E. Analysis and Determination
Whether the appeal meets the constitutional threshold under Article 163(4)(a) of the Constitution?
39.The 1st respondent challenges this Court’s jurisdiction to hear and determine the appeal. It urges that none of the grounds in the appeal relate to interpretation or application of the Constitution. Indeed, jurisdiction is a preliminary issue that ought to be dealt with at the onset given that, without jurisdiction a court is obligated to down its tools. It therefore follows that we must first address the issue whether we are clothed with requisite jurisdiction under Article 163(4)(a) of the Constitution pursuant to which the appeal has been brought.
40.A court’s jurisdiction emanates from either the Constitution or legislation or both, as we stated in Samuel Kamau Macharia vs. Kenya Commercial Bank Limited & 2 Others, Civil Application No. 2 of 2011 as follows:
41.Article 163(4)(a) of the Constitution states that:This Court has stipulated the limits of its jurisdiction under Article 163(4)(a) of the Constitution in several of its decisions. In Paul Mungai Kimani & 20 others (on behalf of themselves and all members of Korogocho Owners Welfare Association) v Attorney-General & 2 others  eKLR we stated as follows:
42.Each case must however be evaluated on its own facts. To enable us resolve the question whether the matter concerns the interpretation and application of the Constitution, we must establish whether each of the issues raised falls under the Court’s jurisdiction.
43.The appellant seeks a determination on whether its rights under Article 27(1) and 50(1) of the Constitution were violated by the appellate court’s application of the doctrine of res judicata, in the alternative, issue estoppel. The 1st respondent submits that the doctrine of issue estoppel is concerned with issues of facts and not law, and this does not call for the interpretation or application of the Constitution.
44.We note that this is an issue that arose before the ELC, whereby the appellant argued, albeit unsuccessfully, that the 1st respondent’s petition, ELC Petition No. 12 of 2017 was res judicata as the issues raised had been determined in HCCC No. 131 of 2011. This issue was also taken up by the appellate court and now finds its way in this appeal. Is res judicata a factual matter devoid of the application of the Constitution?
45.This Court in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another, Motion No. 42 of 2014  eKLR stated as follows concerning the doctrine of res judicata:
46.The question the appellant seeks this Court to determine is not on the principle of res judicata per se, but whether the petitioner’s rights under Article 27(1) and 50(1) of the Constitution were violated by the court’s application of the doctrine of res judicata thus bringing it within this Court’s jurisdiction. This is in tandem with its argument that decisions in rem by courts of concurrent jurisdiction are binding on each other to facilitate access to justice, rule of law and afford equal protection before the law. As seen above, res judicata is not just a factual contest but rather an issue of substantive law. In the context before us, we are persuaded that the issue is worth our input as a matter involving the interpretation and application of the Constitution as regards violations of the cited Articles above.
47.The second issue the appellant seeks determination of is whether the appellate court’s interpretation of bona fide purchaser amounted to unjustifiable and unreasonable limitation of the right to property under Article 40 and in violation of Articles 19(3)(c), 20(1), 21(3) and Article 23 of the Constitution. The 1st respondent urges that the crux of the decision by the superior courts was on the status of the suit property as a public utility and being so, Article 40 of the Constitution does not apply; that there is no such provision under Article 40, protecting an innocent purchaser for value without notice. Having not been particularized under the Article, it urges that it cannot be for determination as a matter of either interpretation or application of the Constitution.
48.The 1st respondent urges that the appellant’s complaint, instead, relates to the manner in which the courts below applied the provisions of statute, being the Physical Planning Act (repealed) and the Government Lands Act and that a question of statutory interpretation and common law are not matters that fall for determination by this Court under Article 163(4)(a) of the Constitution.
49.The appellant urges us to find that the initial allotment was legally and regularly undertaken under the then prevailing legal regime, the Government Land Act and further that the Physical Planning Act’s date of commencement was in 1998 while that of the Survey Regulations was in 1994, which was after the initial allotment of the suit property to the first registered owner. It is clear that the appellant seeks to have the Court make a determination on the application of these statutory provisions, and more so, on the findings of fact upon which the applicable constitutional argument if any, can be applied.
