How company paid Sh15m to acquire Mama Ngina Waterfront land

A private company's effort to authenticate ownership of a parcel of public land at the Mama Ngina Waterfront Park in Mombasa has been thwarted by the courts.
Environment and Land Court Judge Nelly Matheka ruled that the title of the land issued to a private individual was irregular and a nullity and must be canceled.
“Section 26 of the Land Registration Act which guarantees the concept of indefeasibility of title does not extend to any property that has been found to have been unlawfully acquired,” said the Judge.

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Crescent Properties Development Limited had told the court that it purchased the land back in 1996 at Sh15 million.
The company moved to court seeking a declaration that it was the legal owner of the property, triggered by the national government’s move to repossess all public land forming part of the Mama Ngina Waterfront Park in 2019.
It was during this repossession for the redevelopment of the recreational facility that government authorities demolished a wall erected by the firm on the land.
The firm asked the court to find that the title issued to it was valid and indefeasible and that the plot, Mombasa/Block XXVI/408, is private property and does not form part of Mama Ngina Drive.

It asked for damages for trespass, payment of Sh5 million for the destruction of its perimeter wall and an order preventing anyone — including government agencies — from interfering with the property.
The company told the court that it bought the property in 1996 from Neema Gardens Flats Limited and became its registered proprietor, when it was issued with a certificate of lease for a term of 99 years from September 1985.
Court documents show that the lease transferred to the firm by Neema Gardens Flats Limited was a grant from the government under the now-repealed Government Land Act.
The said lease was a grant from then President Daniel Arap Moi, for consideration of Sh80,000, and it was signed by James Raymond Njenga, who was the then Commissioner of Lands.
“Ever since its registration, the company has been in physical occupation of the land suit, paying the requisite land rent to the national government and land rates to the County Government of Mombasa,” it said in its court papers.
The firm then constructed a perimeter wall around the plot, but it was demolished by the national government during the repossession of public land in 2019.

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Since the property shares a boundary with the park, the firm said the government contended that the same was part of the park and proceeded to maliciously destroy the boundary wall exposing it to loss and damage.
The firm maintained that its property was not among the plots listed in a Legal Notice No. 79 of 2005 issued by the then Minister of State for National Heritage.
Further, the firm maintained that the property was not listed in the Ndung’u Report as part of public land covering Mama Ngina Drive (later renamed Mama Ngina Waterfront).
However, the National Land Commission (NLC), which was sued in the matter, maintained that the land in question was and remains public land, unavailable for sale or alienation to any private person or entity by the government.
“The said Legal Notice cannot be a basis for the unlawful occupation of the suit property by the plaintiff,” said the commission.
Further, NLC said the Ndung’u Report was not exhaustive and that the mere fact that the suit property was not listed does not mean it ceases to be public land.

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The Judge agreed with the NLC, noting that evidence shows that the property was government land at the time of its alienation, which was done under the repealed Government Land Act.
The judge further said the Commissioner of Land had no authority to alienate unalienated land as it was only the President who had the sole discretion to do that.
Where the President delegated the powers to alienate government land to the Commissioner of Lands, the court said these powers were limited to certain circumstances such as religious, charitable, educational, or sports and other purposes set out in the said Act.
“None of the circumstances set out there apply to this case as none have been demonstrated by the firm. The company has not established that the President authorised the Commissioner of Lands to alienate the property to Neema Gardens Flats Limited,” said the judge.
Justice Matheka further said the Commissioner of Lands could not purport to pass any valid title to Neema Garden Flats Limited that could be registered as a Certificate of Lease under the Registered Land Act Cap 300 (repealed).
The Judge concluded that the alienation of the land to Neema Gardens Flats, who later transferred their interest to the plaintiff was unlawful and unprocedural.
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