EACC recovers Sh55m property from ex-magistrate

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The Ethics and Anti-Corruption Commission yesterday recovered a Sh 55 million government house in upmarket Kizingo, Mombasa.

The Environment and Land Court in Mombasa nullified the 99 lease after finding that the house had been fraudulently and irregularly allocated to a former senior resident magistrate Gilbert Mwangi Njuguna more than two decades ago.

Justice Lucas Naikuni on July also ordered the retired magistrate, a former Commissioner of Lands and three others to pay EACC Sh10 million in general damages for trespass on the public land.

Njuguna, who joined the Judicial Service Commission in 1986, was interdicted in 2006 over misconduct allegations and retired in the public interest in 2008.

The property, measuring approximately 0.1024 acres and housing a high-grade government residence designated HG 53, had been part of a larger parcel, Mombasa Municipality/Block XXVI/243, which the Government had set aside decades earlier for civil servants' housing.

Investigations by EACC established that the property was unlawfully and irregularly allocated to Njuguna through a 99-year lease commencing on January 1, 1998.

According to the judgment, correspondence produced in court shows that senior officials in the Ministry of Public Works and Housing, and even the Cabinet, had explicitly declined to approve the boarding of the house for allocation to Njuguna.

Despite this, the then Commissioner of Lands Wilson Gachanja, issued him a Letter of Allotment on  December 23,1997, followed by a lease and a certificate of lease on March 9, 1998.

In his decision, Justice Naikuni noted that the Green Card obtained from the Land Registry, showing the registration of the lease, bore a telling inscription.

 The judge added that the records that the Green Card bore an inscription "Fraud Suspected," a notation that lent weight to the EACC contention that the alienation was irregular, unlawful, and contrary to the governing statutes.

The court also found that the lease document itself was irregular, as it bore the Commissioner's signature but lacked proper witnessing by the Land Registrar.

On the central question of whether the property had ever been available for private allocation, the judge held that it was public land reserved for government housing, and that no lawful process was ever undertaken to change its use or surrender it for private allocation. 

"Magistrate Njuguna's claim to the property is inconsistent with the constitutional and statutory framework governing public land, and any purported title derived therefrom is incapable of conferring valid rights,"  Justice Naikuni stated.

"On the basis of this cumulative evidence, the Court finds that the suit property is indeed public land reserved for government housing and civil servants' residential use, and that no lawful process was ever undertaken to change its user or surrender it for private allocation." 

The court further found that two other businessmen Jimmy Kimaru Karatu and Yusuf Alimkwiru who separately held a certificate of lease dated September 30,1997 over the same property, had also failed to justify their claim, since this certificate had been procured without a valid Part Development Plan, without a lawful letter of allotment, and without ministerial approval.

Beyond nullifying the titles, the court took the unusual step of holding Gachanja personally liable, ruling that as Commissioner of Lands he owed a fiduciary duty to the public that he breached.

"Public officers who facilitated the deal were guilty of the tort of misfeasance in public office. In this case, the officers acted unprofessionally, in bad faith, ultra vires and in misconduct in public office for willfully facilitating Njuguna to illegally, unlawfully and fraudulently acquiring the suit land," Justice Naikuni held, a finding that they had acted unprofessionally, in bad faith and in excess of the powers conferred by the law on their offices.

Justice Naikuni also found that Eskon Rumwa, the caretaker who was in possession, had no lawful claim to the property despite being in occupation, ruling that the defendants' continued possession, use and occupation of the suit property was unlawful and issuing a permanent injunction restraining him, alongside the other defendants, from dealing with the land in any manner. 

The court directed the Chief Land Registrar and the Land Registrar, Mombasa, to cancel all entries relating to the property, issued a permanent injunction against the defendants dealing with the land in any way, and awarded the EACC Sh10 million in general damages for trespass, plus interest, with costs to be borne by the defendants jointly and severally.

In a statement issued from Mombasa on Thursday, EACC CEO Abdi Mohamud said the recovery reinforced the Commission's resolve to reclaim grabbed public assets.