50.To interrogate this issue, the Court inevitably has to descend into the factual contestations pitting both sides of the ownership divide. Allotment and allocation of land is a matter that is governed by Statute, be it Government Lands Act, Surveys Act, Physical Planning Act or any such legislation for that matter. Both the High Court and the Court of Appeal, as superior courts enjoined to look at the evidence and make factual findings, undertook their mandate appropriately arriving at the same conclusion relating to the proprietorship of the suit property.
51.We are careful to note that this Court has no jurisdiction to revisit the factual findings of the superior courts, and we are limited to the Court’s jurisdiction under Article 163(4)(a) of the Constitution. In Paul Mungai Kimani & 20 others (supra) we stated as follows:
52.Similarly, in Mitu-Bell Welfare Society v. Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae)  KESC 34 (KLR) we stated:
53.From the record and pleadings, the appellant asserted its rights to property under Article 40 of the Constitution. It averred that it was a bona fide purchaser and the registered owner of the suit property and thus the actions of the 1st respondent amounted to unjustifiable and unreasonable limitation of the right to property under Article 40 in violation of Articles 19(3)(c), 20(1), 21(3) and 23 of the Constitution. On the other hand, the 1st respondent asserted its rights both as public property on the beach and on the basis of Article 40(6) of the Constitution not to protect illegally acquired property. The question for interpretation and application of the Constitution is therefore the extent of the protection, if any, to the suit property. In doing so, we shall interrogate whether the appellate court’s interpretation of bona fide purchaser amounted to a violation of the appellant’s right to property under Article 40 of the Constitution. We therefore find that we have jurisdiction to hear and determine the matter.
54.Thirdly, the appellant urges this Court to determine whether the enforcement actions by the 1st respondent violated the appellant’s right to property under Article 40, right to equal protection before the law under Article 27(1) and the right to fair administrative action under Article 47 of the Constitution. The 1st respondent counters that by arguing that there was no specific complaint pleaded under Article 47 and this was not for discussion and never for determination by the courts below. Further, it urges that the modalities of raising complaints under Article 47 are set out in the Fair Administrative Actions Act, 2015 which actualized the Article 47 of the Constitution.
55.From the record, we note that one of the prayers sought before the trial court was, ‘a declaration that the respondent’s actions are unconstitutional and a violation of the petitioner’s rights under Article 27(1) and (1), Article 29 and Articles 47(1) and (2) of the Constitution.’ The appellant framed six issues for determination which the trial court adopted. None of these issues included a determination as to whether the rights cited were violated. Similarly, a perusal of the appellant’s Memorandum of Appeal lodged at the Court of Appeal, wherein it raised twenty-two grounds of appeal, does not reveal any fault being attributed to the trial judge for not addressing this issue. As it appears, they were not issues considered by the superior courts. Can they therefore come up at this juncture, on appeal? Hardly.
56.This Court has held in several of its decisions including in Lawrence Nduttu & 6000 others v Kenya Breweries Ltd & another; SC Pet No. 3 of 2021  eKLR and Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others SC Petition No. 3 of 2020  eKLR that to bring an appeal pursuant to Article 163(4)(a) of the Constitution, it must be demonstrated that the issues of contestation involve the interpretation or application of the Constitution, which constitutional issues had been considered and determined by the superior courts. It is that interpretation or application of the Constitution by the appellate court that forms the basis of a challenge before this Court.
57.The interpretation or application of Articles 27(1) and 47 of the Constitution having not been a question for determination before the superior courts, this court would have no jurisdiction to entertain an appeal brought under Article 163(4)(a). Accordingly, this court has no jurisdiction to establish whether the 1st respondent’s “enforcement actions” violated the appellant’s right to property (Article 40), right to equal protection before the law (Article 27(1)) and the right to fair administrative action under Article 47 of the Constitution as this would amount to converting the court into a court of first instance. In our view, the appellant is no more than seeking compensation and/or damages both liquidated and special, matters that are not in the purview of consideration by this court.
