alexa Legal loophole helps grabbers in land theft - Daily Nation

Legal loophole helps grabbers in land theft

Thursday May 23 2019

land

Some criminals are exploiting gaps in the Land Registration Act 2002 to defraud legal land owners. ILLUSTRATION | NATION MEDIA GROUP 

BRIAN OCHARO
By BRIAN OCHARO
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ANTHONY KITIMO
By ANTHONY KITIMO
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Land grabbers have perfected the use of Land registration loopholes to steal prime plots in the country.

Lawyers are working closely with land surveyors to identify idle land and apply to the High Court for an order to be registered as proprietors.

The cartels are taking advantage of the gap in the Land Registration Act 2002, Section 38, which allows anyone to apply for registration after occupying a land for more than 12 years uninterrupted.

The Nation has learnt that the grabbers, in cahoots with land officers, identify unoccupied land, then put up a structure and later file a case in court claiming to have occupied the plot for more than 12 years in the hope that they will automatically become the lawful owners by way of adverse possession.

The new revelation comes amid cries to have a judge, presiding over a case where three people have laid claim to a parcel of land, recuse herself from the case over claims she might not deliver justice.

NYALI LAND

The Sh75 million piece of land located at Fourth Avenue behind City Mall in Nyali has been a subject of court cases since 2017, with at least four individuals having filed a suit seeking to be declared the legal owners of the property by way of adverse possession under pretext they have occupied it since 1994.

The claimants have sued Mr Joash Adamba, the lawful registered owner of the property. He has however not appeared in court for any of the cases to defend himself.

Justice Charles Yano had in December last year dismissed an application by Mr John Kibe who also laid claim to the land through adverse possession.

The judge said Mr Kibe's evidence did not support possession for more than 12 years.

RATES

According to a search conducted on May 16 last year, Mr Adamba is the plot's registered owner, a fact that has not been contested by the claimants.

The search document showed the property had a leasehold of 99 years effective from April 1, 1979. Mr Adamba was paying land rent of Sh1,200 annually.

It has now emerged that a Malindi businessman is believed to be behind the court cases as he attempts to possess the land "lawfully".

The latest claimant is a famous Mombasa auctioneer who has gone to court seeking to be declared the rightful owner of the property with claims that he has lived on the property for years.

Mr Joel Musya claimed he was given a grant number in 2009. This was despite the latest search indicating that Mr Adamba is still the registered owner and the title has not been transferred.

In court documents, Mr Musya claimed he had been paying land rates and had been residing on the disputed land for more than 17 years. "I have been in occupation of the suit land continuously openly, adequately and uninterrupted and above all adversed the title of the defendant," he said.

DEVELOPMENT

In yet another incident, Mr Paul Omolo, another claimant, also joined the case as a necessary party claiming adverse possession under a case filed on January 30, this year.

He claimed he had been in possession of the disputed property for more than 20 years and had been paying land rates.

Mr Ongidi claimed he had built a wall, borehole and two permanent buildings on the land.

Another claimant, Ms Pamela Ogola, also claimed she had been living on the suit land for more than 12 years, hence she was entitled to be registered as its owner.

Ms Ogola said she was born in Kisumu in 1980 but moved into the suit land in 1998.

"While entering the premises, I did not seek authority from Mr Adamba, who is the registered owner of the property," she said.

FRAUD

Mr Adamba said in a court document that Mr Musya has been installed in the suit property by some county officials to fraudulently acquire it.

He said the property was inherited by two squatters who were not part of the proceedings and occupied a portion of it, adding that Mr Musya had never inhabited the land.

Justice Ann Omollo, presiding over the matter, consolidated the three cases.

At the same time, two right groups — Genesis For Human Rights and Commission for Human Rights — and their directors Caleb Ng’wena and Julius Ogogoh want the judge to withdraw from the case citing undue influence.