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|Case Number:||Civil Appeal 252 of 2005|
|Parties:||Funzi Island Development Limited, J.B. Havelock & M.E. Havelock v County Council of Kwale, Commissioner of Lands & Pati Limited|
|Date Delivered:||27 Feb 2014|
|Court:||Court of Appeal at Mombasa|
|Judge(s):||David Kenani Maraga, Erastus Mwaniki Githinji, Wanjiru Karanja|
|Citation:||Funzi Island Development Limited & 2 others v County Council of Kwale & 2 others  eKLR|
|Case History:||(An appeal against the decision of the High Court of Kenya at Mombasa (J. Khaminwa, J.) dated 14th October, 2004 in H.C. MISC. CIVIL APPLICATION NO. 272 OF 1994)|
|History Docket No:||272 of 1994|
|History Judges:||Joyce Nuku Khaminwa|
The Commissioner for Lands or the County Council cannot set aside Public Land
Funzi Island Development ltd & 2 others v County Council of Kwale& 2 others
Civil Appeal No 252 of 2005
Court of Appeal at Mombasa
DK Maraga. W Karanja, EM Githinji JJA
February 27, 2014
Reported by Andrew Halonyere &Valarie Adhiambo
This was an appeal against a High Court decision dismissing the appellants judicial review where the appellants had sought orders of certiorari to quash the decision by County Council of Kwale to set apart a portion of alleged trust land for purposes of boat landing base and subsequent grant of lease to PATI ltd (3rd respondents) as gazetted by the commissioner of lands. The disputed land was next to Funzi Island which was specified as trust land under the 1st schedule to the Native Lands Act and the two were divided by a high water mark at the nearest edge of the inlet. It was the case of the appellants that the setting apart was ultra vires as the land was not trust land and the stipulated procedures for setting apart were not followed nor the setting apart made for the benefit of local residents. Further that the land in question was a government forest reserve.
Civil practice and procedure – appeal – first appeal to the Court of Appeal – duty of the appellate court to re-evaluate the evidence on record and reach its own conclusions.
Judicial Review – certiorari – application for certiorari to quash the decision of County Council to set apart a portion of alleged trust land - whether judicial review was the proper procedure for nullifying a title which was on the face of it granted by law – whether Kenya’s Judicial Review process was broad enough to ventilate other issues arising from a matter other than legal process
Land law -trust land - setting apart of trust land-what was the correct procedure to be applied in setting apart of trust land – whether the Council had authority to and did properly and regularly alienate the land - Registration of Titles Act section 23;Trust Land Act section 13; Constitution of Kenya (repealed) section 114(1)
Appeal allowed, order of the High Court dismissing the appellants notice of motion set aside and substituted with an order quashing the allocation of the suit land.
|Case Outcome:||Appeal allowed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE COURT OF APPEAL
(CORAM: GITHINJI, KARANJA & MARAGA, JJ.A)
CIVIL APPEAL NO. 252 OF 2005
FUNZI ISLAND DEVELOPMENT LIMITED…........................…. 1ST APPELLANT
J.B. HAVELOCK……………………….………………...….….. 2ND APPELLANT
M.E. HAVELOCK ………………………………..………...……. 3RD APPELLANT
COUNTY COUNCIL OF KWALE................................................ 1ST RESPONDENT
COMMISSIONER OF LANDS.................................................... 2ND RESPONDENT
PATI LIMITED ………….…...……..............................…........... 3RD RESPONDENT
(An appeal against the decision of the High Court of Kenya at Mombasa (J. Khaminwa, J.) dated 14th October, 2004
H.C. MISC. CIVIL APPLICATION NO. 272 OF 1994)
JUDGMENT OF GITHINJI, JA.
 This is an appeal from the judgment of the High Court (Khaminwa, J.) dismissing the appellants’ judicial review application for orders of certiorari and prohibition.
 The subject matter of the application was the setting apart by the County Council of Kwale – 1st respondent herein (the Council) of a portion of alleged Trust land for the purpose of Boat Landing Base and subsequent grant of a lease to PATI Limited (the 3rd respondent herein (PATI).
