North Coast Development Company Limited v County Government of Mombasa & 2 others (Constitutional Petition 54 of 2021) [2024] KEELC 1268 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and res judicata/sub judice vis-à-vis the pending magistrate's court suits
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
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.
Whether the Petition met the constitutional pleading threshold
The Petition complied with the Anarita Karimi Njeru standard of reasonable precision, particularising the constitutional provisions infringed and the manner of infringement
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.
Validity of the Petitioner's title to Mombasa/Block XLVI/138
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
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.
Whether the Petitioner's fundamental rights were infringed
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
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).
Compensation
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
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.
Legal principles established
#- 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
#- 1.The Petition dated 8th December, 2021 be and is found to be meritorious and hence hereby allowed in its entirety
- 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.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.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.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.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.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.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.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.The costs of the Petition awarded to the Petitioner to be borne by the 1st, 2nd & 3rd Respondents jointly and severally
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.