The Kenya Revenue Authority (KRA) has been given a reprieve after the Environment and Lands Court declared it the legal owner of a piece of land in Mombasa, which was also claimed by an individual and charged to a bank for a Sh42 million loan. .
Justice Nelly Mathika directed the Chief Land Registrar to issue a new grant in favor of KRA as the legal and rightful owner of Land Reference mainland North/1/2415, in Mombasa, where the tax collector has developed a three-bedroom bungalow for his senior staff.
The judge ruled that the property had been given to the government for use by the Customs and Excise Department, the predecessor body to the KRA, in the property over which it had acquired irrevocable interests and rights.
“At all material times the suit property was in the possession of the Customs Department and was not available for assignment to any party. Approved Plan No. 38 dated February 1975 shows that the property was indeed allocated to the Customs Department.”
Justice Mathika said the KRA and the Customs Department had acquired the property since 1975 and had used it over the years to house some of their senior staff.
KRA has filed suit against Mr. Othman Saeed, National Bank of Kuwait, Joseph Gikonyo who trades as Garam Investments auctioneers, the Chief Land Registrar, and the National Land Commission.
The court agreed with KRA’s submission that the then Land Commissioner did not have the authority to issue developed public lands.
“It has not escaped this court that the property was investigated under the Ndongo Commission of Inquiry into Public Lands. I find that the first defendant (Mr Saeed) does not have a valid address and cannot deal with it in any way,” Justice Mathika ruled.
The taxman told the court that he was the registered owner of the land and the house built on it which was part of his staff quarters known as the Bamburi Sr estate.
KRA said that Mr Said claimed ownership on the basis of a grant issued to David Ndongo on 18 February 2003, a registered transfer in his favor (Mr Said) on 5 July 2005, and that the grant had been obtained in a non-procedural manner. Public lands were also developed.
Mr. Saeed denied all allegations and said that he had purchased the plot of land registered in his name, and that the cancellation of the grant by the Land Registrar was considered null and void.
He asserted that the charges were brought fraudulently and that he had never executed any charging document requiring the filing of a complaint to the Central Police Station.
In his counterclaim, which was dismissed, he asked them to issue orders declaring him the registered owner of the property and issuing an eviction order against KRA.
The National Bank of Kuwait had told the court that the land was registered in Mr. Saeed’s name and that the first charge against it (the land) was dated March 19, 2015, and a change from it was dated September 18, 2015, to facilitate a loan worth Sh42 million. .
The bank argued that it was not true that it had failed to exercise due diligence because it had obtained the certificate of title, land lease clearance certificates, valuation report, physical site visits and approval to collect fees from the Land Commissioner.
NBK told the court that if Mr Saeed’s ownership was fraudulent, they were not involved in his acquisition of it.
The court also informed that the longer he (the bank) was prevented from realizing his securities, the greater the amount of debt due and outstanding.
The court issued a decision to cancel the lawsuit on March 19, 2015 in favor of the National Bank of Kuwait, which was registered against the land on April 8, 2015.
Justice Mathika also made a declaration that the change of charge dated September 18, 2015, in favor of NBK and registered against Land on September 25 of the same year, was quashed.
The judge also issued a permanent injunction restraining the defendants from selling, disposing of, interfering with or dealing with the land in any way.
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