The Ethics and Anti-Corruption Commission (EACC) secured a significant victory in court as it pursued the recovery of illegally appropriated public assets, reclaiming a prime parcel of government land valued at Sh35 million.
The contested property, parcel number Bungoma Township/169, adjacent to the Bungoma State Lodge, had been unlawfully acquired and developed by a private individual.
Judith Nekoye had demolished a government-owned house on the land and replaced it with a private residence.
Presiding at the Environment and Land Court in Bungoma, Justice Enock Cherono declared the entire chain of transactions leading to Ms Nekoye’s ownership to be fraudulent, illegal and devoid of any legal standing.
“A declaration be and is hereby issued that the Certificate of Lease registered in favour of Charles Nyasani and Scolastica Nyakerario over parcel of land known as Bungoma Township/169 was fraudulently obtained, is null and void, and incapable of conferring any interest to the plaintiff (Ms Nekoye) or any other person whatsoever,” stated Justice Cherono.
The court held that the lease issued to Ms Nekoye on October 24, 2016, had been fraudulently procured and was, therefore, invalid in law.
According to court documents, Ms Nekoye purchased the 0.18-hectare plot in the affluent Milimani Estate of Bungoma Town in 2016 for Sh5.1 million from Charles Osioma Nyasani and Scholastica Nyakerario Osioma. The sellers had reportedly acquired the land in 2004.
Ms Nekoye told the court that she had conducted due diligence prior to the purchase. She cited a letter dated September 8, 2016, which indicated that the government had no claim over the property. Relying on this, she proceeded to register the land in her name, demolish the existing government house, and erect a high-end residential building - now valued at Sh30 million - with approvals from various government agencies.
However, her sense of security began to unravel on February 27, 2020, when she received a letter from the EACC summoning her for an interview and the recording of a statement in connection with the property.
Ms Nekoye would later argue in court that the EACC’s insistence on her surrendering the land and providing ownership documentation infringed upon her constitutional rights. The anti-graft body, however, maintained that it was acting squarely within the law in its mission to recover public land.
Represented by advocate Ruth Ayunga, the EACC presented compelling findings showing that the land had been reserved by the government in 1961 for the construction of residential housing for senior public servants.
Crucially, the EACC contended that Ms Nekoye was fully aware of the land’s public designation at the time of acquisition.
The original lease, granted to Mr Nyasani and Ms Nyakerario under the name Nyasco Enterprises of Bungoma, was found to be highly irregular. The court was informed that although a 2008 circular from the Ministry of Housing had initially allowed for the disposal of some non-strategic government properties, that directive was later rescinded - a development known to the lessees.
Justice Cherono ruled that the government's continued possession and oversight of the land demonstrated that it had never relinquished ownership or control.
“Where the government continued to exercise dominion over the land and its developments, it becomes evident that the certificate of lease issued could not have been intended to, nor did it in fact, vest the lessees with effective proprietary rights,” he observed.
In a decisive move, the court not only annulled Ms Nekoye’s claim to the property but also issued a permanent injunction barring her from selling, leasing, mortgaging, subdividing, or in any other way dealing with the disputed land. She was further ordered to vacate the premises forthwith.
“An order of eviction is hereby issued directing the plaintiff, her servants, agents, or assigns to vacate Bungoma Township/169,” ruled Justice Cherono.
The judge instructed the Bungoma Land Registrar to cancel the fraudulent Certificate of Lease and to amend the official land records accordingly.
The ruling represents a watershed moment in the EACC’s intensified efforts to recover unlawfully acquired public land. The Commission revealed that it is currently pursuing 16 additional prime parcels in Bungoma suspected to have been fraudulently alienated.
In the wake of the court’s decision, the EACC issued a stern advisory to members of the public.
“Let this serve as a cautionary tale: public land belongs to all Kenyans. Its illegal acquisition will not go unchallenged,” the Commission stated.
