Former Commissioner of Lands' tainted past haunts him

Former Commissioner of Lands Sammy Mwaita is a man under siege as his tainted past continues to haunt him.

Mwaita served as the commissioner between 2000 and 2003. In his capacity, Mwaita had the authority over the allocation, alienation, and administration of public land.

His tenure was, however, marred by numerous allegations and legal findings linking him to the illegal and irregular allocation of public land to private individuals and entities.

READ ALSO: Ex-Lands Commissioner Sammy Mwaita charged in Sh300 million Nairobi land fraud 

In multiple cases, the courts have found that Mwaita’s actions, ranging from signing allocation letters, approving leases, and facilitating the issuance of titles, were undertaken without legal justification, in contravention of the law, and often in collusion with private developers.

Consequently, courts have revoked or cancelled various titles issued illegally, and in some judgements, he has been held personally culpable for abuse of office.

Recently, Mwaita was charged in a Sh300 million land fraud in Nairobi.

Mwaita, also a former Baringo Central MP, appeared before Milimani Chief Magistrate BenMark Ekhubi, where he denied six charges, including conspiracy to commit a felony, abuse of office, making a document without authority, and giving false information to a police officer.

He is accused of conspiring with Brian Kiptoo Kiplagat to fraudulently make a grant title, Land Reference No. 209/9968 IR. No. 85847, without lawful authority, with the intent to defraud two Nairobi businesspersons, Rose Njoki King’au and Micugu Wagatharia.

Mwaita denied the charges and was released on a bond of Sh10 million or a cash bail of Sh2 million, with two contact persons.

READ: Businessman charged alongside Mwaita in Sh300m land fraud case

The Ethics and Anti-Corruption Commission has been leading the recovery of the public property that the former Commissioner of Lands allocated to private developers.

In the year 2023, the High Court declared the allocation of a prime property worth Sh50 million in Mombasa, belonging to the Kenya Civil Aviation Authority (KCAA), to a private developer irregular, fraudulent, and illegal.

The court, in a case filed by EACC, ruled that the suit property, a four-bedroomed bungalow and a servant quarter, was illegally allocated to Luka Kimutai by Mwaita in the year 2000.

EACC had sued Luka Kimutai and his wife, Sally Cheptoo; Toro Estates Ltd, a company owned by the couple, who were both the company’s directors; and Mwaita.

On May 9, 2023, Lady Justice Nelly Matheka faulted the Commissioner of Lands for having breached public trust when he illegally and fraudulently transferred public land entrusted under his care to private persons.

In her judgement, Lady Justice Matheka said that she was convinced by the submissions of the Ethics and Anti-Corruption Commission EACC that, having been alienated as public land, the suit property was not available for conversion to private land, and as such, the actions of the Mwaitas were illegal, null, and void.

“A declaration that the allocation of the property to Kimutai by the Commissioner of Lands and subsequent issuance of lease was irregular, fraudulent and illegal, and consequently null and void,” said Justice Matheka.

She ordered rectification on the land register by cancellation of title and all entries made on the land register in favour of Kimutai and subsequent transfer to the company.

The judge also issued an order of preservation and a permanent injunction against Toro Estates Ltd, restraining it from leasing, transferring, charging, taking possession, or any other manner whatsoever except by way of transfer or surrender to the Kenya Civil Aviation Authority.

Efforts by Mwaita to stop the EACC from prosecuting matters filed in the Environment and Lands Court, and where he is named as a defendant. Mwaita cited 17 cases the Commission was pursuing at the time.

In the suit, Mwaita claimed that he was acting in stated matters under his lawful mandate as the Commissioner of Lands and asserted that he made various grants and dispositions of land and estates vested in the Government in favour of third parties as Register General of Land under the Registration of Title Act and as Principal Registrar of Government Land under the Government Land Act (both repealed). He also cited instances where he had been penalised for paying damages.

His application was, however, dismissed.

On February 16, 2023, Judge Lucas Naikuni ruled in favour of the Commission in a suit for recovery of property known as a parcel of land belonging to the Kenya Civil Aviation Authority.

The court further issued orders and ordered the cancellation of the title issued to Bernsoft Limited, Equitronics Limited, and Mwaita. The three were also ordered to pay the general damages and mesne profits for a sum of Sh30 million for the loss of use of the suit property covering the period of the 22 years they had been in its illegal possession.

The court ruled that Mwaita was responsible, finding on his part liability, abuse of office, and breach of the tort of misfeasance in office, and condemned him to personally pay Sh5 million.

“An order is hereby made for the 3rd (Mwaita) Defendant herein, by then duly appointed as the Commissioner of Lands in the Ministry of Lands and Settlement, a public officer, to personally pay a sum of Kenya Shillings Five Million (shs5,000,000/=) for the liability, abuse of office and breach of tort of misfeasance in office within the next sixty (60) days from the date of the delivery of this Judgement hereof,” ordered the court.

In another case filed in the Lands Court in Kisii, EACC sued Kemuma Anunda and Mwaita in the court for recovery of a parcel of land known as KISII BLOCK 3/437, where a Certificate of Lease was issued illegally in favour of Anunda.

Mwaita, in the case, failed to file a defence, and the court found that he did not offer any evidence to controvert the accusation against him regarding his actions while serving as the Commissioner of Lands.

The court found that his actions were fraudulent and illegal, and it did not hesitate in holding him liable for misfeasance in public office, as he acted in breach of the public trust bestowed upon him. He was ordered to pay Sh1 million.