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{
    "id": 1402482,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1402482/?format=api",
    "text_counter": 239,
    "type": "speech",
    "speaker_name": "Suba South, ODM",
    "speaker_title": "Hon. Caroli Omondi",
    "speaker": null,
    "content": "Secondly, if you go to Section 5, it says, “the commission finds that the title was acquired in an unlawful manner, the commission shall direct the registrar to revoke the title.” That is the correct procedure because unlawful allocation is where public land that was not available for alienation is given out. That has been very common. What is unlawful is not defined. We will need to create some definition for that. If you go down to Section 5(6), you will find that irregularly acquired is defined, but certain elements critical to what this Act needs to address are missing. Irregularly acquired land is where land is available for allocation but the correct procedure was never followed. In that case, the drafters were very clever. They are saying they will not recommend revocation but rectification where there is irregular allocation. You will be given a chance to remedy the wrong. What they are not saying is that you will become a beneficiary of your fraud where the irregularity was tainted with fraud and deliberately fraudulent. We need to relook at the definition because irregular allocation is defined in the Act. We need to look at that and distinguish honest mistake or irregularity from deliberate fraud. In that case, if that is established, revocation should follow because you cannot benefit from illegal activity. Section 5(7) says, “no revocation of the title shall be effected against a bona fide purchaser for value without notice of defect in the title.” The lawyers in the House will tell you that there is a principle in law and Latin known as nemo dat quod non habet . You cannot give that which does not belong to you. You cannot pass a better title than the one you have. If it is established that your title was fraudulent, a third-party purchaser equally cannot get a better title. There are exceptions. This is one of them. It is a good exception where an innocent purchaser has bought a property without having defect in the title. What they do not tell you is that the original beneficiary or the person who committed the fraud, if not compelled to undertake restitution, becomes a beneficiary of his or her fraud. In other words, there will be cases of unjust enrichment where people will benefit from illegal activities. Again, we will be proposing an amendment. In case of irregular or unlawful allocation, the person who committed the fraud will be required to make restitution either to the state or to the person who paid them. They should make restitution to the person who paid them where there is a revocation. Where there is just restitution, they should be required to pay whatever they received or the value of the property depending on whichever is higher. Further, I would like to go to the historical injustices in Section 17(3)(d) where my Leader of the Minority Party was very passionate. They imposed a five-year limit to historical injustices. It takes time if you want to look at historical documents in order to handle a matter and show that you were displaced, and your community lived there. Some of these documents are not even within the Republic of Kenya. They are in the archives in England. It was a The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor"
}