The Environment and Land Court in Thika has ordered that public land that was illegally allocated to a Catholic Church in Ruiru be surrendered back to the public and the title deed issued to the church revoked.
The land in which the court revoked the title was occupied by Capuchin Franciscan Fathers who had commenced development of the land, having built structures for a hospital and school.
Two petitioners Samuel Wainaina and Anne Kimani had moved the court on behalf of Mwalimu Farmers Owners Association seeking orders to declare that the transfer and allocation of land parcel No. Ruiru East Block 3\244 issued to the registered trustees, Capuchin Franciscan Fathers Kenya, was illegal.
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They also sought a cancellation order of the title held by the church and correction of the register removing its name and replacing it with officials of the association.
Through the firm of Njenga Mbugua & Nyanjua Advocates, the petitioners also wanted a declaration that the land parcel belongs to Mwalimu Farm Owners Association and the same should be held in trust by its officials for public use.
The petitioners, Wainana who is chairman and Kimani the secretary of the association, averred that at the time of its establishment, the teachers' association owned 1,100 acres in Juja, which some part was surrendered to the government and duly allocated for public utility.
Through their lawyer, Wanza Kivindu, they further averred that the suit property was among the properties set apart for a public utility for the construction of primary and secondary schools.
That the petitioners learned that the church trustee intended to alienate the suit property for personal use albeit for construction of a school.
In their petition, the association averred that the National Land Commission(NLC) had called for a hearing with regard to the suit property at Thika Townhall and it was adjudged that the suit property belonged to Mwalimu Farm Owners Association, to hold in trust for the benefit of the community of Mwalimu Farm.
Further, that in contravention of the said ruling made during the public hearing, NLC issued a Gazette Notice dated July 17, 2017, allocating the suit property to the church and the Land Registrar, Thika then issued a title deed to the church.
It was their contention that the suit land was at risk of being disposed of to other parties or converted to private use, which would be detrimental to the community and members of Mwalimu Farm Owners Association.
It was their further contention that the right to public land as guaranteed by the constitutional provisions they relied on have been violated by the illegal, unlawful and irregular allocation of the suit property to the church by converting it to private use to their detriment.
Further, the petitioners queried the circumstances under which the suit property was allocated to the church and upholding the title had not been disclosed.
They averred that the church trustees’ acts were a gross violation of Articles 10, 61(4) and 35 of the Constitution.
The church, however, through the firm of Ngatia & Associates opposed the petition through Brother Joseph Sifuna Bukanja and averred that the church is the owner of the suit property.
The church in its response also averred that in 1983, one Salesio Njuki Munwameru purchased L.R Ruiru/ Block /2533, comprising six acres from Mwalimu Investment Company (now known as Mwalimu Farm Owners Association) for Sh12,480.
That on February 28, 1983, the church made an Application to the Company to be allocated a parcel of land.
He further averred that the church’s representative, Father Caesar appeared before the Board of Directors and the company informed them that the church had been allocated 10 acres of land for Sh50,000.
He further averred that on August 31, 1994, the church executed the transfer of land form and paid the stamp duty and it was issued with title deed for L.R Ruiru/Ruiru East Block 3/2700, on September 29, 1995, for the 16 acres of land.
The church enjoyed quiet possession until 2008, when the company informed it that L.R Ruiru/Ruiru East Block 3/2700, was earmarked for public utility being the construction of a bridge.
It was his contention that the company had willfully concealed the material fact and in admitting its error, the company proposed to swap L.R 3/2700, with the suit property to the church to which it conducted due diligence and took possession and was issued with a title deed on August 29,2011.
However, in a judgement delivered by Justice L. Gacheru, the judge noted that the Mwalimu Investment Company Limited had mandate and authority to sell the property being L.R 3/2700.
No party has disputed that the church initially owned the property which they swapped but said the swap was unlawful. Therefore, it is only proper given that the land is not being used, then the same should be returned to the legitimate owners.
In its judgement, the court noted that the land in which the church was currently occupying after being swapped was public land and the same was not for allocation to any party.
