I write as we mourn Principal Magistrate Hon Monica Kivuti. Monica was shot while dispensing justice. My condolences to the family, and the legal fraternity. We must always remember that advocates, magistrates and judges, along with other judicial officers, are our humble servants. They serve to ensure a sound justice system. Let’s therefore respect their decisions, and court premises. Where aggrieved by matters touching on them, let’s use available appeal mechanisms. Forwards, Monica’s death should trigger the enhancement of security in courts for judicial officers and users.

Allocation to KANU and Executive Order

Let me get back to KICC, the Kenyatta International Convention Center. Early this month, the Environment and Land Court ruled against a petition by the Kenya African National Union (KANU), our independence political party, seeking to recover KICC. KICC was allocated to KANU in 1989. KANU was then under the Chairmanship of President Daniel Arap Moi who, along with Peter Oloo Aringo, served as its trustees. But it was taken over by government through an executive order during President Mwai Kibaki’s regime. KANU had therefore petitioned seeking a declaration that it’s the registered owner of the plot, and that the government had unlawfully acquired it. KANU sought orders directing the government to give vacant possession, and seeking compensation following the unlawful acquisition.

After presentations by the petitioner and respondents, Justice Jacqueline Mogeni of the ELC served judgement. She found that KANU’s title was obtained illegally, unlawfully and without following legal procedure. It was a nullity ab initio. KANU’s title was therefore revoked. Justice Mogeni subsequently issued a declaration that the lawful owner of the property is the Ministry of Tourism. Her ruling to ELC Petition No E025 of 2020 contains the details. It serves good lessons.

Adherence to allocation procedure and law are key

One is that the ELC continues to diversify jurisprudence, providing bold rulings to land disputes. The ruling demonstrates the need to embrace due process in obtaining title to land. KANU was for instance unable to provide evidence of the processes leading to the issuance of its title. A more humbling lesson is to those bent on using high office to influence land allocation, against established procedure and law. KICC’s transfer to KANU happened when our 2^nd president, and one of his Cabinet Ministers, were the party trustees. Put through judicial examination, this allocation to KANU has collapsed. Let’s beware that titles issued irregularly are prone to revocation, time and might of the actors involved notwithstanding.

Good records count

Moreover, good records, and competent technical witnesses, are invaluable. During presentations, the government building surveyor presented compelling evidence from a government buildings’ register, with details of the period and amount of exchequer funds used to construct KICC. This exposed it as a public asset. The government physical planner contextualized the positioning of KICC within a “Government Square”, in keeping with the 1948 Nairobi City Master Plan. He further elaborated the meaning of “public purpose” under our planning legislation, revealing the anomaly in allocating a public asset to KANU, a private entity.

Dated: 20th June, 2024