A case against former Commissioner of Lands Wilson Gachanja and two others over the allocation of public land worth Sh30 million in Kwale county collapsed after witnesses exonerated them.
An analysis of the ruling shows the 10 prosecution witnesses capitulated during cross-examination by the defense team led by lawyer Philip Nyachoti, and gave absolving evidence in the matter touching on the piece of land allocated to a politician, the late Boy Juma Boy.
"The court finds the prosecution failed to prove the charge of aiding and abetting against the accused as no evidence was availed to show collusion between the accused persons and Boy Juma Boy," Mombasa Chief Magistrate Martha Mutuku ruled.
In her 76-page ruling, the trial magistrate said Gordon Odeka, "who appeared to be the prosecution's strongest witness," testified that he could not fault the accused persons.
Odeka said in his testimony that former Commissioner of Lands Wilson Gachanja moved to revoke allocation of the land after he got information that it was a beach access roadway before investigations began.
Gachanja, former Kwale senior Lands officer Zablon Mabea and former physical planner Jabu Salim were charged with facilitating the acquisition of public land in Kwale to a private developer.
The land was an access road described as Kwale/Diani Beach Block number 1072, valued at Sh30 million. It runs from Kona Ya Beach Road in Ukunda to the beach.
According to court, the land was earlier allocated to former Kwale Senator Boy Juma Boy on January 1, 1994, and transferred to Galerius Investment Limited for a term of 99 years.
On March 23, 2018, the Ethics and Anti-Corruption Commission (EACC) started investigating how Galerius Investment acquired the land after it was established it was a public road.
An EACC officer, Samuel Murage, told the court the Director of Public Prosecution (DPP) decided that the three be charged on June 7, 2022, for allocating the land to Galerius.
"In 1994, a survey to provide a new grant was prepared in favour of Maembe Fishermen and Residential. The very portion was later allocated to Boy Juma Boy," said Murage.
Boy later wrote to the Commissioner of Lands, with the view of transferring the land to Galerius Investment Limited despite the existing six-month caveat against the change of ownership.
"The land was transferred within a month. In this case, the transfer was done within less than one month. Galerius bought the land for Sh6 million," Murage told the court.
He said the parcel was a public road, it had not been degazetted, no public participation and no action was taken to secure it.
"Galerius started paying rates like any other land owner, and that is when the public realised that they would not access the beach, and their sentiments were raised," said Murage.
He also admitted that after the public raised complaints, Gachanja imposed restrictions after he got information that illegality was committed in the process of the allocation.
He said the directors of Galerius Investment Limited, Bragadu Bara Patel, Mina Patel, Ashallamar Patel, and P Patel were innocent buyers.
EACC said the first accused, Mr Jabu, was charged because he prepared a suspicious Part Development Plan (PDP), while Mabea, who was the second accused, prepared the allotment letter.
Mr Murage, who was the anti-graft body's lead investigator, said that the third accused person, Gachanja signed the certificate of the lease.
"The Commissioner (Gachanja) asked the company to surrender the title for cancellation. He must have realised that there was a problem and that they ought to remedy the problem," Murage said.
Mr Jabu said the prosecution acted in bad faith by adducing half-baked evidence and ignoring the critical ones that could have laid to rest the issue before it reached the court.
"... what the prosecution failed to tender in evidence was that the first accused person (Jabu) vide letter dated June 14, 1994, forwarded the PDP and comments from the different government multi agencies who indicated that they had no objections of the PDP," said Jabu.
Mabea said he issued the letter of allotment to Juma Boy on the understanding that all other due processes had been followed.
"His actions cannot be deemed as misuse of his power or authority as a senior lands officer in charge of Coast Province to the prejudice of Kwale County Government," his lawyer said.
Mr Gachanja said that all the prosecution witnesses confirmed that he could not reasonably be expected to know the exact position on the ground in every part of the country.
The Mombasa Chief Magistrate struck off the three charges of abuse of office, willfully neglecting official duties, and aiding the commissioning of a felony against the three.
"The court finds that the prosecution failed to prove the last three ingredients against the accused persons herein as the evidence provided does not show arbitrary decisions which prejudiced the County Government of Kwale," said Ms Mutuku.
She said the evidence provided before the court shows that the accused persons acted in their respective capacities concerning the subject property and Boy Juma Boy, but not Galerius.
"In particular, PW8, who appeared to be the prosecution's strongest witness, testified that he could not fault the accused persons but that the process was erroneous," she said.
Adding that: "Other witnesses such as PW3, the surveyor, in reliance of the map, carried out his mandate to submit a report that was relied upon by the third accused person to discharge his duty."
"Moreover, the actions of the second accused, who tried to rectify the error that occurred during the allotment process is not indicative of a collision which is the key ingredient of aiding and abetting."