 The strip of land in question lies at the shores of Indian Ocean in Msambweni, Kwale District, Coast Province on the western side of Funzi Island. On or about 1992, Hon. K. B. Mwanzandi the area member of parliament whose letter head shows that he was an Assistant Minister for Public Works and Housing, apparently applied to the council for the setting apart of, and allocation of 0.7 hectares of the strip of land for use as Boat Landing Base. By a letter dated 23rd April, 1993 addressed to the District Commissioner, the Council expressed its intention to set apart the area stating:
“This is seen as a way to give the council opportunity to promote the interest of the local public as well as an opportunity to earn the council some revenue in this extremely difficult economic situation.”
On 9th June 1993 the Msambweni Divisional Land Control Board (the Divisional Board) gave its consent to the council to set apart the land measuring approximately 0.7 of a hectare for Funzi Island Boat Landing. By a letter dated 11th June, 1993 the District Commissioner informed the council that the consent given by the Divisional Board “should be discussed and minuted by the relevant Council Committee or possible a full council meeting (sic)”
 By a letter dated 13th April, 1994 the District Commissioner forwarded to the Commissioner of Lands his recommendation for setting apart the land, and the minutes of the Divisional Board. This is apparently because the Commissioner of Lands is given power by section 53 of Trust Land Act (TLA) to administer Trust land as agent of the council and is further authorized to execute a grant, lease, licence on behalf of the council. By Gazette Notice No 1831 dated 14th June, 1994 the Commissioner of Lands gazetted the setting apart of the land for purposes of Boat Landing Base. On 12th July, 1994 Hon. K.B. Mwanzandi asked the Commissioner of Lands to allocate the land to PATI Limited. Subsequently the Commissioner of Lands issued Grant of lease No. CR.N 106 dated 9th November, 1994 to PATI Limited under the Registration of Titles Act (RTA) of land reference No. 20247 measuring approximately 3.126 Hectares situated on Funzi Island Township for a term of 99 years from 1st August, 1994. The Grant shows that it is the council which granted the lease and special condition No. 5 thereof specified that the land shall only be used for Boat Landing and offices.
 The appellants filed an application for leave to apply for judicial review orders in early November 1994 before they were aware that a Grant of lease had been made to PATI. They subsequently filed the substantive application for judicial review orders on/or about 21st November, 1994. When Alessandro Torrian the managing director of PATI filed a replying affidavit disclosing that a Grant had been made to him, the appellants amended the application. Later, the application and the supporting statement were re-amended. The first relief sought in the re-amended application was for orders of certiorari to quash the Gazette Notice No. 3831 and the letter of allotment dated 27th July 1994. The grounds for quashing the Gazette Notice and the letter of allotment as disclosed in the statement and affidavits are broadly that, the setting apart was ultra vires and made without jurisdiction as the land is not Trust land and as the stipulated procedures were not followed nor the setting apart made for the benefit of local residents.
The second relief sought was an order of certiorari to quash the Grant No. LR.N 106 as being illegal and ultra vires as the land is Government Forest Reserve and not Trust land and as it was issued under RTA in breach of the law, nor was the Grant issued for the benefit of local residents.
The application was opposed by the respondents. The trial Judge ultimately dismissed the application after full hearing, holding in essence that:
The grounds of appeal essentially fault those findings.
 The central issue in the application was the status of the land. The appellants claimed that it was not Trust land while the respondents claimed it was Trust land. By virtue of section 115 of the Constitution of Kenya 1963, all Trust land within the jurisdiction of any County Council vested in the council for the benefit of the persons ordinarily resident on that land. However, in pursuance of section 117 and 118 of the Constitution and sections 7 and 13 of the TLA the council has power to set apart an area of Trust land either for purposes of Government on application by Government or by the council on its own volition for other purposes, including purposes which in the opinion of the council are likely to benefit the residents of the area by reason the use to which the area is to be put or by reason of the revenue to be derived from rent in respect thereof. However, there are stipulated procedures in the TLA to be followed by the council in setting apart an area of Trust land in either case.
