The National Land Commission (NLC) has lost its attempt to recover a prime piece of public land from the family of former Head of Civil Service Joseph Leting, highlighting the difficulty of reversing some of the controversial Moi-era decisions.
The Muhammad Swazuri-led commission had been investigating how Mr Leting acquired the land in Nairobi’s Upper Hill, now valued at more than Sh450 million with a view to repossessing it.
But the Leting family moved to court for orders stopping the commission from continuing with the investigation, insisting former President Daniel arap Moi had allocated the former bureaucrat the land.
High Court judge George Odunga has granted the family’s prayer and blocked the NLC from investigating the title deed for the 0.8-acre piece of land Mr Leting acquired in 1988 after paying the Commissioner of Lands Sh49,946.
Mr Leting then proceeded to build 19 apartments on the land, raising its value to more than Sh450 million at current market prices.
Mr Leting completed construction of the flats in September 1991 when he was issued with a certificate of occupation. But the Kenya Railways Staff Retirement Benefits Scheme later filed a complaint with the NLC seeking to know how Mr Leting acquired the land.
The pension scheme claims that it owned the land before it was irregularly allocated to Mr Leting who was at the time one of the most powerful men in the country and a close ally of Mr Moi.
Mr Leting died in November last year.
The NLC in February this year began an inquest into how Mr Leting acquired a letter of allotment for the land, prompting the family to seek the court’s intervention.
Justice Odunga found that the contested piece of land was registered as private land in November 1988, ruling out the NLC’s intervention.
The NLC’s mandate is restricted to dealing with issues relating to public land.
The judge held that in cases where land has already been classified as private, only the land courts can allow a review of the disputed property’s ownership.
“It is, however, my view and I so find that though land which was unlawfully acquired does not confer a good title and is not protected under the Constitution, where the land in question has acquired the status of private land, it is only the Environment and Land Court that has the jurisdiction to investigate and determine the legality of such title,” Justice Odunga said.
The court held that the 1988 transaction between Mr Leting and the Commissioner of Lands appeared genuine hence there was no reason to revoke its current status as private land.
Allowing the NLC to proceed with the probe would amount to rubberstamping authority that the Swazuri-led agency does not have, Justice Odunga ruled.
“I do not agree that the commission may arbitrarily decide to investigate a title unless it has credible reasons for believing that there is an impropriety in the title, and it is those grounds that ought to be furnished to the persons who are bound to be adversely affected by the investigations,” he said.
The Leting family held that the NLC has never furnished them with a copy of any complaint regarding their ownership of the land, and that the agency had refused to give them details of the probe.
Justice Odunga’s ruling has also had the effect of redefining the NLC’s jurisdiction in his finding that the agency cannot investigate land that was already classified as private before the agency was created by the Constitution on August 27, 2010.
Justice Odunga ruled that any complainant such as the one by the Kenya Railways pension scheme in the Leting case, can only challenge such title deeds in the Environment and Land Court.
The NLC has in the past insisted that Kenya’s land laws allow it to probe private land in instances where categorisation has irregularly switched from public to private use.
The Kenya Railways pension scheme has over the past few years lodged several complaints to the NLC about land it claims was irregularly transferred from its possession to private individuals.
The pension scheme claims to have lost a lot of land in the early 1990s during Mr Moi’s time in power.
The 2004 Ndung’u Report on land reforms listed Kenya Railways as one of the biggest losers of assets under the Moi regime.
The report said land worth Sh1.49 billion was either sold for a pittance or given to individuals for free by altering records at the land registry. It estimated that Kenya Railways lost 109 pieces of land in a similar manner.
The British High Commission in Nairobi, the Japanese Embassy, and the Seventh Day Adventist Church were listed as beneficiaries of such transfers.
Another High Court judge, Weldon Korir, in February stopped the NLC from probing title deeds relating to a separate piece of land in Upper Hill that the Kenya Railways pension scheme had claimed.
Justice Korir issued the order after East Africa Investment Trust Limited (EAITL) went to court seeking protection from the NLC. The land currently houses Kenya’s tallest building — Rahimtulla Towers.
EAITL says it bought the land in 1992, hence it could not be the same parcel the pension scheme was claiming.