Three judges have handed disputed prime plots to Kakamega Primary School with a population of over 2,800 pupils even though a supermarket and private developer had started constructing a high-rise building on the properties.
Justices Mumbi Ngugi, Patrick Kiage and Francis Tuiyott said Yako Supermarket and Sudhir Khetia held illegal claims to Kakamega Town Block 11/292 and 11/252 after they were duped to buy them from third parties knowing very well they belonged to the public school.
The judges found no fault in the National Land Commission's (NLC) action of initiating a process of repossessing the land on behalf of the school in the heart of Kakamega town, even as Yako and Khetia felt it was an infringement.
"The NLC properly exercised its mandate in finding that the plots were public property reserved as a playing field for Kakamega Primary School. It was not available for allocation. The trial court properly found that Yako and Khetia did not exercise due diligence before entering into transactions in respect of the properties, and they were not bona fide purchasers for value who would get protection under section 14(7) of the National Land Commission Act," said the judges who sit in the Appeal Court of Kisumu.
The judges supported the judgment by the land court in Kakamega which observed that the plots were illegally alienated into private property and later sold to the two developers.
The judges equally held that the plots were public utility land that could not be sold, and the purported allocation to the third parties who later sold them to Yako and Khetia was irregular and unlawful.
"Your (Yako and Khetia) rights to property under Article 40 as read with Article 60 (1)(b) of the Constitution was not infringed in any way by the decision made by the NLC to recommend the revocation of your titles," the judges ruled.
Yako and Khetia purchased the prime plots from Michael Odwoma and Kito Pharmaceuticals Limited on February 5 and August 20, 2011.
But on February 17, 2012, the Registrar of Lands in Kakamega issued a gazette notice revoking their titles after members of the public raised the red flag. This resulted in the developers moving to court to challenge the decision.
Justice Juma Chitembwe, then a judge in Kakamega, ruled in their favour saying the Land Registrar had no powers to revoke the developers' titles and his decision was therefore null and void.
The school community took to the streets to protest the decision especially when the two developers moved in and started developing the land thus denying the learners space to play and socialise. The protests prompted the NLC to initiate a probe, and it found they belonged to the public.
The case wound up before Justice Nelly Matheka of the Land Court, Kakamega who on July 29, 2020, ruled that the developers illegally acquired the plots and they revert to the school.
Disgruntled, the developers appealed before the three Kisumu judges, arguing that their right to property was violated as they bought the plots legally and even had titles to show for it. They also argued that the NLC order that they surrender the two plots back to the school was unconstitutional.
"The NLC has no jurisdiction to inquire into the validity of our titles, to hold us as having unlawfully acquired the suit plots, and to hold that the suit plots were public property which had been allocated to Kakamega Primary," they said in their court papers.
