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ELCPartially AllowedEnvironment & Land Petition 13 of 2021· [2022] KEELC 15337 (KLR)

Coastal Properties Limited v County Government of Kwale; Director of Survey Kwale County & 3 others (Interested Parties)

Environment and Land Court
28 November 2022
7,059 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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Kwale County illegally paved a road through private land and must pay Kshs 5.5 million, proving counties cannot take property without following proper procedure.

What this practically means

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Executive summary

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Coastal Properties Limited, registered proprietor of Kwale/Diani Beach Block/997, petitioned against the County Government of Kwale after the county demarcated a footpath crossing the plot as a road reserve and graded it into a motorable access road, destroying a caretaker's structure. The petitioner alleged violations of Articles 40 and 47. The 1st-3rd Interested Parties raised a jurisdictional objection premised on the boundary-dispute provisions of the Land Registration Act and Survey Act, which the court dismissed in a ruling of 19/05/22, holding the petition raised an ownership issue within its jurisdiction. The respondent filed a response and cross petition blaming Leisure Lodges Limited's perimeter wall for encroaching the designated 20m access road, which diverted public use onto the petitioner's land. Relying on the petitioner's survey report and a joint survey undertaken by consent, the court found no road reserve existed through the suit property. It held that the county's entry, paving and creation of the road took private land without compensation and without following the Land Act compulsory acquisition procedure, violating Article 40, and that the failure to give notice, a hearing or written reasons violated Article 47. Certiorari issued to quash the demarcation, and declarations and a permanent injunction were granted. The court awarded Kshs 5,500,000 as aggravated exemplary damages, folding in trespass and wastage claims, and costs of the petition against the respondent. In the cross petition, only an order for demolition of the encroaching wall within 90 days (guided by the joint survey) was granted, with each party bearing its own costs; the 4th Interested Party was denied costs of the petition.

Key legal issues

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01

Existence of a road reserve through the suit property

Holding

No road reserve existed cutting through Kwale/Diani Beach Block 997; the designated 20m access road had been encroached upon by the 4th Interested Party's perimeter wall

Reasoning

The petitioner's title was undisputed. The petitioner's survey report and the joint survey report conducted with all parties' surveyors showed the motorable path passed through the plot illegally while the surveyed road was enclosed by the Leisure Lodges wall. The respondent's response was largely an admission.

p. 5
02

Violation of Article 40 right to property

Holding

The respondent's entry, paving and creation of a motorable road through private land without compulsory acquisition or compensation violated Article 40

Reasoning

Article 40(3) permits deprivation only via Chapter Five acquisition or for a public purpose carried out in accordance with the Constitution and an Act providing just compensation and court access. The Land Act compulsory acquisition procedure (ss 107-133) was not followed and no easement was sought; mistaken belief is no defence.

p. 6
03

Violation of Article 47 fair administrative action

Holding

The respondent infringed Article 47 by failing to give notice, a hearing or written reasons before demarcating and grading the petitioner's land

Reasoning

Applying section 4(3) of the Fair Administrative Action Act, the respondent marked the path, received the petitioner's complaint and documents, promised to consult, then graded the road without reverting or giving reasons. The later joint survey did not cure the unfairness.

p. 8
04

Certiorari against the demarcation decision

Holding

Certiorari issued to quash the demarcation as the decision was grossly unreasonable, irrational and illegal, and being void ab initio had to be recalled

Reasoning

Applying Pastoli and Macfoy, the court found the decision grossly unreasonable and procedurally improper; a void act is a nullity that collapses of its own accord, though a quashing order is convenient.

p. 9
05

Exemplary damages quantum

Holding

Kshs 5,500,000 awarded as aggravated exemplary damages, sufficient to cover all damage including trespass and wastage

Reasoning

Following David Gitau Thairu and the Mikidadi criteria (oppressive, arbitrary or unconstitutional action by government servants), the court found the conduct oppressive and arbitrary but moderated quantum because the land was undeveloped, the public had used the path, and the petitioner would regain the land.

p. 10
06

Cross petition against Leisure Lodges Limited

Holding

Only a demolition order issued against the encroaching perimeter wall; damages and costs refused

