Irene Mary Hamphries v Tahir Sheikh Said & 5 others [2015] KEELC 314 (KLR)
The bottom line
#The Environment and Land Court in Malindi dismissed a coastal landowner's bid to claim land exposed by the receding sea, because her plot had fixed, beaconed boundaries.
What this practically means
#Executive summary
#Key legal issues
#Applicable law after repeal of the Land Titles Act, Registration of Titles Act and Government Lands Act
The law applicable is that in force when the Indenture and grants were registered, i.e. the repealed LTA, RTA and GLA
Section 23(3)(c) of the Interpretation and General Provisions Act preserves rights acquired under repealed laws, echoed by Section 162(1) of the Land Act. The Supreme Court's holding in Samuel Kamau Macharia against retrospective application of statutes reinforces that the Land Act and Land Registration Act do not govern the pre-existing titles.
Whether accretion and alluvion doctrines entitle the Plaintiff to the land exposed by the receding sea
No; the doctrines do not apply because plot 620 has fixed beaconed boundaries and the change was sudden (1961 floods), not gradual and imperceptible
The doctrines apply only where a boundary is a water line and the change is gradual and imperceptible. Plot 620's eastern boundary is fixed by deed plan with beacons. Further, Section 28(1) of the Land Titles Act vests foreshore rights in the Government, and Article 62(1)(e) of the Constitution defines land between high and low water marks as public land.
Validity, prima facie, of the Plaintiff's title to plot 11200 and the 1st Defendant's title to plot 11215
Plaintiff failed to establish a prima facie case over plot 11200; the 1st Defendant's title to 11215 is prima facie valid
The Plaintiff produced only a grant for 11200 without the survey plan, whereas the 1st Defendant exhibited the survey plan, field notes, Director of Surveys approval, registration and payment of rent and rates. The Plaintiff did not rebut the allegation that plot 11200 lies near Malindi Airport and was not surveyed.
Limitation under Section 136 of the Government Lands Act
Deferrable to trial; the application did not turn on it
Whether the cause of action accrued when the grant was issued or when the Plaintiff discovered it is a matter for evidence at the hearing of the suit, not for an interlocutory application.
Legal principles established
#- Rights, titles and interests acquired under repealed land statutes continue to be governed by the law applicable immediately prior to repeal
- Land registered under the Land Titles Act and the Registration of Titles Act has fixed boundaries (ager limitatus), to which the doctrines of accretion and alluvion do not apply
- Accreted land between the high and low water marks is public/unalienated Government land under the Constitution
- Accretion requires gradual and imperceptible addition; sudden change such as flooding and siltation does not confer title on the adjoining owner
Court orders
#- 1.Dismissal of the Plaintiff's Application dated 20th November 2014 with costs
- Jurisdiction invoked
- Inherent civil jurisdiction of the court in a land dispute (interlocutory injunction application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Irene Mary Hamphries v Tahir Sheikh Said & 5 others [2015] KEELC 314 (KLR)", Case Analysis (2015). Application dated 20th November 2014 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/314/eng@2015-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.