Hamid Abdalla Mbarak v Registrar of Titles & 3 others; Will W. M. Omido & another (Interested Parties) [2020] KEELC 2086 (KLR)
The bottom line
#Kenya's Environment and Land Court nullified private title over a Kilifi public beach plot, ruling that a title deed cannot protect land grabbed from the public.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition was barred by res judicata
The decision in Malindi ELC Case No. 11 of 2011 did not bar the petition; it was obtained per incuriam, made without the disclosure of on-going investigations and forgery findings, and the parties and rights in issue differed from the present petition
The Interested Parties relied on the 2013 decree in ELC No. 11 of 2011 but produced neither the pleadings nor the judgment. On perusal of the judgment, no issues were in dispute, no evidence was tendered, and the parties were unaware of a 2nd March 2013 letter by the Chief Land Registrar finding that documents used to pass title were forgeries. The parties in that suit were thus guilty of material non-disclosure and the decision was made per incuriam. Further, the parties and rights sought to be vindicated in the petition differ from those in the earlier suit.
Whether the suit property was public utility land
Kilifi Township Block IV/177 was a designated public utility property and could not lawfully be converted into private property
The suit property was excised from the original parcel Kilifi Township Block IV/149 which, by Gazette Notice No. Vol. CVIII-No. 53 dated 29th July 2005, was marked out for use as a public beach. The Interested Parties did not contest the Gazette Notice, nor an earlier judgment by H.A. Omondi J in Malindi HCCC No. 30 of 2006 (consolidated with No. 54 of 2005) which found that titles curved out of Block IV/149 were null and void. Alienation defeating the public interest contravenes the public trust doctrine.
Whether the Interested Parties were bona fide purchasers for value without notice
They were not sufficiently diligent prior to purchase, and their individual rights must yield to the rights of the general public; in any event their recourse lies against their vendor
Although the Interested Parties conducted an official search and were told of the prior litigation, they did not investigate the on-going investigations over the propriety of the title that were disclosed in the judgment they read. Had they made inquiries, they would have discovered the Chief Land Registrar's letter of March 2013 indicating the foundational documents were forgeries. Their claimed investments cannot override the public's right of access to the public beach.
Protection of title under Article 40 and indefeasibility
Property rights under Article 40(6) do not extend to unlawfully acquired property; indefeasibility is a statutory concept that cannot prevail over the Constitution
The Court held it would be a scandal to ignore the glaring irregularities evidenced by the Chief Land Registrar's letter showing forged documents. Citing Maraga J in the Waa Ship Garbage Collector case, it reiterated that alienation of land defeating the public interest goes against the letter and spirit of Section 1 and 1A of the repealed Constitution and that titles of land grabbers must be nullified.
Legal principles established
#- A court is not bound to follow a previous decision that was made per incuriam
- Constitutional protection of property rights does not extend to unlawfully acquired property, and indefeasibility of title cannot defeat public trust over public land
- For a matter to be res judicata there must be an earlier decision, a final determination on the merits, and the same parties
Court orders
#- 1.A declaration that the property known as Kilifi Township Block IV/149, all its sub-divisions including Kilifi Township Block IV/177/PDP made by the Physical Planner vide Plan No. NRB/134/2005/1, is public property
- 2.A declaration that the registration of Kilifi Township Block IV/177 in favour of the 2nd Respondent is null and void and that the 2nd Respondent has no right or interest in the property
- 3.A declaration that the alienation of the property by the 1st Respondent to the 3rd Respondent for private use violated the Petitioner's rights of equal access to public property
- 4.A declaration that the sub-division or excision of Kilifi Township Block IV/149 into sub plots for allocation to third parties is illegal, null and void
- 5.A permanent injunction restraining the 2nd Respondent from occupying, utilising, constructing, entering or interfering with Kilifi Township Block IV/177
- 6.An order of certiorari quashing the 1st Respondent's decision alienating Kilifi Township Block IV/149 and IV/177
- 7.An order of mandamus compelling the 1st Respondent to cancel the grant of Kilifi Township Block IV/177
- 8.An order compelling the 2nd Respondent to remove all construction material, backfill trenches and rehabilitate the property
- 9.Each party to bear their own costs
- Jurisdiction invoked
- Constitutional petition on property and public land rights; original jurisdiction of the Environment and Land Court (Article 40(6) and public trust over public land invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hamid Abdalla Mbarak v Registrar of Titles & 3 others; Will W. M. Omido & another (Interested Parties) [2020] KEELC 2086 (KLR)", Case Analysis (2020). Petition dated 9th October 2017 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2086/eng@2020-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.