58.Lastly, the appellant seeks a determination on whether the appellate court erred by failing to consider the provisions of Part V of Chapter 11 of the Constitution on the relationship between devolved government and the national government, specifically Article 189 of the Constitution in relation to resolution of disputes between the national government, its agencies and devolved government.
59.The 1st respondent submits that the issue for determination before the superior courts was the ownership of the suit property which was registered in the name of the appellant in July, 2006. Its case is that the law applicable at the time for a person to assert rights, liabilities and remedies was the Registration of Titles Act, which was repealed by the Land Registration Act. Further, neither the Constitution 2010 nor the derivative Act under Article 189 of the Constitution were in existence including the two levels of government for the intergovernmental relations dispute mechanism to apply.
60.We note that this question neither arose nor was it determined by the trial court. It is only at the Court of Appeal vide the Attorney General’s Cross Appeal that the court’s jurisdiction to hear and determine the matter was first questioned on this ground. Whether the dispute is intergovernmental in nature is a jurisdictional issue. Indeed, jurisdiction is a pertinent question for determination. A court is bound to always satisfy itself whether or not it has jurisdiction to hear and determine a matter before it. In Lemanken Aramat v Harun Meitamei Lempaka & 2 others  eKLR we held that jurisdiction is a legal question and it can be raised at any time and by any party. The Nigerian Supreme Court in the case of Alhaji Bello Nasir v. Kano State Civil Service Commission & 2 others, SC. 144/2003 per Ogbuagu, JSC in his concurring judgement held as follows:
61. Whereas the issue of intergovernmental dispute was not articulated at the trial court but only at the appellate court, the inherent jurisdiction of this Court to right jurisdictional wrongs committed by the Superior Courts in executing their constitutional mandates necessitates that this Court should assume jurisdiction and interrogate those alleged wrongs. In Modern Holdings (EA) Limited v Kenya Ports Authority SC Petition No 20 of 2017  eKLR we acknowledged that the question of jurisdiction can be raised at any stage of the proceedings and observed that: In our earlier ruling in Modern Holdings (E.A) Ltd v Kenya Ports Authority (supra) we noted that the challenge on jurisdiction of the Court had not transcended the Court hierarchy but had originated at the Court of Appeal and we accepted to exercise our jurisdiction under Article 163(4)(a) of the Constitution. To that end, we consequently find that this Court has jurisdiction to entertain the consideration and determination of this issue under Article 163(4)(a) of the Constitution.
62. We reiterate that not all the four grounds set out by the appellant satisfy our jurisdictional threshold under Article 163(4)(a) of the Constitution. The upshot is that the appeal correctly invokes this Court’s jurisdiction to the extent of determining only three questions: a) whether the appellant’s rights under Article 27(1) and 50(1) of the Constitution were violated by the court’s application of the doctrine of res judicata in the alternative issue estoppel; b) whether the appellate court’s interpretation of bona fide purchaser amounted to a violation of the appellant’s right to property under Article 40 of the Constitution and c) whether the suit amounts to an inter-governmental dispute under Article 189(3) of the Constitution, and the Intergovernmental Relations Act No.2 of 2012.
63.Having delineated our jurisdiction, we now proceed to address the identified issues
Whether the appellant’s rights under Article 27(1) and 50(1) of the Constitution were violated by the court’s application of the doctrine of res judicata in the alternative issue estoppel.
64.The appellant’s case is that the superior courts neglected the existence of the determination in HCCC No. 131 of 2011, a decision in rem, regarding the status of the suit property made by a court with equal jurisdiction. For this reason, it urges that the trial court was estopped from reopening the subject matter regardless of the parties. It urges that Petition 12 of 2017 was camouflaged as a constitutional petition to escape the statutory limitation of action. The appellant relies on the decisions in Nicholas Francois Marteens & others v South African National Parks, Case No. 0117, George William Katerregga v Commissioner for Land Registration & others Kampala High Court Misc. Appl No. 347 of 2013, Japhet Nzila Muangi v Kenya Safari Lodges & Hotels Ltd  eKLR, E.T. v Attorney General & another  eKLR and Pop-In (Kenya) Ltd. & 3 others v Habib Bank AG Zurich  eKLR.
