(a) Forest or Trustland?
46.For us to determine the legal status of the suit land herein, we have to revisit the laws relied upon by the parties in support of their divergent submissions.
47.The Forests Ordinance Cap 176 was enacted to amend and consolidate the law relating to Forests in Kenya. Section 4 of the Ordinance provided that;Further, Section 5 provided that:
48.By Proclamation No. 44 of 1932, mangrove swamp forest reserves were declared as follows;
49.Subsequently, Legal Notice No. 174 of 1964 was issued by the then Minister for Natural Resources, in consultation with the then National Forest Authority, declaring all central forests situated in various districts in Kenya. It is worth noting that the Legal Notice makes pointed references to various Proclamations made between 1932 to 1960s, declaring various pieces of land central forest areas in Kenya.
50.In this Legal Notice, Mangrove swamp forests in Mombasa, Kwale, Lamu and Kilifi Districts were declared as comprising;
51.The Forest Act Cap 385 was enacted in 1942 and revised last in 2012. It was an Act of Parliament to provide for the establishment, control and regularization of central forests, forests and forest areas in the Nairobi area and on unalienated Government land. Section 4 of the Act provided that;
52.In its Subsidiary Legislation, the Act provides that, ‘all proclamations under Section 4 are omitted, by virtue of Section 5 of the Revision of the Laws Act.’ Section 5 of the Revision of the Laws Act Cap 1 provides as follows;‘There may be omitted from Laws of Kenya–a.Annual appropriation Actb.Specific loan or specific loan guarantees Actsc.Any act which, in the opinion of the Attorney-General, is-i.of temporary effect; orii.of local or limited application; oriii.of application only to a time pastd.Any Constitution of Kenya (Amendment) Act or provisions in such Act which does not become incorporated in the Constitution;e.Any Act which in the opinion of the Attorney General ought to be temporarily omitted by reason of-i.proposed substantial amendment to the Act or subsidiary legislation made thereof; orii.the proposed making of a substantial quantity of new subsidiary legislation thereunder;iii.the Act in question not yet being in force at the time of a given revision
53.The Forest Act Cap 385, Laws of Kenya was repealed by the Forest Act No. 7 of 2005 while the latter was repealed by the Forest Conservation and Management ActNo. 34 of 2016.
54.The appellant relies on the provisions of the Forest Act, Cap 385 as read with its Subsidiary Legislation and Section 5 of the Revision of Laws Act, set out above, to urge that Proclamation No. 44 of 1932 ceased to have effect after the enactment of the Forest Act Cap 385, as the latter omitted the content of the Proclamation. However, it should be noted that Proclamation No. 44 of 1932 was not made under the Forest Act Cap 385. The Proclamation was made under the Provisions of the Forests Ordinance Cap 176, which is not one of the laws repealed by the Forest Act Cap 385, the Forest Act No 7 of 2005 or the Forest Conservation and Management Act No. 34 of 2016. Of significance, is the fact that the Minister, never degazetted the suit land as a mangrove forest. A clear reading of Section 5 of the Revision of Laws Act, leaves no doubt that Proclamation No. 44 of 1932 could not have formed part of the contents of that which was omitted by Section 4 of the Forests Act, Cap 385 of the Laws of Kenya.
55.Besides, the Forests Act No 7 of 2005 at Section 65 and the Forest Conservation and Management Act No. 34 of 2016 at Section 77, provide (d) that, notwithstanding the repeal of the preceding Act, ‘any land which, immediately before the commencement of the subsequent Act was a forest or nature reserve under that Act, shall be deemed to be a state or local authority forest or nature reserve, as the case may be, under the succeeding Act.’ Section 77 of the Forest Conservation and Management Act specifically sets out that all gazetted or land registered as a forest reserve in its Third Schedule or under any other relevant law shall be deemed to be a public forest under the Act. The Third Schedule identifies mangrove swamp forests as land declared under Notice No. 44 of 1932. Although the word ‘Proclamation’ is not used, we have no doubt that the ‘Notice’ referred to, can only be “Proclamation No. 44 of 1932”. The conclusion to which we must therefore arrive, is that the legal status of mangrove forests as declared in Proclamation No. 44 was saved by the Third Schedule of the Forest Conservation and Management Act.
56.Having so found, the next issue that we must determine is whether, the suit land falls within the frontiers identified in Proclamation No 44 of 1932. The Proclamation describes a mangrove forest as;
57.The 1st to 3rd respondents urge that the suit land is between the high and low watermarks and is therefore, a mangrove forest. The appellant disputes this assertion. However, at paragraph 13 of the affidavit sworn by its Managing Director, Alessandro Torriani on 13th January 1995, a concession is made of the fact that ‘the suit land floods and becomes completely submerged only at very high tides about twice a year.’
58.The status of the suit land is first and foremost a matter of law and as declared in Proclamation No. 44 of 1932, and subsequently in Legal Notice No. 174 of 1964, the said land is situated between the high and low water-mark on the Coast of Kenya. 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. This was a mangrove forest which has never ceased to be such, not because (as submitted by the first respondent, and wrongly so in our view) the Ordinance under which the Proclamation creating it is still part of the Law of Kenya, but because its status as a forest was saved by the Forest Conservation and Management Act.
