Monday, June 27, 2011

Former MP stops State's attempts to take land





Updated 1 hr(s) 3 min(s) ago
By Wahome Thuku
In November 1993, Kiambu politician Kuria Kanyingi bought 16.8 hectares of land in Tigoni, Limuru, Kiambu District from Riangi Estates Company for Sh13 million.
The transfer was registered under his company, Kuria Greens Ltd and he was issued with a title deed on December 21, 1993. Kanyingi, who became area MP in 2002, developed the property into a tea estate with more than 110 employees and their families residing there.
On November 26, 2010, the Government published a Gazette Notice revoking titles for 14 parcels of land in Tigoni, Limuru, claiming the land allocated to private developers had been reserved for State Corporation, Kenya Agricultural Research Institute (Kari). One of the parcels was the 16.8 hectares owned by Kuria Greens Ltd. On December 21, 2010, Kanyingi sued the Registrar of Titles and the Commissioner of Lands in Nairobi.
He sought orders to have the Gazette Notice quashed and the two State officials or their agents prohibited from interfering with the land.
Through lawyer Fred Ngatia, the former Limuru MP sought orders restraining them from issuing any title and or licence or registering any im-pediments on the land and further order to compel them to delete any entry on the title.
He also asked the court to declare the revocation of the title unconstitutional, null and void and that his company was the absolute and indefeasible owner of the suit property. He also sought damages and costs of the suit.
DEPENDANTS
The matter went before Nairobi Judge Daniel Musinga. On January 13, 2011, the Attorney General filed a Memorandum of Appearance for and on behalf of the two respondents. The court directed him to file his response within 14 days. By May 12, 2011 when the petition was heard, the AG had not filed any response in the matter.
Kanyingi told the court that his company had all along paid land rates to the Commissioner of Lands. "The investment is a source of livelihood for all the 110 employees and their dependants," his lawyer submitted. By then the land was valued at more than Sh80 million.
Ngatia said before the gazette notice was published, his client had never been informed of any intention to revoke the title and neither had there been any communication from the Government on the matter after the purported revocation.
He contended that the respondents had no legal power to revoke the title. He further submitted that the purported revocation was illegal and amounted to taking private property without compensation.
"They made a decision to expropriate the petitioner’s land without according him an opportunity to be heard," lawyer Ngatia said. He claimed his client’s right to own property guaranteed under Article 40 of the Constitution and right to fair administrative action under Article 47(1) had been violated.
Justice Musinga had no difficulties concurring with Kuria Greens on all the submissions. First, he pointed out that in the Gazette Notice, the Registrar had not indicated the law under which he had revoked the Certificate of Title.
"Was that an omission?" the judge queried, then replied, "I do not think so. This is simply because there is no provision under the Registration of Titles Act or any other Act that bestows on him or the Commissioner of Lands or the Government power to revoke a registered title in the absence of a court order to that effect," he said. Musinga went on, "I have carefully searched the Land Titles Act, the Registration of Titles Act, the Indian Transfer of Property Act, the Government Lands Act, the Registered Lands Act and the Land Control Act and I did not come across any provision that grants power to a Registrar of Titles or the Commissioner of Lands to arbitrarily revoke a valid land title," he offered. He held that the Registrar had acted beyond his powers and the action was unlawful. "The revocation was a violation of Kanyingi’s right under Article 40 of the Constitution and that amounted to State taking of the petitioner’s property without compensation contrary to Article 40(3)," the judge stated.
CONCLUSIVE EVIDENCE
He further observed that under Section 23 of the Registration of Titles Act, a Certificate of Title issued by the Registrar to any purchaser of land is to be taken by all courts as conclusive evidence that the person named therein as the proprietor of land is the absolute and indefeasible owner. The title of such owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party.
"Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title," Musinga said. Even assuming there was fraud or misrepresentation in alienating the land to the original registered proprietor, Kuria Greens was not party to it, the court held.
"The petitioner lawfully purchased the suit land from Riangi Estates Limited and obtained all the necessary consents and invested heavily on the suit land, Musinga said, adding that the court would be failing in its constitutional duties if it failed to protect citizens from acquisition of their property through unlawful decisions by State officers.
COMPULSORY ACQUISITION
If the respondents were satisfied the land had been unlawfully alienated and that it was in public interest that it reverts to the State or to Kari, they would have given appropriate notice to Kuria Greens, then start compulsory acquisition process and compensate the company or file a suit challenging the title and wait for determination. The judge said the Registrar should have given Kuria Greens an opportunity to explain how it had acquired the land.
On June 14, the court granted Kuria Greens the orders sought. It declared that revocation of the land’s title was unconstitutional, null and void and further declared that Kuria Greens’ title was conclusive evidence of ownership and the company was the absolute and indefeasible owner of the land.
The judge also ordered the Registrar and the Commissioner of Lands to pay costs of the petition to the company.

The writer is a court reporter with
the Standard Group
Email: wthuku@standardmedia.co.ke
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