On November 23, 1989, then Commissioner of Lands Wilson Gachanja allocated President Daniel Toroitich arap Moi a 1.2-acre public beach plot in Nyali, Mombasa.
The land — registered as MN/I/6053 — is adjacent to the Indian Ocean. A title was subsequently processed, issued to Moi and the plot was converted to private property.
Six years later, Moi transferred the land to Bawazir & Co. (1993) Ltd in June 1996.
The latter sold the property to Dina Management Limited in October 2006 for Sh18 million.
Dina started development of the property by constructing a boundary wall. During the transaction it conducted due diligence and the Ministry of Lands confirmed the validity of the title, stating that “the above plot is the genuine plot”.
The company, however, is now counting losses after losing a six-year-old court battle that started at the Environment and Land Court in Mombasa in 2017 and ended last week at the Supreme Court in Nairobi.
The apex court ruled that the title issued to Moi was illegal and irregular since the suit property was public space reserved for a road and not private land.
“The suit property was at the time designated as an open space. Having been designated as such, it was rendered a public utility and could not be described as unalienated public land as urged by Dina. It was, therefore, not available for alienation to H. E. Daniel T Arap Moi or for further alienation,” said the Supreme Court bench led by Deputy Chief Justice Philomena Mwilu.
The court said that although Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out in the said provision, that right cannot be extended to cover or protect any property that has been unlawfully acquired.
“Having found that the first registered owner (Moi) did not acquire title regularly, the ownership of the suit property by Dina Management Ltd thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, Dina could not benefit from the doctrine of bona fide purchaser,” ruled the court.
The other judges in the bench are Justices Smokin Wanjala, Njoki Ndung'u, Isaac Lenaola and William Ouko.
“We therefore agree with the appellate court that Dina’s title is not protected under Article 40 of the Constitution and the land automatically vests to the county government of Mombasa pursuant to Article 62(2) of the Constitution. We hasten to add that, the suit property, by its very nature being a beach property, was always bound to be attractive and lucrative. Dina ought to have been more cautious in undertaking its due diligence,” said the judges.
The apex court further found that there were no documents to support allocation of the land to Moi.
These were the letter of application by Moi addressed to the Commissioner of Lands seeking to be allocated the suit land and a Part Development Plan (PDP) showing the suit property in relation to the neighbouring parcels of land.
“We therefore agree with the trial court and the appellate court that the allocation of the suit property to H.E. Daniel Arap Moi was irregular,” said the apex court judges.
“Before allocation of the unalienated government land, there ought to have been processes to be followed prior. Further, we cannot, on the basis of indefeasibility of title, sanction irregularities and illegalities in the allocation of public land. It is not enough for a party to state that they have a lease or title to the property,” they added.
The apex court upheld the appellate court's finding that alienation of the open space to Moi was unprocedural to the extent of blocking existing access to the sea.
It was also unlawful for lack of an approved PDP by the Director of Physical Planning and Central/Regional Authority in compliance with the provisions of the Land Planning Act Cap 303 (repealed by the Physical Planning Act Cap 286).
The PDP would have settled the issue of whether there was a public access road to the beach through the suit property or at the positioning of the high-water mark in relation to the suit property.
According to the court, in the procedure for the allocation of unalienated land, planning comes first, then surveying. A letter of allotment is invariably accompanied by a PDP with a definite number, which would then be taken to the Department of Survey for surveying.
Thereafter, it is referred to the Director of Surveys for authentication and approval. It is after that process that a land reference number is issued in respect of the plot.
Though the suit property was allocated to Moi, he was not a party to the court dispute that started in 2017. Moi died in 2020.
The dispute in court was between Dina against Mombasa County government, Chief Land Registrar, Mombasa Land Registrar, Director of Surveys, Director Physical Planning and the Attorney-General.
Court documents indicate that Moi had initially been allocated 0.45 hectares of the beach land by the Commissioner of Lands. The land was expanded to 0.49 hectares and a freehold title was thus processed and lease forwarded to the Registrar of Titles Mombasa.
Prior to the allocation of the suit property, records at the lands’ office indicate that the property was an open space.
Apart from the Mombasa government, the other defendants contended that President Moi, as the first registered owner of the plot, obtained a good title.
They said the title held by Moi was protected under Section 26 of the Land Registration Act and Section 23 of the Registration of Titles Act Cap 281 (repealed). Additionally, that the suit property was not public land.
For its part, the county government urged that the right procedure was not followed.
The court dispute started in September 2017 after the county government forcefully entered the property registered to Dina Management Ltd, demolished the entire perimeter wall facing the beachfront and flattened the whole property to be at the same level as the beach.
The county government contended that the entry and demolition was an enforcement action to create a thoroughfare to the beach as the suit property was public land.
Dina argued that the suit property was previously unalienated government land which was lawfully alienated as private property in 1989.