A former judge has gone to court challenging a decision by some Ministry of Lands officials purporting to cancel a title to his prime parcel of land in Mombasa on the basis that it has been reserved for a school.
Mr Said Juma Chitembwe accuses the officials, including those from a state lands agency, of violating his rights by taking his land and awarding it to Mombasa Parents Club (Nyali Primary & Kindergarten) without compensation.
In his petition at the Environment and Land Court in Mombasa, Mr Chitembwe argues that there is no evidence that the land had been reserved for a school.
Through lawyer Augustus Wafula, Mr Chitembwe says that the respondents have violated his right to sue and occupy land as envisaged under Article 40 of the Constitution by purporting to issue Mombasa Parents Club a parallel title to a parcel of land he holds.
Mr Chitembwe has sued the National Land Commission, Cabinet Secretary for National Treasury, Chief Land Registrar, Land Registrar, Attorney General and Mombasa Parents Club.
He has since secured an interim conservatory order restraining the Land Registrar from cancelling his title to the land until the next court appearance.
Mr Chitembwe says that he is the owner of the land (Plot No Subdivision No.11277 (Original number 10074/1) Section 1 Mainland North) having purchased it from the then registered owners Idris Hussein Mohamed in 2004.
Mr Chitembwe is seeking a declaration that he is the owner of the land and also wants a permanent injunction issued restraining the respondents and agents from interfering with his ownership, occupation or title to his land.
The former High Court judge says he has been in occupation of the land from 2004, has massively invested in it and that he is an innocent purchaser of the land without notice whose rights to the property are protected under the constitution.
He claims that that sometime in 2022, Mombasa Parents Club lodged a complaint regarding the land with NLC alleging that it was allocated the land in 1990’s for the development of a school and requested for an inquiry to establish the legality or otherwise of his title.
“The first petitioner (Mr Chitembwe) avers that the first respondent (NLC) invited parties to an inquiry on January 2022 and after hearing, it was required to make a determination within a reasonable period of time,” the petition states in part.
According to Mr Chitembwe, NLC has not rendered its decision on the matter since January 19 2022 and that the failure by the commission to render the decision has violated his rights.
Mr Chitembwe says that in a twist of events, it has come to his knowledge that NLC, Cabinet Secretary for Treasury, Chief Land Registrar and the Land Registrar have purported to issue another title to Mombasa Parents Club in respect of the same land he owns.
This, the petitioner says is without prior cancellation of titles he holds and others thereby creating illegal parallel titles to the same piece of land in total violation of principles of legality.
Mr Chitembwe says that it has come to his knowledge that the Chief Land Registrar vide a letter dated April 14 directed the Land Registrar to cancel his title without according him a hearing in total violation of his right to a fair hearing.
The former judge says that the NLC, Cabinet Secretary for National Treasury, Chief Land Registrar and Land Registrar have no authority or power to cancel his title without according him a fair hearing and that any purported cancellation, if any, is null and void.
Mr Chitembwe argues that the respondents have violated his right to use and occupy land and also a right to fair administrative action by failing to render a decision in respect of the Mombasa Parents Club complaint heard on January 19 2022 and then purporting to issue a title in respect of the land, the subject of the complaint.
“The respondents have acted illegally in purporting to cancel the first petitioners title on the basis that it had been reserved for a school when there is no evidence of any such reservation,” argues Mr Chitembwe.
He says that the respondents have breached national values and principles of governance by occasioning the registration of fictitious and illegal title in favour of Mombasa Parents Club.
This, he says exposes him to substantial loss especially when he relied on records maintained by the respondents to purchase the land from previous owners.
Mr Chitembwe also wants a declaration that the Mombasa Parents Club title held by the CS National Treasury is null and void and wants it cancelled.
Justice Yuvinalis Angima directed the case to be mentioned on July 14 for direction on the disposal of an application for conservatory orders and the petition.
