Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedPetition dated 28th September 2020· [2024] KEELC 714 (KLR)

Athman v Kilifi Plantations Coastal Limited & 5 others (Petition E009 of 2020) [2024] KEELC 714 (KLR)

Environment and Land Court
16 February 2024
MOM.A. Odeny
4,146 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court cancelled private beach-front titles carved from a public sea access, ruling illegally acquired land gets no constitutional protection.

What this practically means

#

Executive summary

#
The Petitioner, a Kilifi County resident suing on his own behalf and for fellow residents, challenged the creation, alienation and registration of LR V/278 (now LR V/1625) and LR V/279 (now LR V/1626), parcels curved out of a beach access road and 150-metre sea frontage originally designated as public utility in Survey Plan FR 111/37. He sought declarations of illegality and unconstitutionality, certiorari to quash the alienation, mandamus to cancel the registrations and to compel re-survey restoring the original public access. The 1st Respondent claimed it had complied with all legal requirements upon change of user and re-survey, obtaining title in 1994; the 2nd Respondent pleaded innocent purchaser status; the state Respondents maintained that surveys in 1968, 1993 and 2012 lawfully created sea access within their mandate. The court first found the Petitioner had locus standi under Articles 22 and 258, citing Mumo Matemu and Sollo Nzuki, and that the petition satisfied the Anarita Karimi Njeru precision threshold. On the merits, the court held the Respondents failed to establish the process followed in the survey, re-survey and allocation of public land. Applying Dina Management and Kunste Hotel, it held the flawed process defeated claims of indefeasibility and bona fide purchase, since Article 40 does not protect unlawfully acquired property and affected parties should have been heard before allotment. The Petition was allowed; declarations issued that the creation, registration and alienation of the parcels were illegal and unconstitutional; certiorari quashed the alienation; mandamus issued compelling cancellation of the registrations and re-survey to restore the public beach access road and sea frontage; each party was to bear their own costs.

Key legal issues

#
01

Whether the Petitioner had locus standi and the petition met the constitutional threshold

Holding

The Petitioner, acting in the public interest and as a member/interest of a class of persons, had locus standi and the petition met the threshold, having particularised the complaint with precision.

Reasoning

Relying on Mumo Matemu and Sollo Nzuki, the court held that standing in public law litigation has been relaxed under Articles 22(2) and 258(2). The Petitioner sued on his own behalf and for Kilifi residents, and had particularised with precision how public land designated in Survey Plan FR 111/37 was surveyed and re-surveyed and allocated to private individuals, satisfying the Anarita Karimi Njeru precision rule.

p. 8
02

Whether the suit parcels were public land unlawfully alienated, defeating claims of indefeasible title and bona fide purchase

Holding

The survey, re-survey and allocation of public land reserved for public use was flawed; the titles were not protected under Article 40 and the alienation was illegal and unconstitutional.

Reasoning

It was not in dispute that a 150-metre sea frontage was converted into plots LR V/278 and LR V/279, leaving a 6-metre access. The Respondents did not establish the process followed to survey and allocate the parcels. Relying on Dina Management, the court held that where the process preceding issuance of title did not comply with law, the title is not indefeasible and Article 40(6) does not protect unlawfully acquired property. The public and residents should have been consulted per Commissioner of Lands v Kunste Hotel.

p. 9

Legal principles established

#
  • A constitutional petition must identify with reasonable precision the constitutional provisions alleged to be violated and the manner of violation.
  • A title is defeasible where the process preceding its issuance did not comply with the law; Article 40 does not protect unlawfully acquired property and a party with a challenged root of title cannot claim bona fide purchaser protection.
  • Where an allotment of public land is likely to affect the rights of third parties, such parties must be heard before allotment; failure to do so renders the allotment null and void.
  • Locus standi is distinct from the merits; public interest litigation standing has been relaxed under Articles 22 and 258 of the Constitution.

Court orders

#
  1. 1.A declaration that the creation and subsequent registration of LR V/278, currently LR V/1625 and LR V/279, currently LR V/1626 which were curved out of the beach access road and the sea frontage thereto was illegal, unconstitutional, null and void
  2. 2.A declaration that the alienation of LR V/1625 and LR V/1626 to the 1st and 2nd Respondents was illegal and unconstitutional
  3. 3.An order of certiorari quashing the decision of the 3rd Respondent to alienate LR V/1625 and LR V/1626 to the 1st and 2nd Respondents
  4. 4.An order of mandamus compelling the 3rd Respondent to cancel the registration of the 1st and 2nd Respondents as proprietors of LR V/1625 and LR V/1626
  5. 5.A declaration that the initial LR Group V/39/R and its accompanying sea frontage as designated in Survey Plan FR 111/37 is public property held in trust for the residents of Kilifi County and the public
  6. 6.An order of mandamus compelling the 6th Respondent to re-survey for purposes of restoration of the beach access road LR Group V/39/R and the sea frontage as formerly captured in Survey Plan FR 111/37
  7. 7.Each party to bear their own costs

Authorities

#

Legislation

  • Constitution of KenyaArticle 22(1)-(4)
  • Constitution of KenyaArticle 258(1)-(2)
  • Constitution of KenyaArticle 259(1)
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 40(6)
  • Constitution of KenyaArticle 3(1)
  • Constitution of KenyaArticle 62(2)
  • Government Lands Act
  • Civil Procedure RulesOrder 21 [1]

Cases cited (10)

  • Kiluwa Limited & Another v Commissioner of Lands & 3 others
    (2015) eKLR
  • Kenya National Highway Authority v Shalien Masood Mughal & 5 others
    [2017] eKLR
  • Hamid Abdalla Mbarak v Registrar of Titles & 3 others; Will W. M. Omido & another (Interested Parties)
    [2020] eKLR
  • Falcon Global Logistics Co. Limited v Management Committee of Eldama Ravine Boarding Primary School
    [2018] eKLR
  • Isaac Gathungu Wanjohi & another v Attorney General & 6 others
    [2012] eKLR
  • Chunilal V. Mehta Vs. Century Spinning and Manufacturing Co.
    AIR 1962 SC 1314
  • Mumo Matemo v Trusted Society of Human Rights Alliance
    Civil APP.290/2012 (2013) eKLR
  • Sollo Nzuki v Salaries and Remuneration Commission & 2 others
    [2019] eKLR
  • Dina Management Limited v County Government of Mombasa & 5 others
    (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR)
  • Commissioner Of Lands v Kunste Hotel Limited
    [1997] eKLR
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution of Kenya (constitutional petition)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Athman v Kilifi Plantations Coastal Limited & 5 others (Petition E009 of 2020) [2024] KEELC 714 (KLR)", Case Analysis (2024). Petition dated 28th September 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/714/eng@2024-02-16

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