Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedPetition dated 4th March 2019 (number not stated in judgment)· [2022] KEELC 1272 (KLR)

Abdulrahman Salim Baabad v County Commisioner of Lamu & 3 others; Canistel Limited (Interested party) [2022] KEELC 1272 (KLR)

Environment and Land Court (Malindi)
24 February 2022
4,663 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Petitioner, Abdulrahman Salim Baabad, petitioned claiming ownership of Plot A, Plot B and Plot C LR No. 79568/111 Mtangawanda, Lamu, on the basis of allotment letters dated 5th January 1999, asserting continuous occupation, a licence agreement with the Interested Party, and seeking declarations of ownership and of infringement of Articles 40, 47, 48 and 60, conservatory orders, vacant possession from the 2nd Respondent (police), mandamus to register title, compensation, licence fees from the Interested Party and costs. The Respondents, through a replying affidavit of the County Commissioner, maintained the land was gazetted mangrove swamp forest reserve under Proclamation No. 44 of 1932 and Gazette Notice No. 174 of 1964, administered by Kenya Forest Service and incapable of private allocation; police occupation was with KFS consent for a Patrol Unit. The Interested Party claimed improper joinder, having paid licence fees but never occupied the land, which was blocked by the Border Control Unit. The court framed four issues and held that the land was forest reserve, unavailable for alienation; the Area Chief could not allocate public land, and the Commissioner of Lands' purported allocation was null and void absent degazettement under section 4 of the Forest Act Cap 385. Relying on the Funzi Island line of cases culminating in Pati Limited v Funzi Island Development Limited in the Supreme Court, the court found no Article 40 violation. The Interested Party was improperly joined, no rights violation by it being shown. The Petition was dismissed with each party bearing its own costs.

Key legal issues

#
01

Whether the Petitioner had ownership rights over the suit property

Holding

No; the land was gazetted forest reserve and the purported allotment was null and void.

Reasoning

The court found that the land fell within the mangrove swamp forests declared by Proclamation No. 44 of 1932 and Legal Notice No. 174 of 1964. The Petitioner's allotment letters could not confer title because the land, being reserved forest, was not available for alienation. Degazettement procedures under section 4 of the Forest Act Cap 385 were never undertaken, so any allocation was void.

p. 6
02

Whether the Respondents violated the Petitioner's constitutional rights

Holding

No violation established; Article 40 protection applies only to lawful property rights.

Reasoning

Having found that the Petitioner had no valid proprietary interest, the court concluded he could not invoke Article 40 protections. The Respondents' possession of the land for police patrol purposes was with the Kenya Forest Service's consent, and the Petitioner had long vacated the land when police took possession.

p. 4
03

Whether the Interested Party was properly joined

Holding

No; the Interested Party had no identifiable stake in the ownership dispute.

Reasoning

The court applied the Mutunga Rules and the Muruatetu criteria. The nexus between the Petitioner and the Interested Party was a mere licence agreement which the Interested Party paid for but never used the land. The proper remedy for the licence dispute was an ordinary suit or ADR, not a constitutional petition. The Petition failed against the Interested Party.

p. 7

Legal principles established

#
  • Land declared a forest reserve by Proclamation No. 44 of 1932 and Legal Notice No. 174 of 1964 is not available for alienation by the Commissioner of Lands.
  • Only the Commissioner of Lands could allocate unalienated public land under the Government Lands Act; an Area Chief has no such power.

Court orders

#
  1. 1.The Petition is dismissed.
  2. 2.Each party to bear their own costs.
Jurisdiction invoked
Articles 165(3) and 23(1) and 258 of the Constitution of Kenya 2010 (constitutional petition for enforcement of fundamental rights)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Abdulrahman Salim Baabad v County Commisioner of Lamu & 3 others; Canistel Limited (Interested party) [2022] KEELC 1272 (KLR)", Case Analysis (2022). Petition dated 4th March 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1272/eng@2022-02-24

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