Ethics and Anti-Corruption Commission v Kimaru & 2 others (Environment & Land Case 266 of 2018) [2024] KEELC 3938 (KLR)
The bottom line
#Kenya's anti-corruption watchdog successfully reclaimed a Nakuru government house parcel fraudulently allocated to private buyers, cancelling their lease entirely.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff has locus to institute the present proceedings
- 2.Whether the 3rd defendant has been properly joined in the suit alone, after a long delay and in his personal capacity
- 3.Whether the lease over land parcel No. Nakuru Municipality Block 5/149 issued by the 3rd defendant and the subsequent transfers thereof are null and void and liable to cancellation by this court
- 4.Who ought to meet the costs of the present suit
Key legal issues
#Locus standi of the EACC
The plaintiff has statutory locus to institute the suit under Section 11 of the Ethics and Anti-Corruption Commission Act for recovery of public property.
The claim sought to reverse the alleged unlawful or fraudulent allocation of public property intended for government housing. Section 11(j) of the EACC Act empowers the Commission to institute and conduct proceedings in court for the recovery or protection of public property. The court held the suit squarely within that statutory mandate.
Joinder of the former Commissioner of Lands in his personal capacity
Joinder of the 3rd defendant personally was proper where his acts are challenged as illegal, ultra vires or misconduct in office.
Relying on Pashito Holdings, Chembe Holdings and Judith Marilyn Okungu, the court reasoned that an office only sanctions legal acts; a public officer whose acts are impugned as illegal must answer personally. This also spares incumbents the embarrassment and taxpayer expense of defending a predecessor's clear misconduct.
Validity of the allocation and subsequent transfers of the suit property
The suit property was already alienated public land reserved for civil servant housing; the allotment was null and void ab initio and constituted a fraudulent scheme.
Uncontroverted evidence showed the parcel housed government House No. MG 27 built in the 1950s, occupied by a civil servant paying rent, and never subjected to a board of survey or the 2007 disposal/validation process (cancelled in 2008). Under Sections 2, 3 and 7 of the Government Lands Act the land was not unalienated and the Commissioner lacked power to allocate it; the 1st defendant had no proprietary interest to transfer to the 2nd defendant.
Legal principles established
#- Where the acts of a public officer are challenged as illegal, ultra vires or misconduct in office, he must be called upon personally to answer those charges.
- An action taken by the Commissioner of Lands without legal authority is a nullity - void, not voidable.
- The EACC has statutory locus standi to sue for recovery of unlawfully acquired public property under Section 11 of the EACC Act.
- Alienated public land reserved for public use (civil servant housing) is not available for private allocation absent a proper boarding process.
Court orders
#- 1.A declaration that the allocation and issuance of lease over Nakuru Municipality Block 5/149 by the 3rd defendant and the subsequent transfer from the 1st to the 2nd defendant is null and void ab initio and incapable of conferring any estate, interest or right
- 2.Cancellation of the registration of lease over Land Parcel Number Nakuru Municipality Block 5/149 in favour of the 2nd defendant and all entries subsequent thereto
- 3.A permanent injunction restraining the 2nd defendants, their agents, servants, assigns or any other person from charging, transferring, leasing, wasting, entering, developing, sub-dividing, occupying or dealing in any manner with the suit property
- 4.The Land Registrar Nakuru to expunge all illegal entries on the register regarding the suit parcel and register it in the name of the Permanent Secretary to the Treasury to hold in trust on behalf of the government through the Ministry for the time being for Housing
- 5.Costs of the suit to be borne by the 1st and 2nd defendants only
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 11(j) of the Ethics and Anti-Corruption Commission Act No. 22 of 2011, read with Article 252 and Chapter Six of the Constitution
Relief refused
#Costs against the 3rd defendant (the former Commissioner of Lands)
Although judgment succeeded against the 1st and 2nd defendants, the court ordered costs to be borne by the 1st and 2nd defendants only, excluding the 3rd defendant despite finding the joinder proper and the alienation fraudulent
Costs
The costs of the suit shall be borne by the 1st and 2nd defendant only.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The land was therefore public and was not available for alienation to any person and the purported letter of allotment issued to the 1st defendant was null and void ab initio.
The defendants were clearly without any shame attempting to illegally convert a house built with taxpayers' funds by the government into their own private property in broad daylight.
A declaration is hereby issued declaring that the allocation and issuance of lease over land parcel number Nakuru Municipality Block 5/149 by the 3rd Defendant and the subsequent transfer from the 1st defendant to the 2nd Defendant is null and void ab initio and incapable of conferring any estate, interest or right in either the 1st or the 2nd defendant;
The Land Registrar Nakuru shall expunge all the illegal entries on the register regarding the land known as Land Parcel Number Nakuru Municipality Block 5/149 and it shall be registered in the name of the Permanent secretary to the Treasury to hold in trust on behalf or the government through the Ministry for the time being for Housing;
The costs of the suit shall be borne by the 1st and 2nd defendant only.
where the acts of a public oficer have been challenged as illegal, ultra vires or misconduct in ofice, he must be called upon as a person to answer those charges
Issues in the judgment
#Defendant names are not given in the header of the judgment; the 1st and 2nd defendants are referred to in the narrative variously as Jim Choge, Kiptum Choge and Byron Choge, and the 3rd defendant as the former Commissioner of Lands without his name being printed in the extracted text. Party names above are reconstructed and should be verified against the cause title.
The judgment's summary of the plaint describes the suit property as alienated to the 1st defendant while elsewhere it says the lease was registered in the name of Jim Choge; the relationship between the 1st defendant and Jim Choge/Kiptum Choge is not fully reconciled in the text.
The judgment recites that the 2007 validation idea 'fizzled out soon thereafter in 2009' but elsewhere records the cancellation advertisement as dated 30/07/2008 (and the plaint says 28/07/2008).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethics and Anti-Corruption Commission v Kimaru & 2 others (Environment & Land Case 266 of 2018) [2024] KEELC 3938 (KLR)", Case Analysis (2024). Nakuru ELC Case No. 266 of 2018 (NKR ELC 266/18). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3938/eng@2024-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.