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ELCPartially AllowedConstitution Petition dated 8th December, 2021· [2024] KEELC 1268 (KLR)

North Coast Development Company Limited v County Government of Mombasa & 2 others (Constitutional Petition 54 of 2021) [2024] KEELC 1268 (KLR)

Environment and Land Court of Kenya
26 February 2024
19,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~79 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Environment and Land Court at Mombasa (Naikuni J) allowed in its entirety a constitutional petition by North Coast Development Company Limited against the County Government of Mombasa, the Inspector General of Police, the National Police Service and the Attorney General. The Petitioner, registered lessee of Mombasa/Block XLVI/138 under a 99-year lease from 1993, complained that the County Government, aided by police, demolished its perimeter wall and staircase, carted away its container twice, and repeatedly harassed its occupation of the property, while police failed to act on eight OB reports. The 1st Respondent alone replied, contesting jurisdiction on grounds of multiplicity of suits and asserting the land fell within the 60-metre riparian reserve. The court rejected the preliminary objections, holding the parties and issues differed from the pending CMCC suits and that constitutional claims lay outside the magistrate's jurisdiction. Applying the Anarita Karimi Njeru threshold, it found the Petition sufficiently pleaded. Under Sections 24, 25 and 26 of the Land Registration Act, the uncontroverted certificate of lease established the Petitioner as the lawful, indefeasible owner, with the Coast Regional Surveyor's letter confirming the parcel extends to the High Water Mark. The court held the Respondents' actions infringed Article 40 and constituted trespass under the Trespass Act, and that the 2nd Respondent's inaction violated Articles 47, 239(3)(a), 244 and 245(2)(b). Special damages of Kshs. 21,000,000/- were refused for want of receipts, but general damages of Kshs. 25,000,000/- were awarded for trespass, with a permanent injunction, a mandatory injunction compelling police investigations, restoration of the property, and costs against the 1st, 2nd and 3rd Respondents.

Key legal issues

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01

Jurisdiction and res judicata/sub judice vis-à-vis the pending magistrate's court suits

Holding

The Court has jurisdiction under Article 162(2)(b) and the ELC Act; theobjections based on the pending CMCC suits failed because the parties and issues differ and the constitutional claims fell outside the magistrate's court's jurisdiction

Reasoning

The 1st Respondent argued multiplicity of suits, citing CMCC No. E264 of 2020 and CMCC No. E1466 of 2021. The court applied the doctrine from Owners of Motor Vessel 'Lillian S' and Samuel Kamau Macharia on jurisdiction, and found that the constitutional petition raised breaches of constitutional rights never pleaded in the lower court suits, that parties differed, and that the issues here occurred after filing of the lower court case, so res judicata and sub judice were not triggered.

p. 24
02

Whether the Petition met the constitutional pleading threshold

Holding

The Petition complied with the Anarita Karimi Njeru standard of reasonable precision, particularising the constitutional provisions infringed and the manner of infringement

Reasoning

Applying Anarita Karimi Njeru, Trusted Society of Human Rights Alliance and Meme v Republic, the court found the Petition disclosed the parties, facts, the Articles violated (40, 47, 239(3)(a), 244, 245(2)(b)) and the manner of violation, giving proper notice to the Respondents. The court held that the test does not demand mathematical precision but substantive sufficiency.

p. 27
03

Validity of the Petitioner's title to Mombasa/Block XLVI/138

Holding

The Petitioner is the absolute and lawful registered owner; the certificate of lease is prima facie evidence of bona fide ownership and was never impeached

Reasoning

Under Sections 24, 25 and 26 of the Land Registration Act, registration vests absolute ownership and a title may only be challenged on fraud, misrepresentation or illegal/unprocedural acquisition. The Petitioner's evidence, including the 99-year lease from 1993 and the Coast Regional Surveyor's letter confirming the parcel extends to the High Water Mark, was uncontroverted, as no Respondent filed a response to the Petition.

p. 28
04

Whether the Petitioner's fundamental rights were infringed

Holding

The Respondents infringed the Petitioner's Article 40 property rights through trespass, demolition, removal of the container and harassment, and the 2nd Respondent violated Articles 47, 239(3)(a), 244 and 245(2)(b) by failing to act on eight OB reports

Reasoning

The court found that the 1st Respondent's officers, county askaris and police entered and damaged the suit property without lawful justification, amounting to trespass under Section 3(1) of the Trespass Act and hooliganism contrary to the rule of law. The uncontroverted evidence of eight police reports at Tononoka Police Station with no action demonstrated partisanship by the 2nd Respondent in breach of Articles 47, 239(3)(a), 244 and 245(2)(b).

p. 32
05

Compensation

Holding

General damages of Kshs. 25,000,000/- awarded for trespass, but the special damages of Kshs. 21,000,000/- were declined for want of strict proof

Reasoning

Special damages require strict proof by receipts, and the Petitioner produced none. For general damages, applying Philip Ayaya Aluchio, Nakuru Industries Ltd v S S Mehta & Sons and Willesden Investments Ltd v Kenya Hotel Properties Ltd, and considering the expansive urban land, the court awarded Kshs. 25,000,000/- and also ordered restoration of the property to its original condition.

