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Court of AppealDismissedCourt of Appeal Civil Appeal (not expressly numbered in the judgment provided)

Dina Management Ltd v County Government of Mombasa & 5 others (Civil Appeal 150 of 2019) [2021] KECA 503 (KLR)

Court of Appeal of Kenya
4 June 2021
Mohamed Abdulahi WarsameM. WarsameDMD. K. MusingaAMA. K. Murgor
7,580 words in judgment
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The bottom line

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Kenya's Court of Appeal cancelled a beach plot title, confirming that land reserved for public use can never legally become private property.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nairobi (Warsame, Musinga and Murgor, JJA) against the Environment and Land Court at Mombasa (A. Omollo, J., delivered by Yano, J.), which had dismissed Dina Management Limited's petition against the County Government of Mombasa and partially allowed the County's cross-petition, nullifying the appellant's title to plot MN/I/6053 on Nyali Beach and ordering eviction. The two petitions were consolidated below. Before the Court of Appeal, the National Land Commission sought joinder as interested party, which the Court declined for non-compliance with rules 42 and 45 of its Rules. The Court framed seven issues. It upheld its jurisdiction, holding that the dispute's nature, not the parties, determines whether it is inter-governmental. It rejected res judicata, the earlier Mukunya J. case having concerned an access road between different parties, and held limitation inapplicable to constitutional petitions alleging continuing violations, sections 41 and 42 of the Limitation of Actions Act also excluding government land. On the merits, the Court found the property was unalienated government land reserved as an open space, not trust land. The 1989 allotment to the former President lacked an application letter and approved part development plan, and issued freehold where town plots could only be leasehold for up to 100 years. The title was therefore acquired illegally and unprocedurally; the appellant was not an innocent purchaser for value, and the title fell outside the protection of Article 40(6) and section 26 of the Land Registration Act. The appeal and the cross-appeal were dismissed, the ELC decree affirmed, and costs awarded to the County Government.

Questions the Court framed

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

  1. 1.Whether the appeal relates to an inter-governmental dispute and therefore beyond the jurisdiction of the Court
  2. 2.Whether the dispute is res judicata
  3. 3.Whether the dispute is statute barred under the Limitation of Actions Act
  4. 4.What is the nature of the suit property, including the road leading to the property
  5. 5.Whether the title to the suit property was lawfully acquired
  6. 6.Whether the appellant is an innocent purchaser for value without notice
  7. 7.What remedies are appropriate under the circumstances

Key legal issues

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01

Jurisdiction over the dispute as an alleged inter-governmental dispute

Holding

The Court had jurisdiction; the dispute was between the appellant and the county government over the status of the suit property, and the involvement of national government entities was incidental.

Reasoning

The cross-appellant framed the dispute as one between two levels of government to be resolved under Articles 6, 159(c) and 189 and the Inter-Governmental Relations Act. The Court held that the test looks to the nature of the claim, not the parties. The dispute arose at the appellant's instance over ownership of the suit property; rendering it inter-governmental would exclude the appellant, who belongs to neither level of government.

p. 6
02

Res judicata

Holding

The petition was not res judicata; the earlier Mukunya J. judgment concerned an access road between neighbours, not the root of title, and the 1st respondent was not a party to it.

Reasoning

Applying section 7 of the Civil Procedure Act, the five elements of res judicata must be met conjunctively. The former suit was between different parties over an access road, while the present petition went to the root of ownership of the title. The trial judge correctly found the petition not barred.

p. 7
03

Limitation of actions

Holding

Limitation does not bar the petition; the actions were framed as constitutional petitions alleging continuing violations, and sections 41 and 42 of the Limitation of Actions Act exclude government land from the Act.

Reasoning

Both petitions sought mandatory and prohibitory reliefs indicating continuing violations of rights under Articles 27, 29 and 47. Constitutional petitions enforcing fundamental rights are not subject to limitation. Independently, sections 41 and 42 expressly exclude proceedings for recovery of government land.

p. 8
04

Nature of the suit property

Holding

The property was unalienated government land reserved as an open space for public utility, not trust land; it vested in the county government under Article 62(2) of the Constitution.

