Kina & another v Said (Also Known as TSS) & 5 others (Civil Case 219 of 2014) [2015] KEELC 313 (KLR)

The Deed Plan for plot 785 shows straight beaconed boundaries fixed without reference to the water, making the land ager limitatus to which accretion doctrines do not attach. The Land Titles Act vested foreshore rights in the Government, and Article 62(1) of the Constitution defines land between high and low water marks as public land. Further, the Plaintiffs' own pleadings attribute the recession to the 1961 floods, a sudden event inconsistent with gradual and imperceptible accretion.

The 1st Defendant exhibited survey reports, approved deed plans, the Commissioner of Lands' forwarding letter, registration of the grant, rent payments and a rates clearance certificate. The failure to advertise under section 13 of the Government Lands Act was a matter for the 3rd Defendant (the allocating authority), who gave no evidence of unlawfulness. The grant having been registered in 2009, injunctive relief against registration was moot.

Whether the cause of action accrued when the Plaintiffs discovered the grant or when it was actually granted depends on evidence to be adduced at trial; the question cannot be resolved at the interlocutory stage.

Section 23(3)(c) of the Interpretation and General Provisions Act preserves rights acquired under repealed law, and section 162(1) of the Land Act likewise preserves pre-existing rights. The grant for plot 11215 was registered under the Registration of Titles Act and the Deed Plan for plot 785 under the Land Titles Act; those statutes therefore govern.