Timeless Properties Limited loses seafront land in Mombasa

The Court of Appeal has reverted back grabbed land belonging to the Technical University of Mombasa (TUM) that was illegally sold off to Timeless Properties Limited developers.

The institution told the court that the disputed land has a creek which fronts the sea line and that it used to run marine engineering-related academic courses from the early 1950s when it was known as Mombasa Polytechnic on the portion fronting the sea where a boathouse still stands.

TUM said that it intended to revive teaching of the course in the building in 2009 when it discovered an attempt to illegally acquire the suit land that stands on a creek.

The state university said the suit was created after the receding of the sea level, which portion forms part of the seafront of its property.

Justices Francis Tuiyott, Kibaya Laibuta and Ngenye Macharia said Timeless cannot benefit from the doctrine of bona fide purchaser and ordered the disputed land be reverted back to the government.

The judges held that there was no evidence whatsoever of how Plot 430 was alienated to Crescent, and there was no iota of proof that the alienation of the property complied with the provisions of the repealed Government Lands Act.

“The upshot is that we hereby uphold the cancellation of the title to Mombasa Block X/430 in the name of Timeless. The property shall forthwith revert to the Government of Kenya, which shall, if it so wishes, alienate it in compliance with the Constitution and the relevant statute law,” said Justice Tuiyott.

Timeless Properties Limited filed an appeal against a ruling by Justice Lucas Naikuni that cancelled its title deed to the disputed one and a quarter acre of prime land.

Justice Naikuni concluded that Crescent did not have a good title to pass to Timeless, and it did not fall under the category of an innocent bona fide purchaser for value without notice.

The property developers cited the chief land registrar, TUM and the land registrar of the Mombasa district.

Timeless Properties said that it was issued with a Certificate of Lease by the Government of Kenya, having purchased it for value from its “predecessors” in July 2006.

The property developers said the interest purchased was a reversionary interest of a lease of 99 years from July 1, 1997, and the purchase price was Sh4 million.

However, Justice Naikuni said that despite the allegations of fraud, none of the parties had been able to prove the allegation of fraud by filing a report by a land surveyor, an investigation agency, or a forensic document examiner, or a report from the Directorate of Criminal Investigation (DCI), the established expert on demonstrating the allegation of fraud, which was neither produced nor summoned. 

Justice Naikuni observed that Timeless failed to produce empirical documentary evidence to support its claims that it was a bona fide purchaser for value without notice.

The trial judge said Timeless failed to produce copies of the said newspaper advertisement and sale agreement with terms and conditions stipulated therein entered between it and the then vendor.

He said there were no copies of the transfer forms, application and letter of clearance by the Commissioner of Lands, copies of mutation forms, maps, or receipts of statutory payments, such as stamp duty and registration fees in respect of the Certificate of Lease.

“At the very least, Timeless would have summoned the vendors, Crescent Properties Limited (Crescent), as their witness but failed to do so. All this put the sale of plot 430 on a great questionable pedestal,” said Justice Naikuni.

He also said that it was rather disturbing that despite having bought the land for over 12 years, as claimed, Timeless had never taken possession of the land.