Lands court finds Helb obtained title deed through fraud, declares them trespassers

A general view of the Nairobi Railways Headquarters in the CBD, Nairobi. [Elvis Ogina, Standard]

Higher Education Loans Board (Helb) has been holding a title deed to a prime property grabbed from Kenya Railways for 24 years, the Lands court has found.

The orders of the court were a major blow to Helb, which intended to build its offices and commercial buildings on the land.

Justice Oscar Angote ordered the Lands registrar to cancel Helb's ownership documents to the property situated in Upper Hill, Nairobi, as they were obtained through fraud.

He observed that from the land records, the property was clearly alienated for the government.

However, Justice Angote said the same land was illegally transferred to Paul Koinange who then sold it to Helb.

The judge declared that Helb was a trespasser and ordered it to vacate the property.

"This court therefore agrees with the second plaintiff that the Commissioner of Lands acted illegally and fraudulently, contrary to the provisions of the repealed Government Lands Act (Cap 280), when he purported to allocate and to issue a Grant over the suit property to Paul Koinange t/a Hardy Playland. Consequently, the title issued over L.R. 209/13515 being Grant No. I.R. 76614 is invalid and thus null and void," ruled Justice Angote.

The judge was of the view that at the time Helb bought the property, it was aware that Railways employees were living in houses built on it.

At the same time, he said that Helb could not hinge its claim to the property as an innocent purchaser.

"Nothing done under a defective title can qualify for protection under law for the reason that it is null and void. Consequently, the transfer emanating therefrom to the 1st Defendant could not pass good title or at all because Paul Koinange t/a Hardy Playland had no title to give to begin with, even to an alleged innocent purchaser," he said.

The two government agencies were embroiled in a vicious court battle, with Kenya Railways arguing that it never authorised or consented to have the contested property transferred to Helb.

On the other hand, Kenya Railways argued that the contested property was allocated to it in 1986.

The state corporation asserted that the property was to be allocated to Railways employees in consideration of their value of pension.

Railways said that the property was first transferred to a third party and then ended up with Helb.

It argued that the board was in the process of demolishing the houses.

Railways asserted that it never sold the contested property to anyone. It lamented that Helb had locked it out of the property.

Railways asked the court to order Helb to pay for the 24 years it claimed ownership of the land and cancel the title.

But Helb argued that the disputed land claimed by Railways was different from the title it was holding.

It also argued that the gazette notice that Railways was depending on was unclear and referred to an unspecified part of the land.

Further, the agency said that Railways had admitted in its case that it had been occupying the property.

Helb said it had purchased the property after conducting due diligence with a view to putting up offices and for rental of the surplus.

It argued that Railways was aware that the Commissioner of Lands chose the Upper Hill land for subdivision and allocation for the construction of Helb offices.

Helb also said that it took over the property without resistance from Railways and had occupied it without interruption.

During the hearing, Railways called its acting legal services general manager as a witness.

He said that Helb was fraudulently and unlawfully attempting to take over its property.

The witness asserted that the land was swapped to a debt owed to Railways employees as it had no money to pay accrued pension debt.

Justice Angote heard that Railways learned of Helb's title in 2001 and it urged the Commissioner of Lands to cancel it.

Railways argued that the fraud must have happened in 2000 and was perpetrated by government officials.

The corporation argued that Helb was aware that the land belonged to it as there were people leaving in the houses.

"Land reserved for a particular public purpose is not available for further alienation. Such reservation need not be by way of a title, or deed plan alone. The presence of a building put up by a government entity for its use, like in this case, suffices," argued Railways.

Helb did not call any witnesses.