 Section 114(1) of the 1963 Constitution defined Trust land by description. Pursuant to that definition Trust land includes:
“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 Act as 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.”
As Maraga, JA has correctly found in his judgment, the whole of Funzi Island falls under the definition of Trust land which is under the jurisdiction of the council. Indeed, under the first schedule to Native lands Trust Act, chapter 100 of 1948 Laws of Kenya, Funzi Island was specified as Native Land in Part 1 Section 1, .XXX Part XVI which was under the jurisdiction of Native Lands Trust Board. It should be noted that the boundary of Funzi Island is described in the aforesaid first schedule as …“down to high-water mark of the Indian Ocean.”
 However, the question still remains whether the land which the council set apart is a part of Funzi Island. An island is a piece of land surrounded by water. The Deed plans of LR 20247 granted to Pati indicates that it is bordered by Indian Ocean on both sides, the boundary being the high water mark on either side. The 1st appellant owns Land Reference No. Kwale/Funzi Island/103 which it purchased which is on Funzi Island. The title was issued under Registered Land Act (RLA) on 30th June 1990. The 2nd and 3rd appellants are the proprietors of adjacent land title No. Kwale/Funzi Island/102 which is also on Funzi Island whose title was issued on 5th May 1994 under the RLA
Anthony Duckworth (Duckworth) the managing director of the 1st appellant deponed in the supporting affidavit that Pati’s land is immediately in front of the land of 1st and 2nd appellants on the beach along Funzi Island and Pati’s land goes through the sea and becomes completely submerged at high tide. Allessandro Torrian (Allessandro) the Managing Director of Pati swore a replying affidavit in which he deposed, among other things, that, Pati’s land is not immediately in front of the appellants’ land on the beach as there is an inlet of water in between and that Pati’s land is part of the demarcated land. He also denied that Pati’s land becomes completely submerged at high tide but admitted that it becomes completely submerged only at very high spring tides about twice a year.
In his affidavit in reply Duckworth admits that there is an inlet of water between appellant’s land and the beach but states that the inlet is a mangrove swamp which fills up at high tide. The survey plan of Funzi Island registration section annexed to Duckworth’s affidavit shows that Funzi Island is bordered by a stretch of 50 metre high water mark. The impugned Gazette Notice no. 3831 describes the site partly thus:
“The site lies along Funzi beach on the western side of Funzi Island….”
The Commissioner of Assize P. M. Tutui who partly heard the application in the High Court visited the site and noted partly thus:
“The disputed beach is a kind of a bay. The applicant’s property is about 200 metres from that of interested party (Pati Limited). Between the two properties are mangroves and the area is under water during high tide. The stretch of mangrove between the two properties is about 50 m wide. The interested party’s property is therefore a small island in front of the main island on which the applicant’s property stands” and lastly, “the main controversy is the Beach which Pati Limited says was allocated to it by the Commissioner of Lands”.
 The appellants’ application was also supported by the affidavit of Charles G. Kariuki, a Forester employed by the Ministry of Environment and Natural Resources and stationed at Buda Forest Station at Mswambweni. He deposed in paragraphs 6, 7, 8 and 9 thus:
“6. That the whole area of the land granted to Pati limited between high and low water mark on Funzi Island is a mangrove forest which has been declared to be a protected forest area by proclamation No. 44 of 1932.
7. That I verily believe that this area has not been degazetted as a forest by the Minister in charge of forests.
8. That the said land is still protected forest area and neither the Commissioner of Lands nor Kwale County Council had any statutory powers to set apart and allocate this land to Pati Limited.
9. That the said land being protected forest area is not Trust Land nor is it vested in the County Council of Kwale.”
 Proclamation 44 of 1932 referred to by Kariuki is contained in the schedule to Forest Ordinance, Chapter 176 of Laws of Kenya, 1948 revised edition. The schedule contains the areas which the Governor by virtue of section 4 of the Ordinance declared as mangrove swamp forest reserves. The forest areas declared under the proclamation include:
“All land between high water and low water marks (ordinary spring tides) on the main land and islands adjacent to the coast from Kimbo Creek in the south to the village of Kiunga on the mainland and the island of Kiunga Mwini in the north” ..