65.The 1st respondent on the other hand submits that issue estoppel cannot be invoked against statute so as to render statutory provisions inoperative, citing Sections 9, 10 and 85 of the GLA and that the principle cannot be used to deprive the public of public land and also reiterating that HCCC 131 of 2011 was a judgment per incuriam.
66.The doctrine of res judicata is founded on public policy and is aimed at achieving two objectives namely, that there must be finality to litigation and that the individual should not be harassed twice with the same account of litigation. (See Mulla, the Code of Civil Procedure, 16th Ed. Vol.1 – pg 161). The doctrine of res judicata may be pleaded by way of estoppel so that where a judgment has been delivered, subsequent proceedings are estopped. Where res judicata is pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounts to an allegation that all the legal rights and obligations of the parties were concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact, this is a form of action estoppel. (See Halsbury’s Laws of England, paragraph 1174).
68.In John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015)  KESC 39 (KLR) (Civ) (6 August 2021) (Judgment) we stated as follows:
69.The elements set out above are to be conjunctive rather than disjunctive before a suit or an issue is to be deemed res judicata on account of a former suit. It must be demonstrated that there was a former judgment which was final, it was on merit and by a court having jurisdiction and have identical parties, subject and cause of action.
70.From the record, we establish that ELC Petition 12 of 2017 was filed by the 1st respondent against the appellant and the 2nd to 6th respondents. In the said petition, the 1st respondent’s claims were that the alienation and subsequent conversion of the suit property from public to private land was illegally and unlawfully done, and that the appellant cannot enjoy constitutional protection as the suit property was unlawfully acquired.
71.We establish from the judgment in HCCC No. 131 of 2011 that the Plaintiff, Elizabeth Karunguri Githunguri sought, inter alia, a permanent injunction to restrain the appellant herein from dealing with plot No. 6053/MN, (the suit property) and for the Registrar of Titles to revoke/cancel title No. 6053/1/MN and rectify the register. The court framed the questions for determination as whether the plaintiff’s plot no. 1908/1/MN is a beach plot; whether the construction of the perimeter wall on plot no. 6053/1/MN has encroached the beach plot and is on riparian reserve; whether the blockage of the view of the sea breeze is actionable; and whether a mandatory injunction can be issued to the Registrar of Titles to rectify the register by deleting the entries relating to MN/1/6053 when the Registrar is not a party to the suit.
72.The court dismissed HCCC No. 131 of 2011 for reason that the plaintiff had failed to make her case and further that the court could not make orders against the Registrar of Titles who was not a party to the suit. It stated:
73.In the consolidated petitions at the Environment and Land Court, the issues for determination were: whether the suit property was a public utility and there was a public access road through it to the beach; whether the suit property was within 60 metres of the high water mark; were illegalities or faults committed by those responsible for alienating the suit property and whether the appellant should suffer the faults of those third parties (if any); whether the 1st respondent’s suit is res judicata and/or an abuse of court process; whether the suit was time barred and/or the 1st respondent guilty of latches and indolence; and whether the appellant was the lawful owner of the suit property and entitled to the orders sought.
74.Whereas the two suits concern the suit property, the main issue for determination in ELC Petition 12 of 2017 was whether the suit property is a public utility and it challenged the manner in which the suit property was alienated and subsequently allocated to the 1st registered owner and the conversion to freehold property. On the other hand, the main issue in HCCC No. 131 of 2011 was whether the suit property was a beach plot and on a riparian reserve and whether blocking the Plaintiff’s view to the ocean and sea breeze by the appellant was actionable. The issues for determination in ELC Petition 12 of 2017 were therefore not substantially in issue in HCCC No. 131 of 2011. Further, the 2nd to 6th respondents were not parties in HCCC No. 131 of 2011 and the court’s findings were inconclusive due to the absence of the state organs, specifically, the Registrar of Titles to enable the court make a determination. The parties in ELC Petition 12 of 2017 are different from those in HCCC No. 131 of 2011 save for the appellant.
75.To this end therefore, we find that ELC Petition 12 of 2017 is not res judicata as the elements to make such a finding have not been met. The appellant’s rights to equal protection under Article 27(1) and the right to fair hearing under Article 50(1) of the Constitution were therefore not violated by the appellate court’s interpretation of the doctrine of res judicata in the matter.
