A company’s title to a parcel of land, which was once allocated to late former President Daniel Arap Moi, was acquired illegally and unprocedurally.
The Court of Appeal, while affirming a decision by the Environment and Land Court (ELC) against Dina Management Ltd’s appeal, ruled that the land was not available for alienation other than for public use.
Justices Daniel Musinga, Mohamed Warsame and Agnes Murgor noted that proper procedure was not followed during the acquisition of the title to the land.
“Having irregularly obtained allocation of the property, Former President Daniel Arap Moi had no legal interest therein, which he could pass to M/s. Bawazir and Co. (1993), the latter thus had no valid legal interest that in turn could pass to the appellant (Dina Management Ltd),” said the judges.
‘Not an innocent purchaser’
They said that having found that the land was allotted unprocedurally and Dina Management Ltd was not an innocent purchaser for value without notice, they agreed with the ELC that the property is public land which automatically is bestowed to the county government of Mombasa.
The court noted that as agreed by parties, prior to the allocation of the land to the former President, official records indicated that it was an open space.
“There was thus a road leading to the beach, through the open space that was the land and the effect of the allocation of the property was thus to block existing access to the sea from the road, through the open space (the land),” noted the judges.
The Judges agreed with the ELC findings that the county government of Mombasa in which public land (the property) vests, acted within the law to remove the wall that blocked access.
The three-judge bench further ruled that where property is acquired through a procedure against the law, the title cannot qualify for indefeasibility.
The Court of Appeal said that the land was reserved for public use and the access road leading to it for entry, use and enjoyment of the original purpose for which it was meant. It noted that any attempt to deviate from the original purpose, no matter the people involved and subsequent interests acquired, is not valid.
“It was not possible to any person or entity to alienate it for private use, 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,” said the Judges.
No notice
They further noted that no notice was issued to the public that it would be turned into private property where there would be no access road and the vacant land adjacent to the sea would no longer be available for public purpose.
“Any subsequent acquisition, sale or transfer would be contrary and in conflict with the original purpose (public use) therefore void and does not give rise to a right capable of protection by a court of law,” ruled the judges.
Dina Management Ltd had told the ELC that it purchased the land from Bawazir and Company (1993) Ltd.
It said that sometime in September 2017, the county government invaded the land, broke a stone wall, demolished the entire perimeter wall facing the beach front and flattened the property to create a road through it to the beach.
In its appeal, the company urged the court to set aside the judgment by the ELC on grounds that the trial judge made an error in her finding by contradicting a decision of another judge in a case involving the land which had settled the legality of the property.
On his part, the Attorney General supported the allotment that was made to former President Moi, arguing that it was lawful and procedural.
The county government of Mombasa, however, argued that the property was trust land and that there was no document supporting any allotment. It also questioned the surveys that were done on the property, saying they were based on verbal instructions from unidentified people.
The devolved unit, while relying on a survey map of 1971, told the court that the map showed that the road leads to an open space and that none can be closed without the involvement of a proper competent authority.
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