Former Lands ministry official loses bid to own public land
The Court of Appeal has dismissed a case by a former senior official of the Ministry of Lands who had claimed ownership of a 101-acre plot in the Kijipwa Settlement Scheme in Kilifi County.
The land is occupied by locals.
The Court of Appeal also ruled that there was no merit in an appeal by Mr James Mbandi, who sought to overturn an order by the Environment and Land Court (ELC) declaring that the land was intended for residents.
Mr Mbandi was a director in the department of settlement in the ministry.
Justices Gatembu Kairu, Pauline Nyamweya and Jesse Lesiit also said that Mr Mbandi had the burden to prove that he had a good title to the land beyond dangling the document as proof of ownership.
“The ELC judge cannot be faulted for the conclusions he made, as the appellant, who had the burden of proof failed to meet the legal obligations,” the appellate court ruled.
The court also noted that Mr Mbandi had the evidential burden to show that he acquired the title to the land in a regular and lawful way but did not adduce any evidence to show how he acquired it, how it was allocated and through which process.
It also said that even without considering the omission by Ministry of Lands officials to file any defence or adduce any evidence by virtue of their role in the adjudication, allocation and issuing of the title, it was incumbent upon Mr Mbandi to prove the genuineness of his title considering that it had been challenged.
“It is therefore clear that the appellant obtained the title to the land in an opaque manner,” the judges said.
Through their lawyer Farida Jadi, the residents lauded the court for its decision confirming the orders of the ELC, which declared that the land was intended for residents.
“We appreciate the Court of Appeal for its decision, the residents can now breathe a sigh of relief and continue with their daily activities without any problems,” said Ms Jadi.
In his appeal, Mr Mbadi sought to have the entire ELC judgment set aside and an order allowing his case against the residents with costs.
Mr Mbadi had argued that the ELC erred by failing to appreciate the effect of a first registration and failing to give reasons why it failed to determine the validity of an agreement to move squatters to one side of the land.
However, Ms Jadi told the court that the title issued to Mr Mbandi was erroneously registered in his name, arguing that he was a civil servant working in the lands office as director of settlement and was aware that the land was public property.
The ELC had dismissed Mr Mbandi’s case while upholding a counterclaim by the residents, who wanted the suit dismissed.
Justice James Olola also issued a permanent injunction restraining Mr Mbandi from dealing with or interfering with the residents' quiet use, enjoyment and occupation of the land.
Mr Mbandi, who was also seeking damages for loss of the use of the land, claimed that he was the registered proprietor of the land Kilifi/Kijipwa/96 and accused the residents of illegally entering it and building structures.
The residents told the court that they have been in continuous possession of the land without interruption for more than 60 years with the full knowledge of Mr Mbandi.
They say the land is their ancestral property and that in 1982 they engaged the government on their need to be securely settled on it and other neighbouring parcels, leading to the declaration of Kijipwa Settlement Scheme.
They said that as they awaited allocation and registration of various parcels, they were surprised to learn that Mr Mbandi had been allocated the land and registered as its owner. BY DAILY NATION
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