76.It is vital to note that the decisions in HCCC No. 131 of 2011 and ELC Petition 12 of 2017 were made by courts of concurrent jurisdiction. By majority, this Court stated in Attorney-General & 2 others v Ndii & 79 others; Prof. Rosalind Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated))  KESC 8 (KLR) (31 March 2022) (Judgment) that decisions made by courts of concurrent jurisdiction made in rem are not binding on courts of equal jurisdiction. The ideal scenario on stare decisis is for trial court judges to follow decisions of other judges of the same court unless there are compelling reasons to depart from the same. This is to ensure consistency, certainty, predictability, and sound judicial administration.
Whether the suit amounted to an inter-governmental dispute under Article 189(3) of the Constitution and the Intergovernmental Relations Act No.2 of 2012
77.The appellant urges that ELC Petition No. 8 of 2017 did not relate to an intergovernmental dispute, however, the framing and disposition of the suit evolved into an intergovernmental dispute once it was consolidated with ELC Petition No.12 of 2017. The appellant submits that the 1st respondent in its petition, sought to compel the national government officers to pursue and enforce a particular course of action and that the subject matter was the issue of the extent, scope, and engagement between a devolved unit and the national government. It relies on the case of Council of County Governors v Lake Basin Development Authority & 6 others  eKLR and Isiolo County Assembly Service Board & Another v Principal Secretary (Devolution) Ministry of Devolution and Planning & another  eKLR to buttress its argument.
78.Conversely, the 1st respondent submits that by virtue of Section 106(3) of the Land Registration Act, the intergovernmental relations dispute mechanism is not applicable and it is not in compliance with Section 32 of the IGR Act, which requires that there be an agreement.
79.The 2nd to 6th respondents on the other hand support the appellant’s averments and state that the suit was prima facie an intergovernmental dispute by a county government vis-a-vis the national government since Petition 12 of 2017 challenged the actions of the national government agencies, that is the Chief Land Registrar and the Director of Survey and sought to have their decision nullified. It is their case that the first point of dispute resolution ought to be the alternative modes of dispute settlement and not litigation in order to allow the two levels of government to continuously engage. They urge that this was the purpose of the setting up of the Council of Governors and the IGR Committee and therefore argue that Petition 12 of 2017 ought to have been struck out and be referred to the alternative dispute resolution forums in accordance with Article 189(3) and (4) of the Constitution and Section 31 of the Intergovernmental Relations Act.
80.Article 189 of the Constitution provides that:Cooperation between national and county governments
81.The Intergovernmental Relations Act No.2 of 2012 (IGR Act) is the legislation passed pursuant to Article 189 of the Constitution to establish a framework for consultation and cooperation between the national and county governments, and amongst county governments, and to establish mechanisms for the resolution of intergovernmental disputes. The intention of Article 189 of the Constitution was to have consultation and cooperation between the national and county governments and have disputes resolved in a less acrimonious way. The two levels of government are required to make every reasonable effort to settle any arising disputes.
82.There is no express definition of what amounts to an intergovernmental dispute under the IGR Act. Section 30 merely defines a “dispute” as an intergovernmental dispute and that the dispute resolution mechanisms applies to disputes arising between the national government and a county government or amongst county governments.
83.From the provisions of the Constitution and the IGR Act set out above, the dispute must first be between the two levels of government or between county governments. The High Court in County Government of Nyeri v Cabinet Secretary, Ministry of Education Science & Technology & Another Petition No. 3 of 2014  eKLR in further defining what an intergovernmental dispute is, stated as follows:
84.This definition found footing in Council of County Governors v Cabinet Secretary Land, Housing & Urban Development & another ELC No. 598 of 2016  eKLR and Okoiti v Parliament of Kenya & 2 others; County Government of Taita Taveta & 3 others (Interested Parties) (Petition 33 of 2021)  KEELC 33 (KLR) (23 March 2022) (Ruling) by the High Court.
