Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Supreme CourtAllowedPetition 14 of 2017

Kiluwa Limited & another v Business Liaison Company Limited & 3 others

Supreme Court of Kenya
6 August 2021
Philomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaI. Lenaola
8,463 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

#

The Supreme Court ruled that the public has a right to access the ocean through the foreshore, and private walls blocking it are illegal.

What this practically means

#

The Supreme Court of Kenya decided that the beachfront land along the coast, including the foreshore and an extra 60 meters above the high-water mark, is public land. No private company or individual can build a wall or structure that blocks the public from accessing the ocean. The court ordered Kenya Ports Authority to remove a wall it built on this public land, affirming that everyone has a right to enjoy the beach.

Executive summary

#
This appeal arose from a dispute over three beachfront parcels of land in Shanzu, Mombasa. The appellants claimed that the Commissioner of Lands illegally alienated portions of a 60-metre reserve strip above the high-water mark (the foreshore) to the 1st and 2nd respondents, and that the respondents subsequently erected a wall blocking their access to and view of the Indian Ocean. The High Court allowed the appellants' constitutional petition, but the Court of Appeal reversed, holding that Article 47 of the Constitution could not apply retrospectively, that the claim was time-barred, and that the respondents' titles were indefeasible. The Supreme Court allowed the appeal, setting aside the Court of Appeal judgment and affirming the High Court's decision to the extent consistent with its own declarations. The Supreme Court held that: (1) it had jurisdiction because the Court of Appeal judgment was delivered in 2016, well after the Constitution came into force; (2) Article 47 of the Constitution sets out substantive, normative entitlements that can apply retrospectively and were not suspended by the requirement for enabling legislation; (3) the claim was not time-barred because the cause of action arose when the offending wall was erected in August 2011, not when the land transfers were completed in 1992; and (4) the disputed land was public land forming part of the foreshore, reserved for government/public use under regulation 110(1) of the Survey Regulations and section 82 of the Government Lands Act, and was therefore not available for private allocation. The Court declared the allocations illegal and ordered the removal of the wall and other structures. Costs were awarded to the appellants against the 1st and 2nd respondents.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether this court has jurisdiction to determine the appeal herein
  2. 2.Whether the 2010 Constitution (article 47) applies retrospectively to this dispute
  3. 3.Whether the appellants were time-barred in lodging their claim
  4. 4.Whether the portion of land which is the subject matter of the dispute was public land, and if so, whether it was available for allocation

Key legal issues

#
01

Whether the Supreme Court has jurisdiction to hear an appeal from a Court of Appeal judgment delivered after the 2010 Constitution came into force, where the underlying dispute concerns events predating the Constitution.

Holding

The Supreme Court has jurisdiction. The respondents' challenge to jurisdiction was baseless because the Court of Appeal judgment under appeal was delivered on November 11, 2016, well after the Constitution came into force, and the issue of the High Court's jurisdiction was never raised in the lower courts.

Reasoning

The respondents argued that the High Court lacked jurisdiction over a dispute predating the Constitution and that the Supreme Court lacked jurisdiction over matters finalized before the Constitution. The Supreme Court found these arguments baffling because the Court of Appeal judgment was delivered in 2016, long after the Constitution's commencement, and the High Court's jurisdiction was never challenged in the lower courts. The Court held it was properly seized of the matter.

p. 14
02

Whether Article 47 of the 2010 Constitution applies retrospectively to an administrative decision made before its promulgation.

Holding

Article 47 can apply retrospectively. The Court held that Article 47 sets out substantive, normative entitlements that were not suspended by the requirement for enabling legislation under Article 47(3). The absence of such legislation does not bar a court from applying the provision, especially given Article 20(3) which requires courts to develop the law to give effect to rights.

Reasoning

The Court distinguished the SK Macharia case, noting that it did not rule out retrospective application entirely but cautioned against it where the language of a provision is purely forward-looking. The Court found that Article 47 is expressed in clear normative terms ('every person has the right to...') and that the legislation contemplated under Article 47(3) was meant to perfect, not suspend, the enjoyment of these rights. The Court also relied on Article 20(3) which requires courts to adopt the interpretation that most favours the enforcement of a right.

p. 16
03

Whether the appellants' claim was time-barred due to a 20-year delay from the date of the land transfers.

Holding

The claim was not time-barred. The cause of action arose not at the time of the transfers (1989-1992) but at the time the offending wall was erected (August 2011), and the petition was filed seven months later in February 2012.

Reasoning

The Court found that the gravamen of the appellants' grievance was the allocation of the disputed land and the consequent erection of the wall. The cause of action therefore arose at the commencement of the erection of the wall, not at the completion of the transfers. Since the wall was erected in August 2011 and the petition was filed in February 2012, there was no inordinate delay. The Court also noted that for a party to be time-barred, the limitation must be stated in the Constitution, statute, or common law, and the court must determine when the cause of action arose.

p. 3
04

Whether the disputed land parcels (MN/I/5901 and MN/I/5902) were public land and available for allocation.

Holding

The disputed land was public land, specifically part of the foreshore, and was not available for allocation to private entities. The allocation was illegal.

