Court dismiss application challenging repossession of land allegedly transferred to former Nairobi official’s spouse
The Appellate court has dismissed an application to suspend a case filed by the Ethics and Anti-Corruption Commission (EACC) to have the repossession of Sh500million land on Valley Road that was fraudulently transferred to a former city council official’s spouse.
A three judge bench dismissed an application by Kuria Gathoni saying he has not shown special circumstances to warrant the suspension of the proceedings filed by the anti-graft body.
“Neither has he demonstrated that the proceedings in issue are frivolous, vexatious or harassing, are manifestly groundless, or that the 1st respondent’s (EACC) case discloses no cause of action,” Justices Hannah Okwengu, Kibaya Laibuta and John Mativo said.
Kuria moved to the Court of Appeal after the Environment and Land Court issued orders blocking him from selling or charging the two-acre parcel of land.
The land is currently used as a car bazaar and EACC says it was set aside for staff housing of the defunct City Council.
In the petition, EACC says that former chairman of the defunct City Commission of Nairobi Habib Omar Kongo and Kuria, the former Director of Planning and Architecture in the then city council fraudulently transferred the property to Rose Wambui Kuria.
However, Kuria’s wife opposed the case saying she is the lawful owner of the property, having acquired it in the required procedure and paid Sh508,000 to the then Nairobi city commission.
She also argued that she has been in possession of the land for more than 30 years and plans by EACC to recover the land had been overtaken by time.
She said that she did not discretely solicit for its transfer and registration as alleged by the EACC.
EACC had also asked the court to compel Kuria’s wife to deposit the money she collects from the car bazaar in court pending the outcome of the case.
The application was however declined.
The anti-graft body has accused the two former officials of diverting a public resource for the unjust enrichment of individuals by transferring the land to Kuria’s wife for private use.
According to court documents, the transfer was illegal as it was done without the consent of the Minister for Local Government contrary to section 144 of the Local Government Act and without a resolution of the full council.
“There was neither full Council resolution nor the requisite Ministerial consent to vary the terms of the grant in respect of the subject property,” EACC states in the court documents.
Further, EACC says the fraud was not discovered until an investigation was undertaken in 2012 and despite being notified of the intention to sue them, they have allegedly refused to surrender the property to the government, leaving the anti-graft body with no option but to move to court.
EACC also wants her compelled to surrender profits she has made from the land since 1992 and damages for alleged fraud.