85.In the instant case, ELC Petition 8 of 2017 concerned the appellant’s assertions of its rights to the suit property. ELC Petition 12 of 2017 on the other hand was between the 1st respondent against the appellant, which is a private entity and the 2nd -6th respondents which are national government agencies. The main issue in dispute in the petition was the manner in which the suit property was first allocated to the 1st registered owner. The 1st respondent also sought declarations that that the suit property is public land forming part of the beach property within the high and low water marks of the Indian Ocean, and sought to have the court order that the Chief Land Registrar be compelled to revoke the title over the suit property including an order for the eviction of the appellant from the suit property, general damages for trespass and costs.
86.The main issue for determination before the Environment and Land Court was therefore not a disagreement between the county government and the national government agencies, but whether the ownership of the suit property was public or private. The suit property was central to the dispute, necessitating the basis for the consolidation of the Petition 8 of 2017 and Petition 12 of 2017. In our view, therefore, and we agree with the appellate court, the question of the dispute being intergovernmental fell on the periphery and was incidental to the main issue in dispute. The mere fact that the 1st respondent opted to file separate proceedings in response to that filed by the appellant does not change the nature of the proceedings. The issues and challenges to the ownership of the suit property would have still been introduced in response to the petition, even if by way of cross petition.
Whether the appellate court’s interpretation of bona fide purchaser amounted to unjustifiable and unreasonable limitation of the right to property under Article 40 in violation of Article 19(3)(c), 20(1), 21(3) and Article 23 of the Constitution
87.The appellant contends that it is a bona fide purchaser of the suit property, having purchased it from Messrs. Bawazir & Co. for Kshs.18,000,000.00. That it was a second purchaser and acquired a valid and legal title, having carried out all the necessary due diligence and paid valuable consideration for the purchase of the suit property. That for these reasons, its title was indefeasible and protected under Article 40 of the Constitution, contrary to the superior courts’ findings.
88.The appellant avers that in carrying out due diligence, it sought confirmation from the relevant government registry that a valid title capable of transmission to it existed. It is its case that the consent to transfer was sought and obtained from the Ministry of Lands who also confirmed the validity of the title to the appellant vide the letter dated 9th October, 2006 stating that “the above plot is the genuine plot”. Further, it states that it obtained a beacon certificate and survey plans to determine the boundaries and extent of the property vide the letter dated 25th August, 2010. It asserts that neither the national government nor the local government (the 1st respondent’s predecessor) questioned the appellant’s title but confirmed the validity or legality of the appellant’s title, making the appellant a bona fide purchaser and its title remains indefeasible.
89.The appellant states that it periodically made payments of rates to the then local government and its successor, the 1st respondent. It made an application for Development Permission for the construction of a boundary wall, which was subsequently conditionally approved by the then Town Clerk Mombasa City Council on 31st August, 2006 and the National Environmental Management Authority permit was issued for the proposed development on 15th March, 2011 after the preparation and submission of an Environmental Impact Assessment Report.
90.The Black’s Law Dictionary 9th Edition defines a bona fide purchaser as:
91.The Court of Appeal in Uganda in Katende v Haridar & Company Ltd 2 E A 173, defined a bona fide purchaser for value as follows:
92.On the same issue, the Court of Appeal in Samuel Kamere v Lands Registrar, Kajiado Civil Appeal No. 28 of 2005  eKLR stated as follows:
93.As held by the Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No. 239 of 2009  eKLR, where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register.
94.To establish whether the appellant is a bona fide purchaser for value therefore, we must first go to the root of the title, right from the first allotment, as this is the bone of contention in this matter.
95.The appellant contends that prior to the first allotment and registration in 1989, the suit property was unalienated government land and the applicable law was the Government Land Act (repealed) (GLA). It asserts that the allotment was legal, regular and procedural as per the then prevailing legal regime, under the GLA. It is its case that the grant was issued under Section 3 of the said Act, wherein the President had the power, subject to the set limitations, to make grants or disposition of any estate, interest or rights over unalienated government land. It also urges that Section 10 of the Act limiting issuance of leases to a term of one hundred years was inapplicable to the suit property which is a freehold. In the same manner, the Physical Planning Act was inapplicable, retrospectively, as it was enacted and assented to on 24th October, 1996 and its commencement on 29th October, 1996 after the initial grant had been issued. It is the appellant’s further contention that the 1994 Survey Regulations providing for the coast foreshore reservation at 60 meters of the high watermarks were inapplicable as they were enacted and a corrigenda issued in 1996 after the initial grant had been issued.
