Seventh Day Adventist Church (East Africa) t/a Solace Lifestyle And Welness Resort v Mario Rashid & 16 others [2022] KEELC 994 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Plaintiff's ownership/locus standi
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.
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.
Illegality of the Defendants' structures
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.
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.
Exclusive rights over beach and shoreline
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.
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.
Legal principles established
#- 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
#- 1.Declaration that the structures erected by the 1st to 16th Defendants on the beach front and shoreline are illegal
- 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.The 1st to 16th Defendants to pay costs of the suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.