Reasoning

The 1st respondent never pleaded trust land, and the burden of proving a trust land claim was not discharged. Parties agreed the Government Lands Act applied. There being no prior lease or allotment, the land was unalienated government land; the 1971 records showed it as an open space, and the allotment blocked an existing public access road to the sea.

p. 9
05

Lawfulness of the title and the innocent purchaser doctrine

Holding

The title was acquired illegally and unprocedurally; the appellant, a third owner, was not an innocent purchaser for value without notice, so the title is defeasible and not protected by Article 40.

Reasoning

The allotment to the former President lacked an application letter and approved PDP, was granted freehold where town plots could only be leasehold for up to 100 years, and breached the Land Planning Act. The appellant failed to investigate the access road, the 60-metre limit and the freehold anomaly. Once reserved for public use, the land could not generate a protectable private interest.

p. 12

Legal principles established

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  • Land reserved for public use or utility cannot be validly alienated into private ownership; any such alienation, however many transactions downstream, is void and incapable of protection.
  • Indefeasibility of title under section 26 of the Land Registration Act and Article 40 does not extend to titles acquired illegally, unprocedurally or through a corrupt scheme.
  • The doctrine of limitation does not apply to constitutional petitions seeking enforcement of fundamental rights, and sections 41 and 42 of the Limitation of Actions Act exclude the Act's application to recovery of government land.
  • Whether a dispute is an inter-governmental dispute under the Inter-Governmental Relations Act is determined by the nature of the claim, not merely the identity of the parties.
  • An allotment of public land must comply with the mandatory statutory procedures, including an approved part development plan; freehold grants over town plots which the statute permitted only as leasehold are unlawful.

Court orders

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  1. 1.The appeal is dismissed as wholly unmeritorious
  2. 2.The cross-appeal by the 2nd to 6th respondents is dismissed
  3. 3.The decree of the Environment and Land Court is affirmed
  4. 4.The costs of the appeal and the cross-appeal are awarded to the 1st respondent

The bench

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

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
DM
majority
AM
majority
On appeal from
Environment and Land Court, Mombasa
Not stated in the judgment provided
Jurisdiction invoked
Article 164(3) of the Constitution, section 3(1) of the Appellate Jurisdiction Act and section 16 of the Environment and Land Court Act

Relief refused

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The appellant's petition for declarations of unconstitutionality and restoration of the suit property

The title was acquired illegally and unprocedurally over public utility land and is not protected by Article 40(6) of the Constitution

p. 13

The National Land Commission's application for joinder as interested party

The application was not canvassed and did not comply with rules 45(1) and 42 of the Court of Appeal Rules

p. 5

The 2nd to 6th respondents' cross-appeal on the inter-governmental relations ground

The dispute was between the appellant and the county government over property; inter-governmental elements were incidental

p. 13

Costs

The costs of the appeal and the cross-appeal were awarded to the 1st respondent.

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.

In our view, the moment a property is reserved for public use, it remains public utility land incapable of giving rise to a private proprietary interest capable of being protected by a court of law.
p. 11Public utility land and indefeasibility
In the end therefore, the appeal is wholly unmeritorious; the cross appeal is also unmerited and stands dismissed and the decree of the Environment and Land Court is afirmed. We award the costs of the appeal and the cross-appeal to the 1st respondent.
p. 13Final orders and disposition
The protection under Article 40(6) of the Constitution cannot extend to land acquired unlawfully and unprocedurally.
p. 11Article 40(6) and unlawful acquisition
In so far as the suit was framed as a constitutional petition seeking to enforce fundamental rights and freedoms, then we agree with the trial judge that the doctrine of limitation does not apply to constitutional petitions.
p. 7Limitation and constitutional petitions
The test for determining whether the matter is an inter-governmental dispute for purposes of application of Inter-Governmental Relations Act is not simply to look at the parties to the dispute but the nature of the claim.
p. 6Inter-governmental disputes
In our view, where property is acquired through a procedure against the law, the title cannot qualify for indefeasibility.
p. 11Defeasibility of illegally acquired title

Issues in the judgment

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minor

The judgment refers to sections '2014 and 205' of the 1963 Independence Constitution in defining government land, which appears to be a typographical error for sections 204 and 205.

minor

The trial court's decision is dated 10th September 2019 but stated to have been delivered by Yano, J. on 19th September 2019; the exact delivery date is ambiguous.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Dina Management Ltd v County Government of Mombasa & 5 others (Civil Appeal 150 of 2019) [2021] KECA 503 (KLR)", Case Analysis (2021). Court of Appeal Civil Appeal (not expressly numbered in the judgment provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/503/eng@2021-06-04

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