Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment)

Case Caption:

Supreme Court Petition No. 8 (E010) of 2021: Dina Management Limited (Appellant) versus County Government of Mombasa, The Chief Land Registrar, The Land Registrar, Mombasa, The Director of Surveys, The Director Physical Planning, The Hon. Attorney General (Respondents).

Case URL:

http://kenyalaw.org/caselaw/cases/view/256748/

Summary Significance:

Interpretation of Article 40 of the Constitution ā€“ Whether a title whose root has been challenged can benefit from the doctrine of a bonafide purchaser.

Applicable laws:

Article 40 of the Constitution
The Government Lands Act (repealed)

Brief Facts:

The genesis of the appellantā€™s grievance is that on various dates in September, 2017, the 1st respondent, County Government of Mombasa, without prior notice forcefully entered the property known as MN/1/6053 situated in Nyali Beach, Mombasa County, registered to the appellant demolished the entire perimeter wall facing the beachfront and flattened the whole property to be at the same level as the beach. It was urged by the 1st respondent that the entry and demolition was an enforcement action to create a thoroughfare to the beach as the suit property was public land and not private. Aggrieved by the 1st respondentā€™s actions, the appellant filed suit against the 1st respondent. The appellant sought to asserting its ownership to the suit property contending that it was not guilty of any illegalities or irregularities.

Issues for Determination:

I. Whether the appeal meets the constitutional threshold under Article 163(4)(a) of the Constitution?
II. Whether the appellantā€™s rights under Article 27(1) and 50(1) of the Constitution were violated by the courtā€™s application of the doctrine of res judicata in the alternative issue estoppel.
III. 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
IV. Whether the appellate courtā€™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
V. Whether the appellant is entitled to the reliefs sought

Holding:

The Court held that the appeal correctly invoked the Courtā€™s jurisdiction to the extent of determining only three questions, that is issues (ii), (iii) and (iv) as provided under Article 163(4)(a) of the Constitution. 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. 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, the appellant could not benefit from the doctrine of bona fide purchaser. The Court agreed with the appellate court that the appellantā€™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. And added that, the suit property by its very nature being a beach property, was always bound to be attractive and lucrative and therefore the appellant ought to have been more cautious in undertaking its due diligence. The Court further held that that the suit did not amount to an intergovernmental dispute; and that ELC Petition 12 of 2017 was 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. And therefore dismissed the petition.

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