p. 35

Legal principles established

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  • A certificate of lease is prima facie evidence of ownership, and a registered proprietor's title can only be impeached on grounds of fraud, misrepresentation, or where it was acquired illegally, unprocedurally or through a corrupt scheme
  • Special damages must be both specifically pleaded and strictly proved with documentation such as receipts, and cannot be inferred from the act complained of
  • A public authority must act within the four corners of the law; every executive or administrative action must be anchored in law and cannot be taken capriciously, arbitrarily or without due process
  • The measure of general damages for trespass is the difference in the value of the plaintiff's property immediately after the trespass or the costs of restoration, whichever is less

Court orders

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  1. 1.The Petition dated 8th December, 2021 be and is found to be meritorious and hence hereby allowed in its entirety
  2. 2.A declaration that the Respondents, jointly and severally, have breached the Petitioner's constitutional right to acquire and own property as guaranteed by Article 40 of the Constitution of Kenya, 2010
  3. 3.A declaration that the Petitioner is the legal and rightful owner of the property known as Mombasa/Block XLVI/138 and has all the rights to occupy, develop and use the same without any interference from the Respondents
  4. 4.An order of Permanent Injunction restraining the Respondents jointly and severally, their agents, assigns, employees, officers and/or any person acting on their behalf from trespassing on, stepping onto, visiting, vandalizing, demolishing, and generally interfering with the Petitioner's ownership, rights, use and occupation of the property known as Mombasa/Block XLVI/138
  5. 5.A declaration that the failure by the 2nd Respondent and the police in general to act on the reports lodged to the police by the Petitioner is in contravention of Articles 47, 239(3)(a), 244 and 245(2)(b) of the Constitution
  6. 6.An order of Mandatory Injunction compelling the 2nd Respondent to act on the reports made to the police by the Petitioner through its officers or authorised agents at Tononoka Police Station by carrying out investigations, arrests and forwarding the files to the Director of Public Prosecutions
  7. 7.A declaration that the County Government of Mombasa illegally took away the Petitioner's Container Number MSKU 9887463 45G1 and illegally demolished and destroyed the Petitioner's wall erected on the suit property
  8. 8.An order of mandatory injunction compelling the 1st Respondent to ensure the suit property is restored to the condition they found it in, and the Petitioner to assess the value of all property destroyed and present it to the 1st Respondent for compensation
  9. 9.An award of Kenya Shillings Twenty-Five Million (Kshs. 25,000,000/-) as general damages for trespass on the property known as Mombasa/Block XLVI/138
  10. 10.The costs of the Petition awarded to the Petitioner to be borne by the 1st, 2nd & 3rd Respondents jointly and severally

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 3, 10, 23(1), 24, 259(1), 40, 47, 162(2)(b), 165(2)(d)(ii), 239(3)(a), 244, 245(2)(b)
  • Environment and Land Court Act, No. 19 of 2011Sections 3 and 13
  • Land Registration Act, No. 3 of 2012Sections 24, 25, 26(1) and 101
  • Land Act, No. 6 of 2012Section 150
  • National Police Service ActSection 8(1)
  • Fair Administrative Action Act, 2015Section 2
  • Civil Procedure Act, Cap. 21Sections 6, 7 and 27(1)
  • Trespass Act, Cap 294Section 3(1)
  • Survey ActSection 45
  • Survey RegulationsRegulation 110(2)
  • County Government By-Laws 1968
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 26(1) and (2)

Cases cited (23)

  • Evelyn College of Design Ltd v Director of Children's Department & another
    [2013] eKLR
  • Law Society of Kenya v Officer of the Attorney General & another; Judicial Service Commission (Interested Party)
    [2020] eKLR
  • Owners of Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    [2012] eKLR
  • In the Matter of Interim Independent Electoral Commission
    Constitution Application Number 2 of 2011
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Trusted Alliance Society of Human Rights v Attorney General & 5 Others
    [2013] eKLR
  • Thorp v Holdsworth
    (1886) 3 Ch. D 637
  • Meme v Republic
    [2004] 1 E.A. 124
  • Mumo Matemu v Trusted Society of Human Rights Alliance & Others
    [2013] eKLR
  • John Mbogua Getao v Simon Parkoyiet Mokare & 4 others
    [2017] eKLR
  • Trusted Society of Human Rights Alliance v Attorney General & 2 Others
    Civil Appeal No. 290 of (2012) eKLR
  • Republic v Kombo and 3 Others ex-parte Waweru
    [2008] 3 KLR (EP) 478
  • Hahn v Singh
    Civil Appeal No. 42 of 1983 [1985] KLR 716
  • Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited
    [2015] eKLR
  • Zacharia Waweru Thumbi v Samuel Njoroge Thuku
    [2006] eKLR
  • Sanya Hassan v Soma Properties Ltd
  • Philip Ayaya Aluchio v Crispinus Ngayo
    [2014] eKLR
  • Hostler v Green Park Development Co.
    986 S.W 2d 500 (No. App. 1999)
  • Nakuru Industries Limited v S S Mehta & Sons
    [2016] eKLR
  • Willesden Investments Limited v Kenya Hotel Properties Limited
    NBI H.C.C. No. 367 of 2000
  • Reids Heweet & Company v Joseph
    AIR 1918 cal. 717
  • Myres v Defries
    (1880) 5 Ex. D. 180
Jurisdiction invoked
Articles 162(2)(b) and 165(2)(d)(ii) of the Constitution of Kenya, 2010; Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 2011; Sections 101 of the Land Registration Act and Section 150 of the Land Act

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, "North Coast Development Company Limited v County Government of Mombasa & 2 others (Constitutional Petition 54 of 2021) [2024] KEELC 1268 (KLR)", Case Analysis (2024). Constitution Petition dated 8th December, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1268/eng@2024-02-26

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