The Ethics and Anti-Corruption Commission (EACC) has recovered parcels of land forming part of the scenic Chale Island in Kwale county belonging to the government which it says were fraudulently hived off.
It successfully prosecuted and won a case it had filed at the Environment and Land Court where it sought an order directing the land registrar in charge of Kwale to rectify the (land) register by cancelling all entries related to the issuance of the titles over the parcels of land on the Island.
Justice Addraya Dena sitting in Kwale ruled that Chale Island is not available for allocation and that EACC had on a balance of probability proved its case against the defendants.
The defendants were Ms Manhoman Kalsi, Mr Hashim Got, Kwale District Land Registrar, Settlement Fund Trustee (SFT), David Ndirangu, Mohamed Omar, Mohamed Hamisi, Halima Mohamed and Swahili Beach Resorts Ltd.
Justice Dena issued a declaration that the entry registering SFT as the initial proprietor of title numbers Kwale/Kinondo Chale/103, Kwale/Kinondo Chale/118, Kwale/Kinondo Chale/119 and Kwale/Kinondo Chale/146 on March 7 2003 was null and void ab initio (from the beginning).
She further issued a declaration that titles to parcels of land issued to Mr Ndirangu, Omar, Hamisi and Ms Mohamed and subsequent transfer to Ms Kalsi was null and void.
The court further issued an order directing the Kwale Land Registrar to rectify the register by cancellation of all entries relating to the issuance of the titles in respect to parcels of land made to Ms Kalsi.
Justice Dena also ruled that the respondents had not tendered any tangible evidence leading to the conclusion that the Island ceased being a forest before the land was allocated to SFT.
“The court finds that without the degazettement, the notices earlier issued declaring the island a monument and a marine reserve were still valid,” said Justice Dena.
She added that the Island was therefore not available for allocation and that its allocation to SFT was illegal.
The court noted that during oral testimonies it was clear that the Legal Notices No. 200 of 1992 did not confer ownership of the Island to National Museum and that it (court) agrees with the position.
“It is my view that the point that has been missed in this argument is the preservation of the Island for a public purpose and benefit. It is this preservation that conferred ownership to the public and therefore made the Island not available for allocation to private individuals,” ruled Justice Dena.
An aerial view of Chale Island in South Coast.
Photo credit: File | Nation Media Group
She said that it was not about ownership of the Island by NMK and whether the gazettement was an overriding interest but the preservation for a public purpose that was the focus and which was the ownership to the public.
The judge further ruled that it was her finding that STF and Mr Ndirangu, Omar, Hamisi and Ms Mohamed could not pass valid title.
Justice Dena said that the setting up of a (settlement) scheme extension appear to have been orchestrated to dish out land and which Ms Kalsi was ironically strategically available to purchase 39 of the plots.
“Where is the first defendant (Kalsi) bonafides or innocence in proceeding to buy land that she admitted she understood was for settlement of squatters and landless?” asked the Judge.
Justice Dena said she was not persuaded that Ms Kalsi was an innocent purchaser for value without notice.
The judge further noted that Mr Got, a former ministry of lands official in Kwale, effected the registrations un-procedurally and that it did not matter that he came at the at tail end of the process.
“To me, he is culpable on the illegalities attributed to him, had he been diligent at the tail end of the process which was also critical probably we would not have been here,” ruled Justice Dena.
The judge further said that the lease of part of the land to Swahili Beach Resorts Ltd was obtained after the gazettement of the Island thus the claim for legitimate expectation cannot stand.
Tourists relaxing on the beach in Chale Island.
Photo credit: File | Nation Media Group
“Based on the foregoing I find no basis for sustaining the lease entered between the second interested party (Kenya Wildlife Service) and the ninth defendant (Swahili Beach Resorts Ltd),” said Justice Dena adding that it was issued irregularly.
The judge further issued a permanent injunction against Ms Kalsi restraining her and her agents from taking possession, trespassing upon, developing transferring leasing charging or in any other manner dealing with the parcels of land.
They are registered as title numbers Kwale/Kinondo Chale/103, Kwale/Kinondo Chale/118, Kwale/Kinondo Chale/119 and Kwale/Kinondo Chale/146 otherwise than by way of surrender or transfer to the government.
The court’s decision will apply in 32 other cases where the anti-graft body sued various individuals seeking to recover parcels of land which the court heard were hived off the Island.
EACC had told the court that Chale Island is a culturally and ecologically sensitive habitat that enjoys protection.
“The Island was preserved as a monument of historical and cultural interest and an area of land requiring maintenance, thus a protected area,” part of the suit documents stated.
EACC said that the Island together with surrounding waters of the Indian Ocean having been gazetted and reserved as a monument and a marine national reserve was not available for allocation.
It says that in disregard of Gazette Notices, the island was subdivided, registered and the parcels transferred to various individuals as registered owners as an extension of the Kinondo Chale Settlement Scheme.
According to EACC, the defendants acquired portions of the Island for private use without following any lawful or statutory process to change use from Gazetted Chale Island Sacred Groove and a Marine National Reserve.
The court also dismissed a counterclaim filed by Ms Kalsi who sought a declaration that the island is not a Kaya or sacred grove and has lost its status as a national heritage site.
