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ELCPartially AllowedNot stated in the extract (Plaint dated 27th November 2014)· [2022] KEELC 994 (KLR)

Seventh Day Adventist Church (East Africa) t/a Solace Lifestyle And Welness Resort v Mario Rashid & 16 others [2022] KEELC 994 (KLR)

Environment and Land Court
4 March 2022
2,983 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's beaches belong to everyone: the court ordered beachfront structures removed but confirmed no private owner can claim exclusive rights to the shoreline.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Plot No. 19 Watamu (CR 11605) and holder of an easement over Plot No. 42 Watamu, sued seventeen Defendants for declarations that developments on the beach and shoreline adjoining its hotel were illegal, mandatory injunctions to demolish them, and perpetual prohibitory injunctions. The 1st to 16th Defendants entered appearance but filed no defence; only the 17th Defendant (County Government) defended. The court framed two issues: whether the structures were illegal, and whether the Plaintiff held exclusive rights over the abutting beach and shoreline. It held the ownership/locus standi question had been settled in a ruling of 20th November 2015, protecting the Plaintiff's rights under Article 40 despite the absence of a Certificate of Title. Illegality of the structures was effectively admitted by all parties, and the 17th Defendant had issued removal notices. On the second issue, the court applied Tukero Ole Kina, holding that the plot, registered under the Land Titles Act and Government Lands Act, was ager limitatus; the beach front and shoreline between high and low water marks is public land under Article 62(1)(l), and littoral rights cannot be exclusively owned. Nevertheless, the encroachment infringed the public's and the Plaintiff's right to a clean and healthy environment. The court declared the structures illegal, ordered their removal within 60 days, and awarded costs against the 1st to 16th Defendants only. Judgment delivered at Malindi on 4th March 2022 by M.A. Odeny, J.

Key legal issues

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01

Plaintiff's ownership/locus standi

Holding

The issue had already been determined in a ruling of 20th November 2015; the registered transfer and grant of right of way crystallized the Plaintiff's rights protected under Article 40 notwithstanding absence of a Certificate of Title.

Reasoning

The 17th Defendant re-raised locus standi, arguing a transfer is not proof of ownership. The court held the point was res judicata between the parties, having been decided in the earlier ruling, and the Plaintiff's registered rights stood unless set aside. The Defendant could not raise the same issue again.

p. 4
02

Illegality of the Defendants' structures

Holding

The 1st to 16th Defendants' structures on the beach front and shoreline are illegal; the 17th Defendant had issued notices for removal and the Defendants proved no authorization.

Reasoning

Both the Plaintiff and the 17th Defendant admitted the structures were unauthorized, and the 17th Defendant had issued public notices for removal. The Defendants claimed authorization but proved none; the only body mandated to approve developments was the 17th Defendant, which conceded illegality.

p. 4
03

Exclusive rights over beach and shoreline

Holding

The Plaintiff has no exclusive riparian/littoral rights over the beach and shoreline, which is public land, though it may enjoy its easement in a clean and healthy environment.

Reasoning

The plot, registered under the Land Titles Act and Government Lands Act, has fixed boundaries (ager limitatus). The beach front is public land under Article 62(1)(l). Littoral rights over the ocean cannot be exclusively owned. However, the Plaintiff's easement over Plot No. 42 was acknowledged and must be enjoyed in a clean environment, justifying removal of the illegal structures.

p. 5

Legal principles established

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  • Parcels registered under the Land Titles Act and Registration of Titles Act are ager limitatus; owners do not acquire exclusive rights to the beach front
  • The beach front and shoreline between high and low water marks is public land under Article 62(1)(l) of the Constitution
  • Riparian rights apply to flowing watercourses; rights over the sea are littoral rights and cannot be exclusively owned
  • Unauthorized encroachment on public beach infringes the public's and adjoining owners' right to a clean and healthy environment

Court orders

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  1. 1.Declaration that the structures erected by the 1st to 16th Defendants on the beach front and shoreline are illegal
  2. 2.The structures erected by the Defendants are illegal hence should be removed within a period of 60 days from the date of the Judgment
  3. 3.The 1st to 16th Defendants to pay costs of the suit

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 42, 62, 67(2), 70
  • National Environment Management and Coordination Act 1999Section 3
  • Physical Planning ActSections 30, 31, 32
  • Local Government Act (now repealed)Sections 163A, 166
  • County Government Act 2012Sections 102-115
  • Land ActNot specified
  • Land Registration ActNot specified
  • Land Titles ActNot specified
  • Government Lands ActNot specified
  • Registration of Titles ActNot specified
  • Survey ActCap 299
  • Civil Procedure RulesOrder 21 [1]

Cases cited (7)

  • John Muthui & 19 Others V County Government of Kitui & 7 Others
    [2020] eKLR
  • Martin Osano Rabera & Another vs. Municipal Council of Nakuru & 2 Others
    [2018] eKLR
  • Tukero Ole Kina & Another V Tahir Sheikh Said & 5 Others
    [2015] eKLR
  • Chesubwa Limited v Yew Investments Ltd t/a Dorado Cottages Mld & another
    [2016] eKLR
  • Chembe Vuko V Nelson Kilumo & 2 Others
    [2016] eKLR
  • Alice Mweru Ngai V Kenya Power & Lighting Co. Ltd
    [2015] eKLR
  • Moses Muema Mavoko v Frakash Navnital Barot & Another
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land, environment and title to land (Article 162(2)(b) Constitution; not expressly cited in the extract)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Seventh Day Adventist Church (East Africa) t/a Solace Lifestyle And Welness Resort v Mario Rashid & 16 others [2022] KEELC 994 (KLR)", Case Analysis (2022). Not stated in the extract (Plaint dated 27th November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/994/eng@2022-03-04

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