96.The 2nd to 6th respondents aver that the prevailing legal and regulatory regime was adhered to in the allocation of the property to its first registered owner. They state that vide an allotment letter dated 23rd November, 1989, the Commissioner of Lands, in compliance with Section 9 of the GLA allocated H.E. Daniel T. Arap Moi an un-surveyed parcel of land measuring approximately 0.45 Hectares. The Director of Surveys then caused the property to be surveyed to reflect LR MN/1/6053 as per survey plan F/R 198/30. The Director of Surveys submitted a Deed Plan to the Commissioner of Lands and a grant of title was processed in favour of Daniel T. Arap Moi. On 19th December, 1989 the letter of allotment issued was revised to reflect the surveyed acreage of 0.49 Ha. A grant (title) was thus processed and a lease forwarded to the Registrar of Titles Mombasa. They further stated that prior to the allocation of the suit property, records at the lands’ office indicate that the property was an open space. It is their contention that H.E. Daniel T. Arap Moi, as the first registered owner, obtained good title protected under Section 26 of the Land Registration Act and section 23 of the Registration of Titles Act Cap 281 (repealed), and it is not public land.
97.According to the 1st respondent, there were pertinent requirements which ought to have been followed before the allocation of public land, including an application to the Chief Land Registrar for such allocation, thereafter a Letter of Allotment is issued spelling out the conditions to be fulfilled, a Part Development Plan (PDP) of the area is subsequently drawn and approved by the local authority of the area, which PDP is then forwarded to the Director Physical Planning. Once the approvals are made, the approved PDP together with the original Letter of Allotment are handed over to the Director of Surveys who prepares a Survey Plan. It contended that it is from this Survey Plan that a Deed Plan of the plot is prepared by the Survey Plan showing the dimensions of the plot and it is only after these procedural stages are completed that a grant or title is issued by the Chief Land Registrar. In this instance, they urge that the procedure was not followed.
98.Under Section 2 of the GLA, unalienated land was defined as Government land which is not for the time being leased or which the Commissioner of Lands has not issued any letter of allotment. Under Section 3 of the GLA, the President had power to, make grants or dispositions of any estates, interests or rights in or over unalienated government land, subject to any other written law. Section 9 of the GLA, empowered the Commissioner of Lands “to cause any portion of a township which is not required for public purposes to be divided into plots suitable for the erection of buildings for business or residential purposes, and such plots may from time to time be disposed of in the prescribed manner.” Further, under Section 10 of the GLA, the Leases of town plots could only be granted for any term not exceeding one hundred years.
99.The 1st respondent averred that a survey plan of the area drawn in the year 1971 showed that the suit property was in that year designated as an open space and not private land, and which open space was reserved for a public road. The 2nd to 6th respondents in their submissions similarly indicated that prior to the allocation of the suit property to H.E. Daniel T. Arap Moi, the suit property was an open space.
100.From the record and submissions, we note that the land was first allocated to H.E. Daniel T. Arap Moi in 1989. The applicable law at the time was the Land Planning Act, Cap 303, which was repealed by the Physical Planning Act Cap 286 which has since been repealed by the Physical and Land Use Planning Act No.13 of 2019. The Land Planning Act made provision for open spaces. Regulation 11(3) of the Development and Use of Land (Planning) Regulations, 1961 made under the Land Planning Act defined “public purpose” as any non-profit making purpose declared by the Minister to be a public purpose and includes educational, medical and religious purposes, public open spaces and car parks; and Government and local government purposes. Similarly, under the Physical Planning Act, Section 29 gave the local authorities power to reserve and maintain land planned for open spaces.
101.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 the appellant. It was therefore not available for alienation to H. E. Daniel T Arap Moi or for further alienation.
