Coastal Properties Limited v County Government of Kwale; Director of Survey Kwale County & 3 others (Interested Parties)
The bottom line
#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
#Executive summary
#Key legal issues
#Existence of a road reserve through the suit property
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
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.
Violation of Article 40 right to property
The respondent's entry, paving and creation of a motorable road through private land without compulsory acquisition or compensation violated Article 40
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.
Violation of Article 47 fair administrative action
The respondent infringed Article 47 by failing to give notice, a hearing or written reasons before demarcating and grading the petitioner's land
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.
Certiorari against the demarcation decision
Certiorari issued to quash the demarcation as the decision was grossly unreasonable, irrational and illegal, and being void ab initio had to be recalled
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.
Exemplary damages quantum
Kshs 5,500,000 awarded as aggravated exemplary damages, sufficient to cover all damage including trespass and wastage
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.
Cross petition against Leisure Lodges Limited
Only a demolition order issued against the encroaching perimeter wall; damages and costs refused
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.
Legal principles established
#- 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
#- 1.Declaration that there is no road reserve cutting through Kwale/Diani Beach Block 997
- 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.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.Order of certiorari quashing the decision demarcating a portion of the petitioner's property as a road reserve
- 5.Award of Kshs 5,500,000 as aggravated exemplary damages to the petitioner
- 6.Costs of the petition to be borne by the respondent
- 7.The 4th Interested Party to have no costs on the petition
- 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.Each party to bear their own costs on the cross petition
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- County Government of Meru v Mathiu (Environment and Land Appeal E011 of 2024) [2024] KEELC 7321 (KLR)[2024] KEELC 7321 (KLR)23 Oct 2024followed
Cite this brief
#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.