“On the main land and islands adjacent to the coast from Chale point in the north to the boundary of Trust Territory of Tanyanyika in the south.”
There is a proviso to the proclamation which excludes areas within the boundaries which have been or may be declared private property under the Land Titles Ordinance or which are subject to grants from the Crown. Further by LN No. 174 of 1964 – entitled “The Kenya Independence Order in Council 1963 LN 718 of 1963” which took effect retrospectively from 1st June 1963, the Minister for Natural Resources declared the said mangrove swamp forest reserves contained in proclamation No. 44 of 1932 to be central forests by virtue of the powers given by the schedule to the 1963 Constitution.
 Although the proclamations of forest area by a Minister under section 4 of the repealed forests Act (Cap 385) were omitted from the schedule in the subsidiary legislation by virtue of section 5 of the Revision of Laws Act (Cap 1), section 65(1) (9) of the current Forests Act, 2005, No. 7 of 2005 states inter alia that any land which, immediately before the commencement of the Act was Forest under the repealed Act shall be deemed to be a State Forest under the current Act. Further, under the Forests Act, 2005, mangrove forests are classified as indigenous forests. It follows from the above analysis that proclamation No. 44 of 1932 was in force at the material time and is still in force today.
 The appellants’ case was that the land set apart and subsequently leased to Pati was not Trust land but both a public beach and a mangrove forest. The respondents’ case was that it was Trust land and neither a public beach nor forest land. The learned Judge made a finding that there was no evidence that the land was set aside for public use nor conclusive evidence that it was forest land. This was an administrative law action which was essentially civil in nature. Like in civil cases, the standard of proof was on a balance of probabilities. However, the standard of proof may vary from case to case depending on the nature and gravity of the case. Further, although the burden of proof lies in the first instance on the plaintiff, it may also shift according to the circumstances of each case (See Reg. v. Home Secretary, Exparte Khawaja  1AC 74). By way of example, where the presumption of regularity applies so that the decision challenged is prima facie lawful the burden of proof is on the plaintiff to prove to the contrary. There are also cases where it is sufficient for plaintiff to prove a prima facie case of breach of duty by a statutory body thereby shifting the burden of proof to a statutory body to show justification.
 It has been submitted by Mr. Gatonye learned counsel for Pati that judicial review is not the proper procedure for nullifying a title which on the face of it is granted in accordance with the law. The written submissions by Pati refer to several allegations of fact which according to it should have been proved by expert evidence from Marine experts, Survey Department and Forests Department. It is true that generally speaking, judicial review procedure is not well suited for resolving disputes on material facts. Indeed, there has been, again, generally speaking, judicial restraint from giving relief where there is material conflict of evidence on which the relief depends. In England, the procedural law has been reformed to allow disclosure of documents, interrogations and cross-examination in judicial review procedures. [See Senior Courts Act 1981].
In this case however, the primary issue was whether the land set apart was Trust land vested in the council by law. It was a jurisdictional question whose resolution necessarily depended substantially on documentary evidence. Ultimately, the only material conflict of evidence as between Duckworth and Alessandro was whether the land lies between high water mark and low water mark and whether it is completely submerged at high tide. The first issue whether the land lies between high and low water marks could have been resolved from the documents describing both the boundaries of Funzi Island and the land in question. The second issue is immaterial for, if the land in question lies between the specified water marks it is immaterial that it is completely submerged at high tides. Thus the case depended on the construction of the undisputed documents and the interpretation of the law and there was no material conflict of evidence to warrant the trial court or this Court to decline jurisdiction to resolve the dispute through judicial review procedure.
