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Court of AppealPartially AllowedCivil Appeal 252 of 2005· [2014] KECA 882 (KLR)

Funzi Island Development Ltd & 2 others v County Council of Kwale & 2 others

Court of Appeal
27 February 2014
EGE. M. GithinjiWKW. KaranjaDavid Kenani MaragaD. K. Maraga
12,693 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal cancelled a coastal land allocation at Funzi Island, confirming beaches and foreshore belong to the public and cannot be irregularly allocated.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Githinji, Karanja and Maraga, JJA) unanimously allowed the appellants' appeal against the High Court's dismissal of their judicial review application for certiorari and prohibition challenging the setting apart of a coastal strip at Funzi Island by the County Council of Kwale and its lease to Pati Limited. The High Court (Khaminwa, J.) had held the Trust Land Act procedures were complied with, the land was not forest or public beach, and the appellants lacked locus standi. The Court reversed on all counts. It found the disputed land lay between the high and low water marks, forming part of the foreshore and of a mangrove swamp forest reserve declared by Proclamation No. 44 of 1932 and reiterated by Legal Notice No. 174 of 1964, never degazetted; it was therefore not Trust land vested in the Council. Independently, the mandatory procedural safeguards in section 13(2) of the Trust Land Act - notice, hearing of representations, and approval by council resolution - were not complied with, no compensation was provided for, the grant exceeded the 0.7 hectares set apart, was issued under the wrong statute, and was procured by misrepresentation. The Court held that indefeasibility of title under section 23 of the Registration of Titles Act cannot sanction an illegality, and that the appellants' commercial and access interests gave them sufficient standing. The setting apart, the Gazette Notice, the letter of allotment and Grant No. CR 106 were quashed, with costs to the appellants.

Key legal issues

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01

Status of the suit land - Trust land, foreshore or forest reserve

Holding

The land was not Trust land; it was foreshore between high and low water marks and part of a mangrove swamp forest reserve under Proclamation No. 44 of 1932, never degazetted.

Reasoning

The boundary of Funzi Island extended only to the high water mark; the disputed land lay beyond an inlet/mangrove swamp and was therefore not part of the island. Proclamation 44 of 1932, reiterated by Legal Notice 174 of 1964 and preserved by s.65 of the Forests Act 2005, declared all land between high and low water marks in the area a forest reserve. No evidence showed degazettement, so the burden shifted to the respondents and was not discharged.

p. 6
02

Validity of the setting apart and grant

Holding

The setting apart, Gazette Notice and grant were ultra vires, illegal and a nullity, both because the land was not Trust land and because mandatory procedures were breached.

Reasoning

No notice to the Divisional Board or residents, no recorded representations, no council resolution, no compensation date in the Gazette, no compensation paid, grant exceeded the 0.7 hectares set apart, issued under the wrong statute (RTA instead of RLA), obtained by misrepresentation, and described the land as Funzi Island Township.

p. 6
03

Locus standi of the appellants

Holding

The appellants, though owners of no legal right in the land, had sufficient commercial and access interests under section 12 of the Trust Land Act to challenge the setting apart.

Reasoning

The first appellant used the land to land boats and access the sea for its tourist business; development would seriously affect its business and deny villagers and fishermen access to the sea. 'Interest' in section 12 is very wide and covers such commercial interest, consistent with Kuntse Hotel.

p. 9
04

Suitability of judicial review for resolving factual disputes

Holding

Judicial review was competent because the primary issue was jurisdictional and depended on documentary evidence and construction of undisputed documents, with no material conflict of fact.

Reasoning

Although judicial review is generally unsuited to resolving material factual disputes, the only real conflict (submersion at high tide) was immaterial; whether the land lay between the specified water marks was resolvable from documents and the law, so the court could properly exercise judicial review jurisdiction.

p. 5
05

Standard and burden of proof in judicial review

Holding

The standard was on a balance of probabilities, but the presumption of regularity placed the burden on the appellants, which shifted to the respondents once they proved a prima facie case.

Reasoning

Judicial review is essentially civil in nature; the standard may vary with the gravity of the case and the burden may shift. Once the appellants produced the Proclamation and boundary documents, the burden shifted to the Council and Commissioner of Lands to show the land was Trust land, which they failed to do with concrete evidence.

p. 6

Legal principles established

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  • Land between high and low water marks (foreshore) is public land and cannot be alienated as Trust land by a county council.
  • A registered proprietor of allocated land acquires indefeasible title only if the allocation was legal, proper and regular; indefeasibility cannot sanction an illegality.
  • Statutory procedural safeguards for setting apart Trust land, including notice, hearing of representations and approval by council resolution, are mandatory and go to jurisdiction.
  • The Commissioner of Lands cannot grant more land than was set apart and approved by council resolution; the grant of excess land renders the whole grant illegal where the excess is not severable.
  • Section 23 of the Registration of Titles Act protects only a certificate of title issued to a purchaser upon transfer or transmission, not an original grant of allocated land.
  • A person with a commercial interest affected by the setting apart of land has sufficient interest under section 12 of the Trust Land Act to challenge the legality of the setting apart.