Reasoning

The Court examined Article 62 of the Constitution, section 45 of the Survey Act, regulation 110(1) of the Survey Regulations, and section 82 of the Government Lands Act. It found that the additional portion of land allocated to the respondents was hived off the coastal foreshore, which consists of land between the low-water mark and high-water mark plus an additional 60 metres above the high-water mark. This land is reserved for government/public use. Section 82 of the Government Lands Act expressly forbids the conferment of any right to the foreshore by a conveyance, lease, or license. The Court also held that un-alienated government land is public land under Article 62.

p. 18

Legal principles established

#
  • Un-alienated government land is public land under Article 62 of the Constitution.
  • The public has a legal right (easement) to access the ocean through the foreshore.
  • Private entities cannot block public access to the foreshore with walls or structures.
  • Article 47 on fair administrative action applies even without enabling legislation.
  • A claim is not time-barred if the cause of action arises from the erection of a wall, not from earlier land transfers.

Court orders

#
  1. 1.The appeal is hereby allowed.
  2. 2.The Judgment of the Court of Appeal dated November 11, 2016 is hereby set aside.
  3. 3.The Judgment of the High Court dated October 13, 2015 is hereby affirmed only to the extent consistent with and limited to our declarations in (a)(b) and (c) above.
  4. 4.The 1st and 2nd respondents herein, shall take immediate action to remove the offending wall and any other structures that they may have caused to be erected on land parcels No. MN/1/5901 and MN/1/5902.
  5. 5.The costs of this appeal shall be borne by the 1st and 2nd respondents.

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Mombasa
Civil Appeal No 89 of 2015
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The 1st and 2nd respondents herein, shall take immediate action to remove the offending wall and any other structures that they may have caused to be erected on land parcels No. MN/1/5901 and MN/1/5902.
p. 19 Final orders - mandatory injunction to remove structures
The right of access to the Ocean through the foreshore by members of the public or any other owner of land along the coast (ie, the appellants) whether for economic, recreational or aesthetic reasons, is a public right secured by a public easement.
p. 18 Public easement over foreshore
In our view, contrary to the holding by the Court of Appeal, these are substantive entitlements whose enjoyment was not intended to be suspended by sub-article 3 thereof.
p. 16 Retrospective application of Article 47
Therefore, the cause of action arose, not at the time of the completion of the transfers, but at the commencement of the erection of the wall.
p. 3 Limitation of actions - when cause of action arises
Such foreshore consists of land lying between the Low-Water Mark and the High-Water Mark plus an additional 60 metres above the High-Water Mark within the meaning of regulation 110(1) of the Survey Regulations of 1994. Such land is reserved for Government/Public use.
p. 18 Definition of foreshore and public reservation

Key timeline

#
1989-1992
Land transfers of parcels MN/I/5901 and MN/I/5902 occurred.
August 2011
Kenya Ports Authority erected a wall on the disputed land, blocking ocean access.
February 2012
Mombasa Beach Hotel filed a petition in the High Court.
October 13, 2015
High Court ruled in favor of Mombasa Beach Hotel.
November 11, 2016
Court of Appeal reversed the High Court decision.
2021-09-23
Supreme Court allowed the appeal, restoring the High Court's decision and ordering removal of the wall.

Practical implications

#
For lawyers

Retrospective application of Article 47

When advising clients on pre-2010 administrative decisions, note that Article 47 of the Constitution can apply retrospectively. The Supreme Court held that the right to fair administrative action is substantive and not suspended by the lack of enabling legislation. Use Article 20(3) to argue for the most favorable interpretation of rights, even for actions taken before the Constitution.

For businesses

No private ownership of foreshore

If your business owns coastal land, do not build structures on the foreshore or within 60 meters above the high-water mark. The Supreme Court confirmed this land is public and reserved for government use. Any wall or building blocking public access to the ocean is illegal and can be ordered removed. Review your property boundaries and consult a surveyor to avoid costly litigation.

For individuals

Your right to access the beach

You have a legal right to walk along the beach and access the ocean, even if a hotel or port authority builds a wall. The Supreme Court said this is a public easement that cannot be blocked. If you find a structure blocking your path to the shore in Kenya, you can report it to the National Land Commission or seek legal help to enforce your right.

Frequently asked questions

#
Can a hotel or company block public access to the beach in Kenya?+

No. The Supreme Court ruled that the foreshore and an extra 60 meters above the high-water mark are public land. No private entity can build a wall or structure that blocks the public from accessing the ocean. This right is protected by a public easement.

What is the foreshore in Kenyan law?+

Under Kenyan law, the foreshore is the land between the low-water mark and the high-water mark, plus an additional 60 meters above the high-water mark. It is reserved for public use and cannot be allocated to private individuals or companies.

Does Article 47 of the Kenyan Constitution apply to decisions made before 2010?+

Yes, the Supreme Court said Article 47 can apply retrospectively. The right to fair administrative action is a substantive right that was not suspended by the need for enabling legislation. Courts can apply it even to decisions made before the 2010 Constitution.

How long do I have to sue if someone blocks my access to the ocean in Kenya?+

The clock starts ticking when the blocking structure is built, not when the land was transferred. In this case, the wall was erected in August 2011, and the lawsuit filed in February 2012 was timely. Act quickly once a wall goes up to avoid limitation issues.

Later judgments citing this (25)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Kiluwa Limited & another v Business Liaison Company Limited & 3 others", Case Analysis (2021). Petition 14 of 2017. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/37/eng@2021-08-06

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