 I now briefly turn to the analysis of evidence. It is not necessary to reproduce the respective submissions by counsel, a task commendably done by Maraga, JA. The boundaries of Funzi Island extend down to the high water mark of the Indian Ocean. The disputed piece of land is a narrow strip of land which according to Alessandro measures about 30 metres wide at the widest part and about 1 kilometre long. According to its Deed Plan it is bordered by high water mark of the Indian Ocean on either side. The survey plan of Funzi registration section shows that Funzi Island is bordered by a 50 metres wide high water mark. The Commissioner of Lands vide Gazette Notice No. 3831 described the side as lying along Funzi beach on the western site of Funzi Island. P M Tutui the learned Commissioner of Assize who visited the locus quo described the disputed land as a beach. She also found that between the 1st and 2nd appellants’ properties and the disputed land is a 50 metres wide mangrove forest and also that the area is under water during high tide. Both Duckworth and Alessandro are in agreement that there is an inlet of water which is navigable at high tide between Pati’s land and the land of the 1st and 2nd appellants. Duckworth however deposes that this inlet of water is in fact the mangrove swamp which fills up at high tide and that at low tide, one walks through the swamp on to the beach in order to gain access to the creek (small bay) leading to open sea.
Lastly, by proclamation No. 44 of 1932 all land between the high and low water marks (ordinary spring tides) on the main land and islands adjacent to the coast in the specified areas, which from my reckoning includes the disputed land, was at the material time proclaimed as mangrove swamp forest reserve.
 The Concise Oxford Dictionary of Current English 9th edition, defines a foreshore inter alia as part of the shore between high and low water marks and a beach as a pebbly or sandy shore especially of the sea between high and low water marks.
The totality of the above evidence shifted the burden of proof to the respondents particularly the 1st and 2nd respondents to show that, nevertheless, the land was Trust land vested in the council. The 1st and 2nd respondents were represented by a State Counsel both in the High Court and in this Court. In the course of proceedings in the High Court the State Counsel indicated that the council intended to file a replying affidavit and the proceedings were adjourned for that purpose. The council failed to file a replying affidavit. The affidavit sworn by John Nyaga Gacivih, a State Counsel on behalf of the 2nd respondent lacked concrete evidence such as documentary evidence to show that the disputed land was Trust land vested the in council. In the end the assertion that the land was Trust land vested in the council remained a mere allegation.
 On analysis it is crystal clear that the high water mark forming the boundary of Funzi Island is at the nearest edge of the inlet which divides Funzi Island from the disputed land which inlet is, in fact, a mangrove swamp spanning 50 metres. The disputed land which the Commissioner of Assize loosely described as a small island is not part of Funzi Island. Had it been Trust Land, it could have been adjudicated together with Funzi Island and registered as such in the name of the council in 1990s when Funzi Island was adjudicated and individual titles issued to local residents. It is indeed a part of the foreshore and is a sandy breach as this Court observed when it visited the land. As section 102 of the Crown Lands Ordinance, Chapter 155 of Laws of Kenya, 1948, and as section 82 of Government Lands Act (Cap 280) similarly stipulate, the foreshore is reserved and a conveyance, lease or licence does not confer any right to the foreshore. The foreshore is State land and Article 62(1)(c) of the Constitution of Kenya 2010 now clarifies that all land between high and low water marks (foreshore) is public land. Moreover, the land is a part of the mangrove swamp forest reserve as described in the proclamation No. 44 of 1932. It follows that the appellants proved to the required standard that the land was not Trust land vested in the council and the learned Judge erred in holding to the contrary. In setting apart land which was not Trust land vested in it and gazetting the setting apart and granting of lease, the council and the Commissioner of Lands acted illegally and ultra vires and the resultant Grant of lease is a nullity.
 It has been submitted that the Grant of lease is protected by section 23 of the RTA. However, it is clear from the provisions of section 23(1) that the Act only protects a Certificate of Title issued to a purchaser of land upon transfer or transmission, which is not the case here.
 The appellant also impugned the validity of the setting apart and the Grant on grounds of procedural irregularities. Apparently, the land was set apart by the council under section 13(1)(c) of the TLA for purposes which was likely to be beneficial to the persons ordinarily resident in the area
Section 13(2) provides:
“The following procedure shall be followed before land is set apart under sub section (1) of this section –
Provided that where the setting apart is not recommended by the Divisional Board concerned, the resolution shall require to be passed by three quarters of all members of the council”
Section 13(3) requires the council to cause a notice of the setting apart to be published in the Gazette after the approval of the proposal by the council. Section 13(4) adopts the provisions of section 7(b) and (4); 8(1), 9, 10 and 11 of the Act. Section 7(3) is relevant. It provides that the notice published in the Gazette shall, among other things, specify a date before which applications for compensation (to any resident of the area set apart) are to be made to the District Commissioner.
