The absence of legislation did not render a court helpless.
The petitioners challenged the judgment and orders of the Court of Appeal delivered on November 11, 2016. The dispute revolved around three first-row beach adjoining pieces of land (suit lands). By a constitutional petition lodged at the High Court, the appellants sought numerous declaratory, judicial review and injunctive orders against the respondents. It was the appellants’ claim, among others, that initially, between the first-row beach plots and the Indian Ocean’s high-water mark, there was a strip of land that was reserved for public use (reserve land). That the 3rd respondent illegally demarcated from the reserve land and granted title to the 1st respondent as a first allottee for a term of 99 years. In the process of consolidating various parcels of land owned by the 2nd respondent, the boundary of the consolidated plot was extended from its original location which resulted in the encroachment of a portion of the reserve land. They claimed that such actions were unlawful and a violation of their right to property and unrestricted access to the Indian Ocean sandy beach through the reserve land. By a decision delivered on October 13, 2015, the High Court allowed the petition.
Aggrieved, the 1st and 2nd respondents appealed to the Court of Appeal arguing, among others, that all the transfers affecting suit properties were commenced and concluded between 1989 – 1992 while the petition was filed over 20 years later, and the High Court judge, therefore, erred in applying article 47(1) and (3) of the Constitution while failing to appreciate that the same was forward-looking and not retrospective in nature. In a judgment delivered on November 11, 2016, the Court of Appeal allowed the appeal with costs and set aside the High Court’s decision and orders.
Dissatisfied by the Court of Appeal’s judgment, the appellants lodged the instant appeal. They challenged, among others, the appellate court’s finding that article 47 of the Constitution could not be applied retrospectively. They also urged that the appellate court failed to appreciate that there was sufficient evidence adduced showing that the reserve land was public land which was incapable of alienation. The respondents opposed the appeal challenging, among others, the jurisdiction of the Supreme Court to determine the appeal. They argued that the High Court lacked jurisdiction to determine a dispute that predated the promulgation of the 2010 Constitution and that the Supreme Court had no jurisdiction to entertain matters that had been finalized by the Court of Appeal before the Commencement of the 2010 Constitution. They also submitted that the suit properties were unalienated government land pursuant to which they were allocated and accused the appellants of unreasonable delay in bringing a claim against them.
- Whether the provisions of article 47 of the Constitution on the right to fair administrative action could be applied retrospectively.
- Whether in the absence of legislation giving effect to the right to fair administrative action, the High Court was divested of jurisdiction to review administrative action.
- What amounted to public land?
- Whether un-alienated government land was public land.
- Whether a foreshore felt within the category of public land.
- Whether any right to a foreshore would be conferred to a private entity.
- Whether the government or a private entity could interfere with or limit the enjoyment of a public easement through acts of commission or omission.
- The jurisdiction of the High Court was never challenged at the Court of Appeal, nor was the issue raised in any manner at the two superior courts. Secondly, the basis upon which the jurisdiction of the Supreme Court was being impugned was not borne out of fact, in that, the dispute before the court had never been finalized by the Court of Appeal before the commencement of the Constitution. The judgment of the Court of Appeal which gave rise to the appeal was delivered on November 11, 2016. The Supreme Court was properly seized with jurisdiction to entertain and determine the appeal.
- Although the respondents relied on the Supreme Court’s decision in the case of Samuel Kamau Macharia v. Kenya Commercial Bank  eKLR (Macharia case) to argue that the Constitution did not apply retrospectively, a clear reading of the court’s pronouncement left no doubt that the court did not out-rightly rule out the retrospective application of the Constitution. The court, however, cautioned that where the language of a particular provision in the Constitution did not contain even a whiff of retrospectivity, then such provision could not apply retroactively. Noteworthy, the court in other cases had gone ahead to identify a number of provisions in the Constitution which it considered relevant to the dispute before it, notwithstanding the fact that the questions before it had arisen out of a set of circumstances that had long crystallized before the promulgation of the Constitution. Such provisions were considered to be both backward and forward-looking.
- Article 47 of the Constitution was a Bill of Rights provision which was stated in deliberate and clear normative terms. It set out clear and unambiguous entitlements within the language of the Bill of Rights. They were expressed in normative terms as opposed to general principles that would require the further input of the legislature so as to attain prescriptive force. Contrary to the holding by the Court of Appeal, those were substantive entitlements whose enjoyment was not intended to be suspended by article 47(3) of the Constitution. The legislation contemplated was not meant to create any other norms apart from the ones provided for by the Constitution. The Constitution required that such legislation provided for review of administrative action by either a court or independent tribunal. The legislation was also to provide for efficient administration. The basis for review of administrative action was already provided for in article 47(1) of the Constitution, being expedition, efficiency, lawfulness, reasonableness and procedural fairness. The effect of sub-article 3 was therefore to perfect the enjoyment of those rights, as opposed to suspending such entitlement by divesting the High Court of Jurisdiction to review administrative action.