102.The Court of Appeal in its judgment, while finding that the title was irregularly and illegally allocated to H.E. Daniel T. Arap Moi was persuaded by the High Court decision in Republic v. Minister for Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others Mombasa HCMCA No. 617 of 2003  1 KLR (E&L) 563 where Maraga J. (as he then was) stated as follows:
103.The appellate court affirmed the trial court’s conclusion that the alienation of the open space was unprocedural to the extent of blocking existing access to the sea and 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. It found that the PDP would have settled the issue of whether there was a public access road to the beach through the suit property and/or at the positioning of the high-water mark in relation to the suit property.
104.The procedure for the allocation of unalienated land is laid out by the Environment and Land Court in Nelson Kazungu Chai & 9 Others vs. Pwani University  eKLR as follows:
105.This process is restated in African Line Transport Co. Ltd v The Hon. Attorney General, Mombasa, HCCC No.276 of 2003  eKLR where it was held that 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 then 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.
106.We note that the suit property was allocated to H.E. Daniel T. Arap Moi who was not a party to the suit. The 2nd to 6th respondents on the other hand at the trial court in the replying affidavit of Gordon Odeka Ochieng in response to ELC Petition 12 of 2017 stated that certain documents that were required to support the allocation of the suit property to H.E. Daniel T. Arap Moi were missing. These were, “the letter of application 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.”
107.We are careful to note that this Court has no jurisdiction to revisit the factual findings of the superior courts, and we are limited to the Court’s jurisdiction under Article 163(4)(a) in this case. It has not been disputed that indeed there was no evidence produced of the letter to the Commissioner of Lands seeking allocation of the suit property by the first registered owner, and there was no PDP before the survey was done. We therefore agree with the trial court and the appellate court that the allocation of the suit property to H.E. Daniel T. Arap Moi was irregular.
108.As we have established above, 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. In the case of Funzi Development Ltd & Others v County Council of Kwale, Mombasa Civil Appeal No.252 of 2005  eKLR the Court of Appeal, which decision this Court affirmed, stated that:
109.We note that the suit property was subsequently converted and H.E. Daniel T. Arap Moi registered as owner and obtained a freehold title. Further, the suit property herein is within the then Mombasa municipality. Contrary to the appellant’s averment, Section 10 of the GLA is applicable. Being a town plot, within the jurisdiction of the 1st respondent and its predecessor, it ought to have been an allocation for a lease for a term not exceeding 100 years.
110.Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible. The first allocation having been irregularly obtained, H.E. Daniel Arap Moi had no valid legal interest which he could pass to Bawazir & Co. (1993) Ltd, who in turn could pass to the appellant.
111.Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired. Having found that the 1st registered owner did not acquire title regularly, the ownership of the suit property by the appellant thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, as we already noted above the appellant could not benefit from the doctrine of bona fide purchaser.
112.We therefore agree with the appellate court that the appellant’s title is not protected under Article 40 of the Constitution and the land automatically vests to the 1st respondent 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. The appellant ought to have been more cautious in undertaking its due diligence.
Whether the appellant is entitled to the reliefs sought
113.The appellant prays that we set aside the appellate court’s judgment and have it substituted with the reliefs sought in ELC Petition No. 8 of 2017, in the alternative, that the matter be remitted to the dispute resolution mechanism envisaged under the IGR Act with parties granted leave to approach the High Court if dissatisfied with the determination rendered pursuant to their engagement under the IGR Act. From our findings, we have found no reason to disturb the findings of the superior courts below.
114.In light of the above analysis and our findings set out therein, we find that the suit herein does not amount to an intergovernmental dispute; and that ELC Petition 12 of 2017 is not res judicata HCCC No. 131 of 2011. The appeal did not surmount the jurisdictional parameters invoked on the other claims of a constitutional nature. What therefore remains is the issue of costs. This Court in the case of Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, Sup. Ct. Petition No. 4 of 2012;  eKLR set out the legal principles that guide the grant of costs and enunciated that generally, costs follow the event and costs should not be used to punish the losing party, but to compensate the successful party for the trouble taken in prosecuting or defending a suit. As each party was pursuing an apparent genuine constitutional legitimate claim, and the appeal not having succeeded, we see no reason to burden any of them on the limited question of costs.