The Ethics and Anti-Corruption Commission (EACC) has won a crucial early victory in a land recovery suit after the Environment and Land Court froze dealings involving two prime Nairobi parcels allegedly converted from public land into private ownership through a questionable allocation process.
In a ruling delivered last week, Justice Mohammed N. Kullow barred Dayan Construction Company Ltd, its agents and anyone acting on its behalf from transferring, leasing, charging, developing or otherwise dealing with LR No. 19952/4 and LR No. 19952/5 until the main suit is determined.
The orders followed an application by the EACC, which accuses Dayan Construction, Geoffrey Majiwa and Omar Abdi Farah of participating in an allegedly fraudulent process that saw land earmarked for public use end up under private ownership.
The parcel’s market value is estimated to be over KSh 100 million, according to the EACC.
Judge Spots Troubling Timeline
At the heart of the dispute lies what the judge described as a glaring chronological inconsistency.
According to the EACC, the disputed parcels originally formed part of LR No. 19952, owned by Pillar Amusement Park.
The Commission says the company surrendered the two portions to the then Nairobi City Council for public use, transforming them into public land that could no longer be lawfully allocated to private entities.
Yet, Justice Kullow observed, documents presented before the court appeared to tell a different story.
The allotment letter issued to Dayan Construction allegedly came before Nairobi City Council itself had acquired the land from Pillar Amusement Park.
That sequence immediately raised judicial eyebrows.
“These are questions that challenge the process of issuance of title and need to be ventilated at trial,” the judge ruled after examining the competing documents.
That observation ultimately marked a pivotal moment.
Rather than deciding ownership, the court concluded the discrepancy raised sufficiently serious legal questions requiring a full hearing.
Public Land or Private Property?
Dayan Construction mounted a robust defence.
The company argued that it holds registered titles protected by Article 40 of the Constitution and the Land Registration Act, insisting the EACC had not proved fraud.
Its lawyers maintained that allegations surrounding the acquisition process remain contested issues suitable only for a full trial, not an interlocutory application.
They further argued that granting the injunction would effectively curtail the company’s proprietary rights before evidence had been fully tested.
The EACC countered that registered ownership alone cannot sanitise an allegedly unlawful acquisition.
Instead, the Commission argued the court had a constitutional duty to preserve assets suspected of having been irregularly converted from public ownership until their legality is determined.
Justice Kullow ultimately agreed.
Citing the celebrated Giella v Cassman Brown principles governing injunctions, the judge held that the anti-graft agency had established a prima facie case with a probability of success.
“A prima facie case does not mean a case that must succeed,” the judge observed, emphasising that only serious triable issues needed demonstration at this preliminary stage.
Protecting Taxpayers’ Interests
The court placed considerable weight on the EACC’s constitutional mandate.
Justice Kullow noted that the Commission exists principally to protect public resources from corrupt acquisition.
If the parcels were ultimately found to have been fraudulently obtained, he observed, Kenyan law would require them to revert to government ownership.
Without preservation orders, however, the land could easily change hands before judgement.
“The suit properties, if not preserved by this court, will be exposed to danger of disposal and dissipation,” the judge ruled.
He added that taxpayers might never recover the land if transactions proceeded unchecked before the case concluded.
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That finding persuaded the court that irreparable harm had been sufficiently demonstrated, making it unnecessary to examine the balance of convenience test.
The result was sweeping preservation orders restraining Dayan Construction from undertaking virtually any transaction involving the disputed properties pending determination of the substantive suit.
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