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Supreme CourtDismissedPetition 37 of 2019

Pati Limited v Funzi Island Development Limited & 4 others

Supreme Court of Kenya
16 July 2021
Philomena Mbete MwiluP M MwiluMohammed Khadhar IbrahimM K IbrahimSmokin Charles WanjalaS C WanjalaNjoki Susanna NdunguNjoki NdunguIsaac LenaolaIsaac Lenaola
8,275 words in judgment
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·~33 min to read original · ~4 min brief

The bottom line

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The Supreme Court ruled that land on Funzi Island was a protected mangrove forest, making its allocation invalid.

What this practically means

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The Supreme Court decided that a piece of land on Funzi Island was a mangrove forest, not trust land. It was declared a forest in 1932 and lies between high and low water marks, so it is public land that cannot be sold or given to anyone. Even if it were trust land, the county council did not follow the law when they tried to set it apart. The Court of Appeal's decision was upheld, and the allocation was quashed.

Executive summary

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This was an appeal from the Court of Appeal judgment that quashed the allocation of land on Funzi Island to Pati Limited. The Supreme Court certified the appeal as involving a matter of general public importance: whether the suit land was initially trust land, a public beach, or a mangrove forest protected under the Forest Act, and if trust land, whether it was properly allocated. The appellant argued the land was trust land legally allocated by Kwale County Council, while the respondents contended it was a mangrove forest and public beach. The Supreme Court, in a unanimous judgment delivered by Deputy Chief Justice Mwilu, dismissed the appeal and affirmed the Court of Appeal decision. The court held that the suit land was a mangrove forest as declared by Proclamation No 44 of 1932 and Legal Notice No 174 of 1964, and its status as a forest was saved by the Forest Conservation and Management Act 2016. The land, being between high and low water marks, was not available for allocation as trust land. Additionally, even if it were trust land, the court found the alienation was procedurally irregular: the gazette notice specified 0.7 hectares but 3.126 hectares were allocated without further notice or consent; no compensation date was specified; and the land was set apart for a boat landing base but a five-star hotel was constructed. The appeal was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the land subject matter of this suit was initially Trust Land, a public beach or a mangrove forest protected under the Forest Act; and if it was Trust Land and or public land, it was properly, regularly and legally allocated to Hon. Mwamzandi who later re-allocated it to Pati Limited, the appellant herein.

Key legal issues

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01

Whether the suit land was a mangrove forest protected under the Forest Act or trust land.

Holding

The suit land was a mangrove forest as declared by Proclamation No 44 of 1932 and Legal Notice No 174 of 1964, and its status as a forest was saved by the Forest Conservation and Management Act No 34 of 2016. It was not trust land available for allocation.

Reasoning

The court examined the legislative history, noting that Proclamation No 44 of 1932 was made under the Forests Ordinance cap 176, which was not repealed by subsequent Forest Acts. The Third Schedule of the Forest Conservation and Management Act 2016 expressly saved mangrove swamp forests declared under Notice No 44 of 1932. The appellant's own affidavit conceded that the land floods and becomes submerged at high tides, confirming it lies between high and low water marks as described in the Proclamation. Therefore, the land was a mangrove forest and could not be allocated as trust land.

p. 15
02

Even if the suit land were trust land, was it legally set apart?

Holding

The setting apart was irregular and not in accordance with the law.

Reasoning

The court found multiple procedural defects: the gazette notice specified 0.7 hectares but 3.126 hectares were allocated without further notice or consent; the notice did not specify a date for compensation applications as required by section 7(3) of the Trust Land Act; and the land was set apart for a boat landing base but a five-star hotel was constructed without any change of purpose notice. These failures contravened sections 117 and 118 of the retired Constitution and the Trust Land Act.

p. 3

Legal principles established

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  • Land declared a mangrove forest under Proclamation No 44 of 1932 is public land, not available for allocation as trust land.
  • Mangrove forests between high and low water marks are protected under the Forest Conservation and Management Act, even if declared earlier.
  • County councils must strictly comply with the Trust Land Act when setting apart trust land, including correct acreage, purpose, and compensation dates in the gazette notice.
  • If a gazette notice specifies one acreage but a larger area is allocated, that allocation is illegal.
  • If land is set apart for one purpose but used for another without a change notice, the allocation is invalid.