 The irregularities or breaches of the law are particularized in the amended statement and adumbrated in the submissions of Mr. Khanna, learned counsel for the appellants both in the High Court and in this Court. They include failure to give notice to the public or effect compensation; setting apart land when it was not for the benefit of the public; giving a Grant under the wrong statute , giving a Grant for excessive land than set apart and for a different purpose.
 In this case, no notification by the council to the Divisional Board of the proposal to set apart land nor any notice by the council to the residents of the area of the proposal and date and time of the meeting of the Divisional Board were availed. Further there is no record that the Divisional Board heard the representations of the people nor did it submit to the council the record of the representations made. Lastly, although the District Commissioner by a letter dated 11th June 1993 advised that the consent of the Divisional Board should be discussed by the council there are no minutes and none were sent to the Commissioner of Lands, showing that the recommendations of the Divisional Board were tabled before a council meeting and approved by a resolution by the stipulated quorum.
 Turning to the Gazette notice and the Grant, the gazette notice did not give a date before which application for compensation should be made to the District Commissioner. It is a common ground that no compensation was paid to the residents by the council as stipulated by section 13(4) as read with section 8(1) of the Act.
The Grant is for land measuring 3.126 Hectares which is more than 0.7 Hectares set apart by the council and approved by the Divisional Board and specified in Gazette Notice No. 3831. As stipulated by section 53(a) of the TLA, the Commissioner of Lands has no power to grant more land than approved by a resolution of the council passed by a majority of the members of the council. The correspondence shows that the Commissioner of Lands inquired from the Director of Surveys about the increase in the area which the Director of Surveys explained. However the Commissioner of Lands did not refer the matter back to the council and the Divisional Board for approval to set apart the increased area and for the requisite resolution of the council. The Grant is a single whole and the excess area is not severable from the approved area. By granting more land than set apart by the council in accordance with the statute the Commissioner of Lands exceeded his statutory powers rendering the Grant illegal. In addition, no attempt was made by the council to show that the setting apart was genuinely for the benefit of the persons ordinarily residents in the area which is a mandatory prerequisite.
Further it is apparent that the setting apart of the land was obtained by Mwanzandi by misrepresentation that the land was for boat Landing Base when the real intention was to sell the land to Pati for construction of a hotel. The setting apart and the grant obtained by such misrepresentation is invalid.
Moreover, the Grant was issued contrary to the statute. Section 2(d) of the RLA which commenced on 16th September 1963 provides that the Registered Land Act shall apply to:
“All land which from time to time is set apart under section 117 or section 118 of the Constitution.”
It follows that the Commissioner of Lands could only have issued a Certificate of Lease in the prescribed form under the Registered Land Act. A Grant which does not conform with the law is invalid.
Lastly, the Grant erroneously describes the disputed land as situated in Funzi Island Township and not along Funzi beach as described by Gazette Notice No. 3831, perhaps to hide the trail of illegality of allocating a foreshore.
 The council held the Trust land for the benefit of the residents. Statutory procedural safeguards which are imposed for the benefit of the persons affected by the exercise of administrative powers by a statutory body are normally regarded as mandatory. Further, where the statute imposes a duty to notify the persons affected and to hear their representations, the statutory body should genuinely comply and a full and sufficient opportunity accorded to the persons affected to make their representations (Grunwick Processing Laboratories Ltd v. Advisory, Conciliation and Arbitration Services  AC 655; In re The Union of the Beneficiaries of Whippingham Church Commissioners for England  AC 245. The procedural safeguards in section 13(2) of the Trust Land Act which are described as mandatory particularly the requirement for issuing a notice, hearing and recording the residents’ representations and ultimately, and more importantly, approval by council by resolution passed by a majority of the members of the council went to the jurisdiction to set apart Trust land. Even if the land were Trust Land, the non compliance with the mandatory procedural requirements together with the breaches of the law by the Commissioner of Lands as shown above rendered the setting apart ultra vires and the subsequent Grant a nullity. The finding by the High Court that the required procedure was complied with is therefore patently erroneous. If the land was indeed Trust land, which it was not, the procedural irregularities and the non compliance with the law by the commissioner of lands, rendered the setting apart ultra vires and the subsequent Grant illegal.
