The axe in the ongoing purge swung the closest to former Prime Minister Raila Odinga when his elder brother Oburu Oginga was fingered on Friday for illegal acquisition of public land.
Ethics and Anti-Corruption Commission Chief Executive Officer (CEO) Twalib Mbarak has announced that they will start de-registering the lease allegedly issued to Dr Oburu in a bid to handover the property worth Sh30 million to the original owner.
This is after the court ruled that the piece of land in Kisumu County constitutes part of the larger land set apart as reserve and vested in the Kenya Railways Corporation (KRC) and was not available for allocation for private purposes.
“In the wake of the presidential directive concerning repossession of the Kenya Railways land and the ongoing construction of the Kisumu Port, this is quite a milestone for the anti-graft body,” Mbarak said.
EACC is to communicate to the Ministry of Lands to revoke the certificate of lease illegally issued to Oburu who the East Africa Legislative Assembly MP.
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On Friday, High Court Judge, Justice Stephen Kibunja ruled that the lease given to Oburu by Mwaita was not protected under Article 40 of the Constitution.
Didn’t award damages
The judge also revoked a title deed issued to Ken Deep Limited. The company is said to have purchased a piece of land worth Sh30 million belonging to KRC from Wilson Gacanja.
The judge noted that the properties belongs to KRC and had been alienated, hence not available for allocation.
“No diligent public officer at the Lands registry and Survey Department, would have processed the allocation and subdivision of the suit land, and the registration of the lease thereof without ensuing and satisfying themselves that the relevant approval, consent and documents had been availed before them,” he ruled.
He further noted that: “The upshot of the evidence tendered by plaintiff (the EACC) is that the entire transaction through which Gacanja allocated the land to Ken Dee Limited, its subdivision, issuance and registration of the lease over the land in the name of the company, was fraudulent, irregular, illegal and procedural.”
He judge therefore ruled: “The title is therefore not protected under the law and the Lands Registration Act. That accordingly, the court finds that the EACC has made a case for the rectification of the land’s register and cancelling the same as per the Act.”
The Judge however didn’t award damages sought by the EACC, saying there is no evidence tendered that the two have been found guilty.
The matter touching on Oburu’s land dates back to 2010 when EACC filed the case accusing him of acquiring the a half-acre piece of land in Kisumu owned by the State Corporation.
Oburu was accused of colluding with Mwaita, now Baringo Central MP, to defraud Kenya Railways of the half-acre of land.
However, Oburu had argued that the EACC had taken too long to prosecute the case.
“The EACC has in their endeavour to show cause, why the suit should not be dismissed, it took time to comply with the requirements of order 11 of civil procedure rules that required total disclosure of the parties’ case by recording, filing and serving the witness statements and documents,” he stated.
However, Justice Kibunja, acknowledged that though the petitioner (Oburu) had shown that the EACC took more than one year to take steps towards prosecuting their case, the explanation offered by the EACC, and the steps so far taken towards complying with civil procedure rules makes the court find and hold that a dismissal order is not the way to go in the case.
In court documents filed by the EACC, Oburu is said to have wrongfully procured the land in 2001.
The land had been surveyed in 1935 and set aside as part of the railway reserve and later handed to Kenya Railways.
In the case that was filed before the Environment and Land court, Oburu and Mwaita who were defendants, challenged the EACC’s move to repossess the land.
The EACC averred that the municipal land was at all material times part of the larger parcel of land vested in the General Manager of the defunct East African Railways an harbours Administration vide L.N. No. 440 of 1963, having been survey and assigned L. R. No 1148/Section LV and set apart as a Railway reserve.
The court found that Oburu wrongfully and fraudulently procured from Mwaita a lease over the land for private purpose that was purportedly registered on February 12, 2001.
A certificate of lease was issued without the knowledge or consent of KRC.
