I. Preliminaries
1. The Judgment of this Court pertains to the filed Constitutional Petition dated 15 th June, 2023 by Julius Ogogoh, Commissioner for Human Rights and Justice, Active Environmental Team, Sheria Na Haki Human Rights Institute, Portreitz Beach Management Units Network, and Ujamaa Centre , the Petitioners herein, against Sahal Ahmed Dahir, Kahia Transporters Limited, the Chief Land Registrar – Kenya, the Director of Survey of Kenya, the National Land Commission, the Cabinet Secretary Ministry of Land, Planning and Housing, and the Honourable Attorney General , the Respondents herein. The Petition was brought under the provisions of Articles 1(3)(c), 2(1)(2)(4), 3, 10, 22, 23, 40(6), 42, 47, 48, 60, 61, 62, 67, 69, 70, 73, 165, 258 and 260 of the Constitution of Kenya, 2010, together with Section 45 of the Survey Act, Regulation 110 of the Survey Regulations, 1994, and Section 13 of the Environment and Land Court Act No. 12A of 2012. The Petition was accompanied by affidavits in support and annexures thereto.
2. Upon service of the Petition, the Respondents while opposing the Petition filed the following pleadings accordingly. These were:-
a) the 1 st and 2 nd Respondents entered appearance and filed responses opposing the Petition.
b) The 3 rd and 4 th Respondents, namely the Chief Land Registrar and the Director of Survey of Kenya, filed Replying Affidavits defending the survey and registration process.
c) The 5 th Respondent, the National Land Commission, filed a response asserting its constitutional mandate over public land management.
d) The 6 th Respondent, the Cabinet Secretary Ministry of Land, Planning and Housing; and
e) the 7 th Respondent, the Honourable Attorney General, filed Grounds of Opposition and affidavits.
3. The Petitioners thereafter filed supplementary affidavits in further response to the replying affidavits of the Respondents.
II. Description of Parties
4. The 1 st Petitioner, Julius Ogogoh, is a law abiding citizen of Kenya, a public spirited individual, and a human rights defender. He is the Executive Director of the Commission for Human Rights and Justice (CHRJ), an organization established to promote democratic governance, economic and social development, and prosperity. He brings this Petition both in his personal capacity and on behalf of the public pursuant to Articles 22, 70, and 258 of the Constitution of Kenya, 2010.
5. The 2 nd Petitioner, Active Environmental Team, is a duly registered environmental watchdog mandated to protect, conserve, and manage wetlands, riparian areas, and ecosystems. It acts in the public interest to preserve aquatic flora and fauna and to safeguard the environment for present and future generations.
6. The 3 rd Petitioner, Sheria Na Haki Human Rights Institute, is a registered non governmental organization operating within the Republic of Kenya. It is a human rights defender focusing on good governance, land rights, and fairness in society, and is authorized to institute proceedings in defence of constitutional rights.
7. The 4 th Petitioner, Portreitz Beach Management Units Network, is a duly registered and gazetted beach management unit mandated to manage, conserve, and protect fishermen landing sites, the environment, and the ecosystem within Port Reitz, Mombasa. It represents local fishermen and communities who rely on the foreshore for livelihood.
8. The 5 th Petitioner, Ujamaa Centre, is a registered non governmental organization with offices in Mombasa. It operates as a human rights watchdog in democracy, land rights, and environmental issues, and brings this Petition in the public interest.
9. The 1 st Respondent, Sahal Ahmed Dahir, is a male adult of sound mind residing and working for gain in Mombasa. He was the original allottee of Title No. CR 70862 situated at Port Reitz Creek, Mombasa, and subsequently transferred the said parcel of land to the 2 nd Respondent.
10. The 2 nd Respondent, Kahia Transporters Limited, is a duly registered company incorporated under the Companies Act, 2015, and carrying on business within the Republic of Kenya. It is the transferee of the suit land having legally from the 1 st Respondent through purchase being of the mode of land acquisition under the provision of Section 7 of the Land Act, No. 6 of 2012.
11. The 3 rd Respondent, Chief Land Registrar – Kenya, is established under the provision of Section 13 of the Land Registration Act, 2012. The office is charged with the duties of land registration and titling in Kenya, including maintaining land registers and records.
12. The 4 th Respondent, Director of Survey of Kenya, is established under Section 3 (1) of the Survey Act, Cap. 299, Laws of Kenya. The office is responsible for land survey, mapping, and preparation of deed plans, among other duties.
13. The 5 th Respondent, the National Land Commission, is a constitutional commission established under the provision of Article 67 ( 1 ), ( 2 ) & ( 3 ) of the Constitution of Kenya, 2010. Primarily, it is mandated to manage public land on behalf of the national and county governments, and to investigate present or historical land injustices.
14. The 6 th Respondent, the Cabinet Secretary, Ministry of Land, Planning and Housing, is responsible for policy formulation, management, and control of land matters in Kenya, including oversight of planning and housing.
15. The 7 th Respondent, Honourable Attorney General, is the Principal Legal Adviser to the Government of Kenya under Article 156 of the Constitution. The office is mandated to promote, protect, and uphold the rule of law and defend public interest.
III. Court directions before the hearing
16. Nonetheless, in the course of time, the Honourable Court fixed the matter for hearing the parties having fully complied on the Provisions of Order 11 of the Civil Procedure Rules 2010.
