-Corruption Commission v Vincent Kipkurui Tuwei & another [2020] eKLR:Case Summary

Court
Environment and Land Court at Kisumu
Category
Civil
Judge(s)
S. M. Kibunja, A. Ombwayo
Judgment Date
March 06, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Kenya Anti-Corruption Commission v Vincent Kipkurui Tuwei & another [2020] eKLR


1. Case Information:
- Name of the Case: Kenya Anti-Corruption Commission v. Vincent Kipkurui Tuwei & Sammy Komen Mwaita
- Case Number: E & L CASE NO. 901 OF 2015
- Court: Environment and Land Court of Kenya at Kisumu
- Date Delivered: 6th March 2020
- Category of Law: Civil
- Judge(s): S. M. Kibunja, A. Ombwayo
- Country: Kenya

2. Questions Presented:
The court was tasked with resolving the following legal issues:
- Whether the suit property was available for alienation when allocated to the 1st Defendant.
- Whether the process of allocating and registering the suit land was lawful.
- Whether the Plaintiff suffered loss and is entitled to damages.
- Who should bear the costs of the suit.

3. Facts of the Case:
The Plaintiff, Kenya Anti-Corruption Commission, initiated the claim against the 1st Defendant, Vincent Kipkurui Tuwei, and the 2nd Defendant, Sammy Komen Mwaita, seeking declarations that a lease issued by the 2nd Defendant to the 1st Defendant over Kisumu Municipality/Block 7/521 was null and void. The Plaintiff argued that the suit property was part of a railway reserve vested with Kenya Railways Corporation and that the 1st Defendant had fraudulently procured the lease for private use without the Corporation's knowledge. The Defendants denied these allegations, asserting that the lease was lawfully obtained.

4. Procedural History:
The Plaintiff filed an Amended Plaint on 22nd June 2010, outlining the claims against the Defendants. The 1st Defendant responded with an Amended Statement of Defence on 26th June 2010, while the 2nd Defendant filed their statement of defence on 7th August 2009. The case proceeded to hearing, with testimonies from several witnesses for the Plaintiff, but the Defendants did not present any witnesses or submissions. The court ultimately had to determine the legality of the lease allocation and the Plaintiff's entitlement to damages.

5. Analysis:
- Rules: The court considered several statutes, including the Kenya Railways Act, which stipulates the conditions under which land can be alienated, and the Government Land Act, which limits the powers of the Commissioner of Lands regarding land allocation. The court also looked at Article 40(6) of the Constitution and Section 26 of the Land Registration Act.
- Case Law: The court referenced several pivotal cases, including *Kipsirgoi Investments Ltd v. Kenya Anti-Corruption Commission*, which addressed the legality of land allocation, and *James Joram Nyaga & Another v. The Attorney General & Another*, which discussed the limits of the Commissioner of Lands' powers. These cases supported the argument that the suit land was not available for allocation.
- Application: The court determined that the land was part of a railway reserve and therefore could not be allocated for private use. The 2nd Defendant's failure to verify the land's status before allocation invalidated the lease. The court concluded that the title held by the 1st Defendant was unlawfully obtained and unprotected under the law. The Plaintiff's claim for damages was denied due to a lack of evidence.

6. Conclusion:
The court ruled in favor of the Plaintiff, declaring the lease and registration in favor of the 1st Defendant null and void. The court ordered rectification of the land register to restore the property to the Kenya Railways Corporation and granted a permanent injunction against the 1st Defendant. The Plaintiff was awarded costs.

7. Dissent:
There were no dissenting opinions recorded in this case.

8. Summary:
The court's ruling underscored the importance of adhering to legal procedures in land allocation and reinforced the protections afforded to public land. The decision serves as a precedent for future cases involving fraudulent land allocations and highlights the necessity for due diligence by public officials in land management.

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