- The absence of legislation did not render a court helpless given the interpretative refuge afforded by article 20 (3) of the Constitution. The High Court correctly applied article 47 of the Constitution in addressing the original claim.
- The assertions by both parties regarding the dates of completion of the transfer of the suit lands and the commencement of the erection of the wall had not been factually controverted. For a party to be time-barred from litigating its claim, such limitation of time had to be stated in the Constitution, statute or as a principle of common law. To be successfully raised against a litigant, a court had to determine when the time started running. The question as to when the cause of action arose had to be settled so as to shut out a litigant on grounds of passage of time. These principles/conditions were never at play in the appeal, nor were they evident on the face of the appellate court’s conclusions. It was not lost to the court that the gravamen of the appellants’ grievance was the allocation of the disputed land by the 3rd respondent to the 1st and 2nd respondents and the consequent erection of the wall by the latter. Therefore, the cause of action arose, not at the time of the completion of the transfers, but at the commencement of the erection of the wall. There was no basis upon which the appellants could be said to have slept on their rights.
- The status of the suit properties could only be determined by an examination of the relevant provisions of the Constitution and applicable statutes. Towards that end, article 62(1)(a) and (i) of the Constitution provided that public land was inter alia, a land which at the effective date was un-alienated government land as defined by an Act of Parliament in force at the effective date and all land between the high and low watermarks.
- Pursuant to section 45 of the Survey Act, the Survey (Amendments) Regulations 1994, were enacted. Regulation 110 thereof provided that coastal offshore reservation where un-alienated government land fronting on the area coast was being surveyed for alienation, a strip of land not less than 60 metres in width could normally be reserved above the high-water mark for government purposes provided that, if the interests of development require, the Minister would direct that the width of that reservation be less, than 60 metres in special cases.
- Section 82 of the repealed Government Lands Act provided that a conveyance, lease or license under it ought not, unless otherwise expressly provided therein, confer any right to the foreshore. Therefore, unalienated government land was public land within the context of article 62 of the Constitution and the Government Lands Act (repealed). That notwithstanding the fact that the expression public land only came to the fore with the promulgation of the 2010 Constitution.
- Article 62 of the Constitution clearly delimited the frontiers of public land by identifying and consolidating all areas of land that were regarded as falling under the province of public tenure. The repealed constitution used the term government instead of public to define such lands. It was incorrect for the respondents to assert that the lands in question were unalienated government land but not public land. It was even more inaccurate to argue that the said parcels had never been public land. Unalienated government land remained public until it was privatized through allocation to individuals or other private entities.
- To the extent that the assertion by the appellants remained un-controverted, the additional portion of land which was allocated to the 2nd and 1st respondents was hived off the coastal foreshore by the 3rd respondent. Such foreshore consisted of land lying between the low-water mark and the high-water mark plus an additional 60 metres above the high-water mark within the meaning of regulation 110 (1) of the Survey Regulations of 1994. Such land was reserved for government/public use.
- Although article 62(1)(l) of the Constitution made no reference to the 60 metres above the high-water mark, only limiting itself to the language of the high and low water mark. Article 62(1)(n) of the Constitution provided for another category of public land as being any other land declared to be public land by an Act of Parliament in force at the effective date or enacted after the effective date, hence the relevance of regulation 110(1) of the Survey Regulations of 1994 which was enacted before the effective date pursuant to section 45 of the Survey Act. Further, section 82 of the Government Lands Act (repealed) which predated the Survey Act, and under which the suit lands fell as un-alienated government land, out-rightly forbade the conferment of any right to the foreshore by a conveyance, lease or license.
- The right of access to the ocean through the foreshore by members of the public or any other owner of land along the coast, being the appellants, whether for economic, recreational or aesthetic reasons, was a public right secured by a public easement. Such right was not acquired through a private treaty. It followed that a person or private entity who had encroached on the foreshore could not interfere with or limit the enjoyment of a public easement through acts of commission or omission. On the other hand, the government would interfere with or limit such easement only in promotion or protection of the public interest as guaranteed by the Constitution and the law.