Court orders

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  1. 1.Appeal allowed
  2. 2.Setting apart of the land quashed
  3. 3.Gazette Notice No. 3831 dated 24th June 1994 quashed
  4. 4.Letter of allotment dated 27th July 1994 quashed
  5. 5.Grant No. CR 106 in respect of LR No. 20247 quashed
  6. 6.Appellants awarded costs of the appeal and of the court below

Authorities

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Legislation

  • Constitution of Kenya 1963sections 114, 115, 117, 118
  • Constitution of Kenya 2010Article 62(1)(c)
  • Trust Land Actsections 7, 8, 9, 10, 11, 12, 13, 53
  • Registration of Titles Actsection 23
  • Registered Land Actsection 2(d), section 30
  • Forests Act 2005section 65(1)(9)
  • Forests Act Cap 385section 4
  • Forest Ordinance Cap 176 (1948)section 4 and Schedule
  • Crown Lands Ordinance Cap 155 (1948)section 102
  • Government Lands Act Cap 280section 82
  • Revision of Laws Act Cap 1section 5
  • Evidence Actsection 107
  • Senior Courts Act 1981 (England)
  • Proclamation No. 44 of 1932
  • Legal Notice No. 174 of 1964 (Kenya Independence Order in Council 1963)
  • Native Lands Trust Act Chapter 100 (1948)First Schedule, Part I Section 1, Part XVI

Cases cited (17)

  • Reg. v. Home Secretary, Exparte Khawaja
    [1984] 1 AC 74

    Burden and standard of proof may shift according to the circumstances of each case.

  • Grunwick Processing Laboratories Ltd v. Advisory, Conciliation and Arbitration Services
    [1978] AC 655

    Statutory duty to notify and hear representations requires genuine compliance and a full and sufficient opportunity.

  • In re The Union of the Beneficiaries of Whippingham Church Commissioners for England
    [1954] AC 245

    Procedural safeguards imposed for the benefit of affected persons are mandatory.

  • Commissioner of Lands v. Kuntse Hotel Limited
    Civil Appeal No. 234 of 1995 (unreported)

    A party with sufficient commercial interest affected by an allocation is entitled to a hearing; certiorari granted.

  • Selle & Another v. Associated Motor Boat Co. Ltd & Others
    [1968] EA 123

    First appellate court must re-evaluate evidence and reach own conclusions, being slow to disturb findings of fact.

  • Town Council of Ol'Kalou v. Nganga General Hardware
    CA No. 269 of 1997

    Land set aside for public use is inalienable (cited by appellant's counsel).

  • R v. Inspectorate of Pollution & Another, Ex-parte Greenpeace Ltd No. 2
    [1994] 4 ALL ER

    Locus standi (cited by 3rd respondent's counsel).

  • Nairobi Permanent Markets Society & Others v. Salma Enterprises & Others
    [1995–1998] 1 EA

    Locus standi and fraud must be proved (cited by 3rd respondent's counsel).

  • Ngo'k v Ole Keiwa
    Civil Application No. Nai. 60 of 1997

    Fraud must be specifically pleaded and proved (cited by 3rd respondent's counsel).

  • Njlux Motors Ltd v. Kenya Power & Lighting Ltd.
    [2000] 2 EA

    Fraud must be proved to defeat title (cited by 3rd respondent's counsel).

  • Kenya National Examinations Council v. Republic, Ex-Parte Godfrey Gathenji Njoroge & 9 others
    [1997] eKLR

    Judicial review remedies are discretionary (cited by 3rd respondent's counsel).

  • Housing Finance Company of Kenya Ltd. v Richard Ndere Johnson & 3 others
    [2010] eKLR

    Appellate court will not disturb lawful exercise of discretion absent misdirection (cited by 3rd respondent's counsel).

  • O'Reilly v Mackman
    [1983] QBD 237

    Procedural exclusivity of judicial review (cited by Karanja, JA).

  • O'Rouke v Camden London Borough Council
    [1998] A.C. 188

    Scope of public law remedies (cited by Karanja, JA).

  • Stovin v Wise
    [1996] 3 ALL ER 801

    Limits of claims against public authorities (cited by Karanja, JA).

  • Anns v Merton London Borough Council
    [1978] A.C. 728

    Scope of duty claims against local authorities (cited by Karanja, JA).

  • Rajkot Municipal Corporation v Manjulben Jayantilal Nakum
    [1997] SCC 552 111 79

    Comparative position on claims against public bodies (cited by Karanja, JA).

On appeal from
High Court of Kenya at Mombasa
H.C. Misc. Civil Application No. 272 of 1994
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution and appellate jurisdiction over the High Court's dismissal of a judicial review application

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Funzi Island Development Ltd & 2 others v County Council of Kwale & 2 others", Case Analysis (2014). Civil Appeal 252 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/882/eng@2014-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.