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ELCAllowedELC Miscellaneous Application No. E002 of 2021· [2021] KEELC 1564 (KLR)

Ethics and Anti-Corruption Commission v Omar Sheriff Mohammed [2021] KEELC 1564 (KLR)

Environment and Land Court
1 October 2021
2,245 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's anti-corruption agency can freeze land it reasonably suspects was grabbed from public use, even if the current owner bought it innocently.

What this practically means

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Executive summary

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The Ethics and Anti-Corruption Commission moved the Environment and Land Court at Garissa by a motion dated 15th June 2021 under section 56 of the Anti-Corruption and Economic Crimes Act seeking a six-month preservation order over Garissa Block III/503, initially part of Garissa Block III/438. An investigator's affidavit showed the parcel was originally part of the District Cooperative Headquarters, designated a public purpose under Garissa Development Plan No. 17, but was irregularly allocated to private individuals by the plot allocation committee in June 1998 without due process; the Ministry of Lands had no records of an approved basis for creating the parcel. Ex parte preservation orders issued on 17th June 2021. The Respondent opposed, asserting he purchased the property in 2003 from Omar/Osman Mahat as a bona fide purchaser for value, that the 1998 committee followed due process, that the committee members were not enjoined, and that his constitutional rights to property under Articles 40 and 65 were infringed. The court framed two issues: whether the Commission established the reasonable-suspicion threshold of corrupt acquisition, and whether the preservation orders infringed the Respondent's rights. Relying on section 56 ACECA and EACC v Noyasu Construction Company Limited, the court held the Commission need only show reasonable suspicion, found it undisputed that the land was formerly public property allocated to private persons, and upheld the orders, allowing the motion as prayed and validating the conservatory order for six months from 1st October 2021.

Key legal issues

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01

Whether reasonable suspicion of corrupt acquisition of Garissa Block III/503 was established

Holding

Yes - the property was formerly public land designated for the District Cooperative Headquarters and its allocation to private individuals without due process raised reasonable suspicion

Reasoning

The court found it undisputed that the suit property belonged to the District Cooperative Headquarters before allocation to private persons. The 1998 minutes showed the plot allocation committee resolved to grant land earmarked for a public purpose to private individuals, and the Physical Planning office had no record of approval changing the designation. Investigations were ongoing, and preserving the property was reasonable to prevent the contemplated recovery proceedings being rendered nugatory.

p. 4
02

Whether the preservation orders infringed the Respondent's rights

Holding

No - Article 40 protection does not extend to property unlawfully acquired, and the Respondent's bona fide purchaser claim did not displace the reasonable suspicion

Reasoning

The court noted the applicant's supplementary affidavit that rights under Article 40 do not extend to unlawfully acquired property and that title in the hands of an innocent third party can be impugned if obtained illegally, unprocedurally or through a corrupt scheme. The Respondent's due diligence and purchase from Osman Mahat did not cure the irregularity in the original allocation of public land.

p. 2

Legal principles established

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  • Under section 56(1) ACECA, a preservation order may issue where there are reasonable grounds to suspect property was acquired as a result of corrupt conduct
  • The Commission need only establish reasonable suspicion, not proof, at the preservation stage

Court orders

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  1. 1.The Notice of Motion dated 15th June 2021 is allowed as prayed
  2. 2.A preservation order prohibiting and restraining the Respondent, his agents or servants from constructing, transferring, disposing of, wasting or in any other way dealing with the parcel of land known as Garissa III/503 (initially part of Garissa III/438)
  3. 3.The conservatory Order to be valid for six (6) months commencing from the date of the Ruling

Authorities

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Legislation

  • Anti-Corruption and Economic Crimes ActSection 56(1)
  • Anti-Corruption and Economic Crimes ActSection 56(4)
  • Anti-Corruption and Economic Crimes ActSection 56(5)
  • Ethics and Anti-Corruption Commission ActSection 11(d) and (1)
  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 65
  • Constitution of Kenya, 2010Article 252(1)(a) and (d)
  • Land Registration Act No. 3 of 2012Sections 23-26

Cases cited (7)

  • Ethics and Anti-Corruption Commission v Moses Kasaine Lenokulal & Another
    [2019] eKLR
  • Emmanuel Suipenu Siyanga v R
    (2013) eKLR
  • Farooq Imtiaz Mohamed Malik v Director of Police Investments & 3 Others
    [2018] eKLR
  • Ethics & Anti-Corruption Commission v Noyasu Construction Company Limited
    [2021] eKLR
  • Koinange & 13 Others v Koinange
    [1986] KLR 23
  • Kuria Kiarie & 2 Others v Sammy Magera
    (2018) eKLR
  • Central Bank Kenya Limited v Trust Bank Limited & 4 Others
    [1996] eKLR
Jurisdiction invoked
Section 56 of the Anti-Corruption and Economic Crimes Act No. 3 of 2003; Article 252(1)(a) and (d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ethics and Anti-Corruption Commission v Omar Sheriff Mohammed [2021] KEELC 1564 (KLR)", Case Analysis (2021). ELC Miscellaneous Application No. E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1564/eng@2021-10-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.