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ELCPartially AllowedEnvironment and Land Constitutional Petition 37 (E04) of 2020· [2022] KEELC 13288 (KLR)

Said v County Government of Mombasa; Sutton Holdings Limited (Interested Party)

Environment and Land Court
28 September 2022
LNL. L. Naikuni
9,906 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court demolished a developer's ownership hopes but forced the county to pay for misleading him — approvals aren't ownership.

What this practically means

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Executive summary

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The petitioner, Abdullahi Omar Said, petitioned the Environment and Land Court at Mombasa alleging that the County Government of Mombasa illegally demolished commercial premises he had built on land between plots 1501/MN and 21152/1/MN Bamburi, a disused access road. He sought declarations of ownership, findings that his rights under articles 40, 47, 48 and 60 were violated, conservatory orders, mandamus to the National Land Commission to issue title, compensation and costs. The respondent and the interested party (Sutton Holdings Limited, through its principal Aman Kurji) opposed, arguing the petitioner constructed illegally on a public road reserve, had no title, that the petition breached the constitutional avoidance principle, and that the petitioner lacked locus standi. Justice L.L Naikuni framed four issues: the petition's threshold, conduct of the parties vis-à-vis legitimate expectation, entitlement to reliefs, and costs. The court held the petition met the Anarita Karimi Njeru precision threshold and rejected the constitutional avoidance argument. It found the suit land is public land allocable only by the NLC; the respondent's 'no objection' recommendation and PPA-2 approvals conferred no ownership but created a legitimate expectation, estopping the respondent from denying its approvals and rendering it liable to compensate the petitioner for his loss. The demolition itself was declared lawful as directed by the NLC, and the trespass claim failed. The court declared the property public land reserved as a road reserve, ordered the respondent to compensate the petitioner fully and promptly, disallowed the trespass claim, and awarded costs against the respondent. Relief for a declaration of ownership and mandamus for title was refused.

Key legal issues

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01

Whether the petition met the constitutional petition threshold

Holding

Yes; the petition pleaded violations with reasonable precision and raised substantive constitutional issues; the constitutional avoidance argument by respondent and interested party was rejected

Reasoning

The court applied the Anarita Karimi Njeru and Trusted Society tests, holding the complaints were fashioned with sufficient precision to give the respondents proper notice. The invitation to find the petition a disguised civil suit under the constitutional avoidance principle was categorically rejected because a prima facie case on rights violations was established.

p. 12
02

Whether ownership or rights in the suit land had vested in the petitioner and the effect of legitimate expectation

Holding

No title vested in the petitioner; the land is public land reserved as a road reserve allocable only by NLC, but the respondent created a legitimate expectation and issued approvals, making it liable in compensation

Reasoning

The respondent's 'no objection' letter and recommendations, together with the PPA-2 approvals issued after the criminal case direction, induced the petitioner to construct. Estoppel precludes the respondent from denying its approvals. However, the court cannot confer title to public land, and the demolition itself was lawful as directed by NLC.

p. 15
03

Whether the petitioner was entitled to the reliefs sought

Holding

Partially; declarations on public land status and lawful demolition issued, but ownership and trespass claims failed; compensation ordered against the respondent for creating legitimate expectation and issuing approvals

Reasoning

The court balanced two findings: the demolition was legally sanctioned by NLC, yet the respondent's own conduct in granting approvals and recommending allocation caused the loss. The respondent must therefore compensate. Reliefs for ownership declaration, mandamus for title, and trespass damages were refused.

p. 15

Legal principles established

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  • All constitutional petitions must demonstrate violations of fundamental rights with a degree of precision (the Anarita Karimi Njeru test), giving proper notice of the nature of claims
  • Only the National Land Commission has the legal mandate to allocate and confer title to public land; a county government cannot do so
  • A public authority that creates a legitimate expectation and issues approvals inducing reliance is estopped from denying them and is liable to compensate
  • Costs follow the event under section 27(1) of the Civil Procedure Act

Court orders

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  1. 1.Declaration that the suit property is public land under article 62(1)(a) to (n) of the Constitution, sections 20 to 36 of the Land Act and sections 5 and 14 of the National Land Commission Act, and should be set aside for use as a road reserve
  2. 2.Declaration that the petitioner had not been conferred legal ownership in any form to the suit land and hence none of his fundamental rights under articles 40, 47, 48 and 60 would have been contravened or violated
  3. 3.Declaration that the respondent's action to cause demolition of the premises erected by the petitioner on the suit property was legal, lawful and rightful as directed by the National Land Commission
  4. 4.Order that, notwithstanding the declaration on demolition, the respondent is found liable for creating legitimate expectation and issuing valid approvals leading the petitioner to construct the structure
  5. 5.Order compelling the respondent to make full, just, adequate and prompt compensation to the petitioner for the loss and damages incurred as pleaded
  6. 6.The alleged claim of trespass by the petitioner against the respondent is unmeritorious and disallowed
  7. 7.Costs of the suit to be borne by the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2(4), 10, 19, 20, 21, 22, 23, 40, 47, 48, 60, 62, 67, 68, 165(3)(d), 238, 244, 258(1), 259(1)(3)
  • Fair Administrative Action ActWhole Act
  • Land ActSection 12; sections 20 to 36
  • Land Registration ActWhole Act
  • National Land Commission ActSections 5(1)(a)-(h), 14
  • Physical Planning Act (cap 265)Section 30(1) as read with 30(2)
  • Physical and Land Use Planning ActSection 72(1); Fourth Schedule
  • Trespass ActCap 403
  • Civil Procedure ActSection 27(1)
  • Land (Allocation of Public Land) Regulation2017 Regulations

Cases cited (8)

  • Anarita Njeru Karimi v Republic
    (1976-80) KLR 1272

    Precision required in pleading constitutional violations

  • Trusted Society of Human Rights Alliance v Attorney General
    Petition No 229 of 2012

    Prima facie test and precision in constitutional petitions

  • J.P Bansal v State of Rajasthan & Another
    Appeal (Civil) 5982 of 2001

    Principles of legitimate expectation from Council of Civil Service Unions

  • Sitawi Limited v National Land Commission - Nairobi & 2 others
    (2020) eKLR

    Legitimate expectation arising from no-objection to allocation

  • Kenya Human Rights Commission and another v Non-Governmental Organizations Coordination Board and another
    [2018] eKLR

    Entitlement to reliefs under article 23

  • Council of Civil Service Union and others v Minister for the Civil Service
    [1985] AC 374

    Lord Diplock's enunciation of legitimate expectation principles

  • Reids Heweet & Company v Joseph
    AIR 1918 Cal 717

    Costs follow the event

  • Myres v Defries
    [1880] 5 Ex D 180

    Costs follow the event

Jurisdiction invoked
Articles 22, 23 and 165(3)(d)(ii) and (iii) of the Constitution of Kenya, 2010 (Environment and Land Court jurisdiction)

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, "Said v County Government of Mombasa; Sutton Holdings Limited (Interested Party)", Case Analysis (2022). Environment and Land Constitutional Petition 37 (E04) of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13288/eng@2022-09-28

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