 As regards the standing of the appellants to apply for judicial review, the affidavits of Duckworth explained the interest of the appellants in the matter of setting apart the land. The first appellant owns adjoining land Kwale/Funzi Island/103 where it has constructed a luxury tented camp comprising five luxury tents for tourist business. It owns several canoes, boats, dhows, used for tourism business and has been using the land set apart to land its boats and to access the sea which fact was admitted by Alessandro in his affidavit. Duckworth deponed that any development on the land set apart would seriously affect all the businesses of the first appellant which would be prevented from having access to the sea or land its boats and canoes and also deny villagers and local fishermen access to the sea. The 2nd appellant is a director of the first appellant and is also the proprietor jointly with his wife of the adjoining land Kwale/Funzi Island/102. When the 1st appellant noticed that some wooden bandas were being constructed on the subject land it objected to the District Commissioner by a letter dated 27th January, 1992.
Section 12 of the Trust Land Act gives a right of access to the High Court to
“any person claiming a right or interest in land set apart”… for among other things “determination of the legality of setting apart.”
The word “interest” is very wide and, includes the appellants’ commercial interest in the circumstances of this case. In Commissioner of Lands v. Kuntse Hotel Limited – Civil Appeal No. 234 of 1995 (unreported) this Court held that the respondent (Kuntse Hotel) had a sufficient interest in the land in front of its Hotel whose development would have blocked the view of the hotel from the highway thereby affecting the business and was therefore entitled to a hearing before the plot was allocated to the interested party by the Commissioner of Lands. An order of certiorari quashing the allocation was granted.
It follows that although the appellants had no legal right to the land set apart, they nevertheless had sufficient interest in the land and the learned Judge erred in finding to the contrary.
 I would for above reasons allow the appeal. As Maraga and Karanja, JJA agree, the appeal is allowed, the setting apart of the land, the Gazette notice No. 3831 dated 24th June, 1994 and the Grant No. CRN. No. 106 in respect of land reference No. 20247are quashed with costs to the appellants.
I would apologise for delay in delivering this judgment which was due to my assumption of onerous special duties and my subsequent posting outside Nairobi.
Dated and delivered at Nairobi this 27th day of February, 2014.
E. M. GITHINJI
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
IN THE COURT OF APPEAL
CORAM: GITHINJI, KARANJA & MARAGA JJ.A.
CIVIL APPEAL NO. 252 OF 2005
FUNZI ISLAND DEVELOPMENT LIMITED………..........….1ST APPELLANT
J. B. HAVELOCK…..………………….………….…..……..2ND APPELLANT
M. E. HAVELOCK………………………………..………….3RD APPELLANT
COUNTY COUNCIL OF KWALE…..…………….….…….1ST RESPONDENT
COMMISSIONER OF LANDS….………….……….…….2ND RESPONDENT
PATI LIMITED…………………………….…………..……3RD RESPONDENT
(An Appeal against the decision of the High Court of Kenya at Mombasa (Khaminwa, J) dated 14th October, 2004
H. C. MISC. CIVIL APPL. NO. 272 OF 1994
JUDGMENT OF KARANJA, JA.
I have had the advantage of reading the judgment of Githinji and Maraga, JJ.A in draft. I agree entirely with their analysis of the facts and their interpretation of the legal issues arising from the appeal and their findings on the same. I do not wish to belabor them as they have been exemplarily and succinctly covered.
I would only wish to comment on the suitability of the subject matter herein being disposed of by way of Judicial Review. I do not entertain any doubt whatsoever that the High court was properly seised of this matter in its Judicial Review jurisdiction as the primordial issue for determination before the Court was the legality of the allocation of the parcel of land in question. It is common ground that the subject matter herein is property worth a substantial amount of money. There were also serious and weighty arguments, for instance, whether the property in question was Trust Land or not; whether it was forest land or not; whether it formed part of Funzi Island or it formed part of the foreshore which could not be set aside for allocation.