Reasoning

Although the facts were uncontroverted, allowing the respondent to benefit from its own unconstitutional actions would be contradictory and amount to unclean hands. The joint survey report should guide the demolition.

p. 11

Legal principles established

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  • Registration vests absolute ownership of land in the registered proprietor
  • Deprivation of property is only permissible under the exceptions in Article 40(3); mistaken belief by a state organ is not one of them
  • An administrative action likely to adversely affect rights requires prior notice and a hearing; no party should be condemned unheard
  • A void act is a nullity needing no order to set it aside, though a declaration is convenient

Court orders

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  1. 1.Declaration that there is no road reserve cutting through Kwale/Diani Beach Block 997
  2. 2.Permanent injunction restraining the respondent from trespassing on, encroaching, demarcating, creating a road reserve or carrying out works on Kwale/Diani Beach Block/997
  3. 3.Declaration that the respondent's demarcation, paving and opening of the petitioner's property as an access road was unlawful and unconstitutional, violating Articles 40 and 47
  4. 4.Order of certiorari quashing the decision demarcating a portion of the petitioner's property as a road reserve
  5. 5.Award of Kshs 5,500,000 as aggravated exemplary damages to the petitioner
  6. 6.Costs of the petition to be borne by the respondent
  7. 7.The 4th Interested Party to have no costs on the petition
  8. 8.The respondent in the cross petition (Leisure Lodges Limited) to demolish the portion of the perimeter wall encroaching the access road per the joint survey report dated 11/8/20 within 90 days, failing which the County Government of Kwale shall undertake the demolishment
  9. 9.Each party to bear their own costs on the cross petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 23, 27, 40, 47, 62(1), 62(4), 65, 165; Chapter Five
  • Land Registration Actsections 18, 19(1)(2), 24(a), 2012
  • Survey Actsection 30, Chapter 299
  • Land Act, 2012sections 107-133
  • Fair Administrative Action Actsection 4(1), (2), (3), 2015
  • Civil Procedure Actsection 27

Cases cited (13)

  • Rutongot Farm Ltd v Kenya Forest Service & 3 others
    [2018] eKLR

    No person shall be arbitrarily deprived of property under Article 40

  • Jackson Kariuki Kahungura & another v John Karanja Kihagi & 5 others
    [2018] eKLR

    Right to property violations

  • Vipingo Beach Resort Limited v Attorney General & 3 others
    [2015] eKLR

    Right to property violations

  • Kenya Agricultural and Livestock Research Organization v Kisii County & Ano
    [2019] eKLR

    Fair administrative action requirements under Article 47 and the Fair Administrative Action Act

  • Kenya Human rights Commission & Ano v Non-Governmental Organizations Coordination Board & Ano
    [2018] eKLR

    Certiorari to quash unlawful decisions

  • Judicial Service Commission v Mbalu Mutava & another

    Article 47(1) entrenches fair administrative action in the Bill of Rights

  • Pastoli v Kabale District Local Government Canal & others
    (2008) 2 EA 300

    Conditions for grant of certiorari

  • Macfoy v United Africa Co Ltd
    [1961] 3 All ER 1169

    A void act is a nullity needing no order to set aside

  • David Gitau Thairu v County Government of Machakos & 2 others
    [2020] eKLR

    Circumstances for award of exemplary damages against government

  • Mikidadi v Khaigan & another
    [2004] eKLR

    Criteria for exemplary damages

  • Commission on Administrative Justice v Kenya Vision 2030 Delivery Board & 2 others
    [2019] eKLR

    Compensation for rights violations; noted as overturned by the Supreme Court

  • SMS Kopuz Gida v Erycom Desire (Alias) & 8 others
    Nairobi High Court Commercial & Admiralty Division Case No E551 of 2020

    Test for awarding costs to an interested party

  • Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others
    [2017] eKLR

    Role and import of interested parties

Jurisdiction invoked
Articles 23, 40, 47 and 165 of the Constitution (enforcement of Bill of Rights jurisdiction of the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Coastal Properties Limited v County Government of Kwale; Director of Survey Kwale County & 3 others (Interested Parties)", Case Analysis (2022). Environment & Land Petition 13 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15337/eng@2022-11-28

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