The Environment and Land Court in Mombasa has declined to strike out evidence detailing fraud that led to the grabbing of the Kenya Airport Authority’s land.
Justice Sila Munyao yesterday dismissed an application by Mombasa tycoon Ashok Doshi to expunge the evidence from court records on claim that it is prejudicial.
The judge noted that the Ethics and Anti-Corruption Commission (EACC), which filed the case to recover the property, is permitted by law to lay bare details of fraud or illegality to prove a case.
“That to me is exactly what the EACC has done in this case. It has proceeded to plead particulars of fraud so as to show that the defense of the applicants is not justifiable. There is nothing wrong with this,” Justice Munyao said.
The ruling means that EACC has been given the green light to provide evidence of the fraud that led to the excising of part of the 1,183 acres of airport land, which was to be used to expand Moi International Airport.
EACC has sued Ali Bunow Korane, former commissioner of lands Wilson Gacanja, Rainydays Ltd, Mr Doshi and Mahesh Doshi.
Mr Doshi and Mr Mahesh were sued because the title of the hived-off property had been transferred to Rainydays, where they are directors.
The two businessmen had asked the court to disallow the evidence, with their lawyer Willis Oluga saying his clients consider the documents filed by EACC offensive.
EACC alleges that the title to the plot was irregularly procured after the land was illegally hived off from the KAA land.
Court documents indicate that the land was procured by Mr Korane in 1992 and a title allocated to him by Mr Gacanja.
Mr Korane then sold the property to Adroit Developers Ltd in 1993. The company then took out a Sh7 million loan from Barclays bank to develop it.
EACC was tipped off and started investigating how the property was allocated to Mr Korane when it was actually part of KAA land.
EACC agent Dedan Okwama told the court that the property has always been public land belonging to KAA.
“The land was to be held by the aerodromes department in the office of the President and commissioner of lands as a public utility and was part of alienated land set aside for public use,” he says in his affidavit.
He said that when title deeds were being prepared after KAA conducted a new survey on the boundaries of the airport in 1996, it was discovered that part of the land reserved for airport expansion had been subdivided into several plots, one of which was allocated to Mr Korane.
The subdivision and issuing of the title deed and subsequent transfer of ownership of the property to a third party was done fraudulently, unlawfully and corruptly, he said.
“It is my testimony that Rainydays Ltd, Ashok Doshi and Mahesh Doshi should be held accountable jointly and severally following the roles they undertook leading to the corrupt and fraudulent alienation of the suit property,” he told the court.
EACC accuses Rainydays and its directors of fraudulently acquiring the property, which was not available for alienation, and for facilitating the duplicitous acquisition of the land.
Rainydays has blamed Mr Korane for any irregularities on the title deed and has issued a notice to him seeking compensation if the court finds that the title was illegally acquired.
