A judge has struck out an application seeking to block the Ethics and Anti-Corruption Commission (EACC) from recovering more than 10 acres of land allegedly grabbed from a public school by the late Nathaniel Tum, the former managing director of the Kenya Seed Company.
Justice Christopher Nzili dismissed an application by an administrator of the estate of Tum, saying the case filed by the EACC to recover the land should proceed to a full hearing.
Edwin Kipchirchir Tum, an administrator of the estate of the late Kenya Seed boss, had argued that the case was time-barred because it was filed 29 years after the land was allocated to the deceased.
He also submitted that a similar case seeking to recover the contested land was dismissed by the High Court in 2011, and the decision was upheld by the Court of Appeal.
But Justice Nzili rejected the application, stating that the issues raised in the previous suit were different from those raised in the current matter.
“The issues raised herein were not determined on merits and finality by the former courts. Therefore, it cannot be true that the plaintiff (EACC) is re-opening for fresh litigation, issues or matters that were concluded in the merits and to finality in the former suits by a court of competent jurisdiction,” said the judge.
The anti-graft body alleges that the contested land belonged to Kitale School and that Tum was the chairman of the Parents’ Teachers Association (PTA).
The school had occupied the land since 1929 without a title deed, and Tum, as PTA chairman, had volunteered to help it secure the document.
However, he allegedly took advantage of his position and allocated the land to himself, and built a petrol station, a cafeteria, a rental house and a supermarket.
In his application, Mr Kipchirchir argued that the issues of ownership had been settled and that the land was lawfully allocated and a title deed issued to Tum in 1994.
He also asked the court not to extend interim orders blocking the estate from charging, selling or transferring the land.
Mr Kipchirchir added that there were leases on the disputed land to third parties, who were not parties to the case.
According to him, the anti-graft body was seeking to re-litigate the same matters.
But, the EACC said the issues of illegal or irregular acquisition of the land were never litigated and determined with finality.
It added that the court had allowed some activities such as rental houses, a petrol station, a car wash and a supermarket to operate pending the application.
The court heard that the reliefs sought in the earlier case were specific and the application was not a substantive suit allowing parties to plead irregularity or fraud, adduce evidence, and invite the court to adjudicate on material issues to determine with finality if the land was public, legitimacy of the process of acquisition and legitimacy of the title deed.
“The application and the preliminary objection by the 1st defendant (Kipchirchir) dated 12/1/2024 are dismissed with costs to the plaintiff,” said the judge.