In my view, a court sitting in its civil jurisdiction would have been better suited to hear all these issues and make its ruling on the same. As we all appreciate, a court sitting on Judicial Review exercises a sui genesis jurisdiction which is very restrictive indeed, in the sense that it principally challenges the process, and other technical issues, like excessive jurisdiction, rather than the merits of the case. It is also very restrictive in the nature of the remedies or reliefs available to the parties.
Unlike in England, Canada and India (see House of Lords decisions, O’REILLY VS MACKMAN  QBD page 237; O’Rouke vs Camden London Borough Council  A.C. 188 and Stovin vs Wise  3 ALL ER 801, Anns vs Marton London Borough Council  A.C. 728 Rajkot Municipal Corporation vs Manjulben Jayantilal Nakum  SCC 552 111 79; our Judicial Review process is not broad enough to accommodate a party who is not just aggrieved by the process but who may also want to ventilate other issues arising from the matter, or lay a claim for compensation or damages against some of the parties in the suit.
In my view, a matter such as this ought to have been fully heard as a civil claim where all the parties would have had an opportunity to bring all their legal ammunition in support of their claim. That way, issues of fraud as envisaged under the Registration of Titles Act (R.T.A), and other disputed facts would have been fully canvassed and conclusive determinations made on the same.
Having said so however, I am in agreement with my brother Judges that as the property in question was not Trust Land, then the 1st respondent lacked the requisite jurisdiction to set it aside for allocation to anybody. Having set it aside for allocation illegally, the 2nd respondent went further to issue the Grant No. C. R. No. 106 under the R.T.A., which again was in blatant contravention of Section 2(d) of the RLA which clearly stipulated that all land set aside under Sections 117 or Section 118 of the Constitution i.e Trust land was supposed to be registered under that statute. Issuing the Grant herein under the R.T.A was in itself an act in excess of jurisdiction and squarely within the ambit of the Judicial Review process.
All in all, I agree that this appeal has merit and I would therefore, allow it. I also agree with the proposed order of costs.
Dated and delivered at Nairobi this 27th day of February, 2014.
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
IN THE COURT OF APPEAL
(CORAM: GITHINJI, KARANJA & MARAGA, JJ.A)
CIVIL APPEAL NO. 252 OF 2005
1. FUNZI ISLAND DEVELOPMENT LTD.
2. J.B. HAVELOCK
3. M.E. HAVELOCK………………………......................……..APPELLANTS
1. COMMISSIONER OF LANDS…………………….1ST RESPONDENT
2. COUNTY COUNCIL OF KWALE……...…………..2ND RESPONDENT
(Being an appeal against the decision of the High Court of
Kenya at Mombasa (Lady Justice Joyce Khaminwa) dated
14th October 2004
MISC. CIVIL APPLICATION NO. 272 OF 1994
JUDGMENT OF MARAGA, JA
“4(1) The Minister may, from time to time, by notice in the Gazette-
(2) Before a declaration is made under paragraph (b) or paragraph (c) ofsubsection (1), twenty-eight days’ notice of the intention to make the declaration shall be published by the Minister in the Gazette.”
“114(1) Subject to this Chapter, the following descriptions of land are Trust land-
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 Act as in force on 31st May, 1963), and which was on 31st May, 1963 vested in the Trust Land Board by virtue of any law or registered in the name of the Trust Land Board; the area 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 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.
(2) In this Chapter, references to a county council shall, in relation to land within the areas of jurisdiction of the Taveta Area Council, the Pokot Area Council, the Mosop Area Council, the Tinderet Area Council, the Elgeyo Area Council, the Marakwet Area Council, the Baringo Area Council the Olenguruone Local Council, the Mukogodo Area Council, the Elgon Local Council, and the Kuria Local Council, be construed as references to those councils respectively”
DATED and delivered at Nairobi this 27th day of February, 2014
JUDGE OF APPEAL