Court orders

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  1. 1.The petition of appeal dated September 3, 2019 is hereby dismissed
  2. 2.The judgment of the Court of Appeal dated February 24, 2014 is hereby affirmed
  3. 3.The appellant shall bear the costs of the appeal.

The bench

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

Philomena Mbete Mwilu
P M MwiluDCJ
Currently serving
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S C WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
Isaac LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No. 252 of 2005
Jurisdiction invoked
Articles 163(4)(b) and 163(5) of the Constitution

Relief refused

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Setting aside the orders of the Court of Appeal and reinstating the High Court judgment

The Supreme Court found that the suit land was a mangrove forest and not trust land, and that even if it were trust land, the alienation was irregular.

p. 16

Costs

The appellant shall bear the costs of the appeal.

Quotable passages

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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 inescapable conclusion is that the suit land falls within the frontiers of what constitutes a mangrove forest as per the Proclamation. The same could therefore, not have been available for allocation within the meaning of the retired Constitution or the Trust land Act.
p. 15 Status of mangrove forest land
The entire process and notice for setting apart, fell far short of the requirements of the Constitution and the law.
p. 3 Irregular alienation of trust land
The petition of appeal dated September 3, 2019 is hereby dismissed
p. 17 Final orders
The judgment of the Court of Appeal dated February 24, 2014 is hereby affirmed
p. 17 Final orders
The appellant shall bear the costs of the appeal.
p. 17 Costs order

Key timeline

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1932
Proclamation No 44 declared the land a mangrove forest.
1964
Legal Notice No 174 reaffirmed the mangrove forest status.
2014-02-24
Court of Appeal quashed the allocation of the land.
2019-09-03
Pati Limited filed a petition of appeal to the Supreme Court.
2021
Supreme Court dismissed the appeal and affirmed the Court of Appeal decision.

Practical implications

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For lawyers

Strict compliance with land allocation law

Lawyers must advise clients that any allocation of land from a county council must strictly follow the Trust Land Act and the retired Constitution. The gazette notice must specify the correct acreage, purpose, and a date for compensation applications. Failure to do so renders the allocation void, as seen in this case.

For businesses

Due diligence on land classification

Businesses investing in land, especially near coasts, must verify whether the land is classified as a mangrove forest or public land. Historical declarations like Proclamation No 44 of 1932 can override later title deeds. Without this check, investments can be lost, as happened to Pati Limited.

For individuals

Know your rights to public land

Individuals should understand that land between high and low water marks is public land, often protected as mangroves. It cannot be allocated to private persons. If you suspect illegal allocation, you can challenge it in court. This case confirms that community rights to such land are protected.

Frequently asked questions

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What is the status of mangrove forest land in Kenya?+

Mangrove forest land declared under Proclamation No 44 of 1932 is public land and cannot be allocated as trust land. It is protected under the Forest Conservation and Management Act, 2016, and lies between high and low water marks.

Can county councils allocate trust land without following the Trust Land Act in Kenya?+

No, county councils must strictly follow the Trust Land Act. They must specify the correct acreage, purpose, and a date for compensation in the gazette notice. Failure to do so makes the allocation illegal, as ruled in Pati Limited v Funzi Island.

What happened in the Pati Limited v Funzi Island case in Kenya?+

The Supreme Court dismissed an appeal by Pati Limited, affirming that land on Funzi Island was a mangrove forest, not trust land. The allocation was invalid, and the land remains public. The Court of Appeal's decision was upheld.

Is land between high and low water marks public land in Kenya?+

Yes, land between high and low water marks is public land, especially if declared as a mangrove forest. It cannot be allocated to private individuals and is protected by law, as confirmed by the Supreme Court in this case.

Later judgments citing this (11)

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

Cite this brief

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Cite this brief

Caselaw, "Pati Limited v Funzi Island Development Limited & 4 others", Case Analysis (2021). Petition 37 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/29/eng@2021-07-16

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