(b) Was the Suit Land, Trust Land? And if so, was it legally set apart?
59.Assuming for purposes of argument that the land in question was Trust land, we have to determine whether the same was regularly set apart, in accordance with the applicable law at the time.Section 114 (1) of the retired Constitution defined Trust land to include:(a)land which is in the Special Areas (meaning the areas of land the boundaries of which were specified in the First Schedule to the Trust Land Actas in force on 31st May, 1963,) and which on 31st May, 1963 vested in the Trust Land Board by virtue of any law or registered in the name of Trust land board;(b)the areas of land that were known before 1st June, 1963 as Special Reserves, Temporary Special Reserves, Special Leasehold Areas and Special Settlement Areas and the boundaries of which were described respectively in the Fourth, Fifth, Sixth and Seventh Schedules to the Crown Lands Ordinance as in force on 31st May, 1963, the areas of land that were on 31st May, 1963 communal reserves by virtue of a declaration under section 58 of that Ordinance, the areas of land referred to in section 59 of that Ordinance as in force on 31st May, 1963 and the areas of land in respect of which a permit to occupy was in force on 31st May, 1963 under section 62 of that Ordinance; and(c)land situated outside the Nairobi Area (as it was on 12th December, 1964) the freehold title to which is registered in the name of a county council or the freehold title to which is vested in a county council by virtue of an escheat:Provided that Trust land does not include any estates, interests or rights in or over land situated in the Nairobi Area (as it was on 12th December, 1964) that on 31st May, 1963 were registered in the name of the Trust Land Board under the former Land Registration (Special Areas) Ordinance.
60.By virtue of Section 115 of the retired Constitution, all Trust land within the jurisdiction of any County Council, is vested in the Council for the benefit of the persons ordinarily resident on that land. However, this Section excludes any body of water that immediately before 12th December 1964 was vested in any person or authority, or any mineral oils.
61.According to Section 116 of the retired Constitution, ‘A County Council could, in such manner and subject to such conditions as may be prescribed by or under an Act of Parliament, request that any law to which this subsection applies shall apply to an area of Trust land vested in that County Council, and when the title to any parcel of land within that area is registered under any such law otherwise than in the name of the County Council, it shall cease to be Trust land. The laws to which this proviso applied were; the Land Consolidation Actand the Land Adjudication Act, and any other law permitting the registration of individual titles to estates, interests or rights in or over land that, immediately before registration, was Trust land (except so far as the law permitted the registration of estates, interests or rights vested in persons or authorities for whose use and occupation the land had been set apart.
62.In accordance with Sections 117 and 118 of the retired Constitution, a County Council had the power to set apart an area of Trust land for use and occupation by a public body or for purposes specified therein. Of significance to the issue before us, is Section 117 (1) (c) which provided that the Council could set apart an area of trust land for use and occupation by “any person or persons for a purpose which in the opinion of that county council is likely to benefit the persons ordinarily resident in that area or any other area of Trust land vested in that county council, either by reason of the use to which the area so set apart is to be put or by reason of the revenue to be derived from rent in respect thereof”. Even then, a county council could only set apart an area of Trust land pursuant to an enabling Act of Parliament, to wit, the Trust land Act. In line with Sections 117 and 118 of the retired Constitution, the Trust Land Act Cap 288 (repealed) was enacted, as an Act of Parliament to make provision for Trust land. Part IV of the Act provided for setting apart of Trust land.
63.Having set out the law regulating the setting aside of trust land, and supposing the suit land in this matter was trust land, was the setting aside in accordance with the law in place at the time? The answer to this question is in the negative, due to the following uncontroverted findings of law and fact. Firstly, the Gazette Notice No. 3831 of 1994 specified the size of the land set apart as comprising approximately 0.7 of a hectare. However, the land ultimately set apart and allocated to the appellant was 3.126 hectares. There is no further Notice on record in respect of the change of size of the suit land. By the same token, the Msambweni Land Control Board, gave Consent to set apart 0.7 of an hectare of land, yet there is no further Consent from that Board, for the change of the acreage to 3.126 hectares. Thirdly, contrary to the requirement under Section 7(3) of the Trust Land Act (repealed), Gazette Notice No. 3831 of 1994 did not specify a date before which applications for compensation were to be made to the District Commissioner. Fourthly, the suit land was set apart for use as a boat landing base, (a purpose that would have benefitted the local communities ordinarily resident in the area) yet the appellant has constructed a five-star hotel on it. There is no further Notice on record for change of purpose of setting aside. This is in contravention of the provisions of Section 117 of the former Constitution and Section 7(3) of the Trust Land Act (repealed), which required the Notice of an intended alienation to specify the purpose for which the land is required to be set apart.
64.The entire process and Notice for setting apart, fell far short of the requirements of the Constitution and the law. In view of these shortcomings and our conclusion regarding the legal status of the suit land, we find no reason to upset the judgment of the Court of Appeal.