from the personal welfare of the plaintiffs. In addition to personal interest there is the wider
public interest to be taken into consideration. The submission that the Attorney General is the
only competent authority to institute a suit on behalf of the public is with respect, restrictive and
may lead to miscarriage of justice if accepted as such.
On my part accept and subscribe to the proposition that a party is only required to show sufficient
interest to acquire the capacity to urge the court for particular orders. This, the plaintiff have and I
find they have the locus standi in this matter and their action is properly before the court.
It is true that land can be acquired by direct allocation or by way of purchase. In the instant case,
the first defendant was a direct allottee of the six plots referred to earlier while the second
defendant purchased the three plots from Maywood Limited. Mitema Holdings limited and Mova
Construction Company limited respectively. All these three companies share the same postal
addresses that is P. O. Box 1771, Kisumu and the purchase price of one million shillings for each
plot.
These are serious discrepancies in the transfers annexed to the affidavit of the second defendant.
They are not in the prescribed form as provided for under the R. I. A. cap 300 laws of Kenya.
Only one party has signed the same, that signature has not been witnessed and two of the same
transfers did not receive the consent of the commissioner of lands. Nevertheless, certificate of
lease were issued in respect of each plot be that as it may the real issue is whether or not the
commissioner of lands had the authority to alienate the land of the first defendant and to the three
companies who subsequently sold the plots to the second defendant.
The two parcels of land in issue were part of the subdivision scheme which were said to have
been surrendered to the Commissioner of Lands for the public utility before the development plan
could be approved. The surrender of the said parcels does not vest unto the Commissioner of
Lands the power or authority to alienate the same to any party. A trust was in the circumstances
of the case created and the commissioner of lands could not deal with the land without reference
to the plaintiffs. A similar situation arose in High Court Civil Case No. 688 of 1996. Beth Kalia
and others –Vs- Robert Mutiso Leli, the court observed.
“As regards the Commissioner of Lands, it is clear that he was to hold the land in trust for the
adjacent owners who have in fact paid for it. He therefore was under a duty to deal with it with
their approval and not otherwise. He therefore did not have the power to alienate the land to the
respondent.”
That was a decision of the High Court with concurrent jurisdiction and is not binding on me.
However with respect I agree with that holding in its entirety.
In addition to the foregoing the plaintiffs have annexed to the affidavit for injunction a letter
addressed to the commissioner of police by the Commissioner of Lands dated 23rd April 1993,
which read as follows:
The Commissioner of Lands
Police Headquarters
P. O. Box 30083,
NAIROBI.
LETTER OF RESERVATION FOR PLOT NO. BLOCK 90 307 FOR POLICE STATION
AT LORESHO.