EACC Wins Court Battle to Recover Ksh25 Million Road Reserve

The Ethics and Anti-Corruption Commission (EACC) has secured the recovery of a public road reserve in Mombasa valued at approximately Ksh25 million following a judgment by the Environment and Land Court.

In a statement on Tuesday, September 29, the Commission said the property, identified as Mombasa Municipality/Block XIX/305, is located along Machakos Road and provides an access route to the University of Nairobi, Mombasa Campus.

"The Ethics and Anti-Corruption Commission (EACC) has secured the recovery of Mombasa Municipality/Block XIX/305, a public road reserve valued at approximately Ksh25 million. The property is situated along Machakos Road and serves as an access route to the University of Nairobi, Mombasa Campus," the statement read.

In a judgment delivered on Thursday, September 24, Justice Yuvinalis Angima found that the parcel formed part of a road reserve and had been illegally and fraudulently alienated in 1994.

"The Court declared the lease and survey plan creating the parcel null and void, ordered the rectification of the relevant land and survey records, and permanently restrained further dealings with the property," the statement added.

The case followed investigations by EACC into the allocation of land reserved for public use. 

According to the Commission, the investigations established that the road reserve had been unlawfully excised from Machakos Road and allocated to the late Ezekiel Luyali, who was then a Councillor at the Municipal Council of Mombasa.

EACC further established that the allocation was irregularly and unlawfully facilitated by David Kalume Randu and Ahmed Mwidhani, who served as Town Clerk and Mayor, respectively.

"The fraudulentallocation took effect from 1st June 1994 and culminated in the issuance of a lease dated 1st September 1994, which was registered on 2nd September 1994," the statement further read.

The court found that the legal procedure prescribed under the Local Government Act, which was then in force for closing a road, had not been followed before the road reserve was alienated.

In particular, the court found no evidence of Gazette notices announcing an intention to close the road, a valid and approved Part Development Plan preceding the alienation, a Council or committee resolution approving the allocation, or approval by the Minister for Local Government of the purported 99-year alienation with effect from June 1, 1994.

The court consequently held that the 1994 alienation was illegal and fraudulent and that EACC had adequately demonstrated its claim for recovery of the property and the consequential reliefs sought.

The court declared the lease dated September 1, 1994, and registered on September 2, 1994, over Mombasa Municipality/Block XIX/305 null and void, finding that it had been issued ultra vires the powers of the second and third defendants and could not confer any interest in the property.

The Chief Land Registrar was directed to rectify the register by cancelling the entries relating to the lease.

The Survey Plan Folio Register (F/R) No. 264/37, which created the parcel, was also declared null and void, with the Director of Survey directed to cancel and expunge it.

The court further issued a permanent injunction restraining the first defendant, his servants, agents and/or assigns from alienating, selling, charging or further charging, leasing, transferring, wasting, disposing of or otherwise dealing with the property.

EACC said the judgment reaffirmed the legal protection accorded to land reserved for public use and the requirement that such land be managed in accordance with the law.

"The judgment affirms that public land reserved for public use must be managed strictly in accordance with the law and cannot be converted to private use through unlawful allocation," the statement noted.

EACC also called on public officers and institutions responsible for public land to comply with the law in the management of public resources.

"The Commission calls upon public officers and institutions entrusted with the management of public land to exercise their mandates within the law and uphold the public interest in the management and protection of public resources," the statement concluded.

Elsewhere, this comes days after EACC obtained a court order requiring a former Homa Bay County Government employee to refund Ksh708,664 after investigations established that she received additional salary payments over a period of more than three years.

In a judgment delivered on September 18, the High Court ordered Evelyne Adhiambo Ogweno, a former medical social worker at Ndiru Hospital Centre in Rangwe Sub-County, and former County Payroll Officer Maurice Ochieng Wambo to jointly and severally refund the money to the Government of Kenya.

In a statement on Wednesday, September 23, EACC said the case followed investigations into multiple salary payments involving current and former employees of the Homa Bay County Government.

"The recovery follows investigations into the payment of multiple salaries to current and former employees of Homa Bay County Government," the statement read.

The inquiry established that Ogweno, who previously worked in the County Department of Health Services, received additional salary payments between February 2015 and May 2018. 

During the period, she received Ksh708,664 over and above her regular salary.

EACC subsequently filed a recovery suit against Ogweno and three former county payroll officials, seeking to recover the additional funds paid through the county payroll system.

"The recovery is part of a series of cases filed by the Commission following investigations into the alleged loss of Ksh42,249,988 through the Homa Bay County Government payroll system," the statement added.