17. They were directed file written submissions. Eventually, it was set down for delivery of Judgment with the Court giving directions on submissions.
IV. The Petitioner’s case
A. Background facts to the case
18. On or about 20 th May, 1964, a strip of land comprising the coastal foreshore of the Indian Ocean situated at Port Reitz Creek, Mombasa was gazetted as a mangrove forest vide Kenya Legal Notice No. 174. The Petitioners stated that the said Legal Notice remained in force, as it had never been revoked or amended.
19. With the advent of the formation of Beach Management Units (BMUs), which were registered and mandated to manage, conserve, and protect landing sites and their environs, several members of the 4 th Petitioner were duly registered and gazetted. These included:
• Mkupe Beach Management Unit
• Ngare Beach Management Unit
• Kitanga Juu Beach Management Unit
20. The said BMUs carried out their mandate of managing and conserving fishermen’s landing sites, protecting the environment, and safeguarding the ecosystem to ensure the growth of aquatic flora and fauna. Even before their formal registration, members of the 4 th Petitioner had, since time immemorial, used a portion of the strip (later registered as Land Reference 51691/VI/MN, Title No. CR 70862) as a landing site. They managed the land, conserved it, and protected the environment from disturbance and destruction. In June, 2023, members of the 4 th Petitioner discovered encroachment by the 2 nd Respondent on a portion of the strip. Upon further investigation, they established that the land had been illegally alienated and acquired by the 1 st Respondent, who subsequently transferred it through sale to the 2 nd Respondent. Efforts by the 4 th Petitioner to resolve the issue through the County Government of Mombasa and the National Government, specifically the County Executive Committee Member in charge of Land and the Mombasa County Commissioner, proved futile.
21. The Petitioners further established that in the year 2017, the 4 th Respondent, in connivance with the 3 rd Respondent, orchestrated the survey and excision of approximately 90.4 hectares of the protected mangrove forest. A Deed Plan was approved, and the land was registered as private property, available for alienation and acquisition, without adherence to constitutional safeguards on riparian land, and without public participation or consultation of stakeholders, including the 4 th Petitioner. The excised portion formed part of the foreshore, which was reserved for public use, including recreation, and was therefore not available for allocation to private entities. The Petitioners contended that the alienation and allocation of the suit land to the 1 st Respondent, and its subsequent transfer to the 2 nd Respondent, was done in secrecy, without the knowledge of the National Land Commission (NLC), the custodian of public land in Kenya.
22. As a result, local villagers and fishermen, particularly members of the 4 th Petitioner, who had long used the land as a boat landing base, were locked out of their traditional fishing activities. They were rendered jobless and faced threats, intimidation, and violence from the 2 nd Respondent and its agents. The Petitioners emphasized that the right of access to the ocean through the foreshore was a public right secured by a public easement, which could not be extinguished by private encroachment.
23. Finally, the Petitioners asserted that any development or construction on the suit land, apart from its traditional use as a fishermen’s landing site, would destroy aquatic breeding grounds and disturb the ecosystem, with adverse impacts for both present and future generations.
B. Statutory Provisions in respect to Swamp/wetland/riparian land in Kenya
24. “Where a public authority transgresses the law or is about to transgress it, in a way that offends or injures thousands of her majesty's subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced and the courts in their discretion can grant whatever remedy is appropriate” .
25. According to the Petitioners in the Preamble to the Constitution of Kenya, the people of Kenya, including the Petitioners, have aspirations for a Government that is based on the essential values of human rights, equality, freedom, democracy, social justice, and the rule of law.
Land
a. Article 1(3) (c) of the Constitution of Kenya provides that all sovereign power under the Constitution is delegated to state organs, the Judiciary and Commissions which shall perform their functions in accordance with the Constitution. The article mandates the court to exercise its jurisdiction in the realization of the constitutional provisions.
b. Article 2(1) of the Constitution of Kenya affirms the supremacy of the Constitution and provides that the Constitution binds all State Organs at both levels of government.
c. Article 2(4) of the Constitution of Kenya provides among other things that any act or omission in contravention of the Constitution is invalid to the extent of its contravention.
d. By dint of Article 3 of the Constitution of Kenya the Petitioners have an obligation to respect, uphold and defend the constitution. The petitioners are public-spirited individuals, entities and a human rights watchdog who have instituted these proceedings in the interest of the public and their public law duty aforesaid, in defence of the constitution and the observance of the rule of law.
e. Article 22(1) of the Constitution of Kenya accords them rights either on their own or acting in public interest or otherwise to institute court proceedings to enforce any provision of the Constitution notwithstanding any other cause of action available to them under any other law.
f. The right to access justice is guaranteed under Articles 48 of the Constitution and the state is obligated to ensure access to justice for all persons. The Petitioners have instituted these proceedings in the interest of the public and in the promotion of access to justice.
g. Moreover, Articles 258 of the Constitution has empowered every person, to move the Courts, contesting any contravention of the Bill of Rights or the Constitution in general.
h. Moreso, by dint of Article 260 of the Constitution, every person, whether corporate or non-incorporated has unhindered access to justice under the current constitutional dispensation.
i. Rule 4(2)(iii) of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 permits a person acting in the public interest to institute where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened.
j. Furthermore under Article 10 of the Constitution, the national values and principles of governance therein bind all State organs, State officers, public officers and all persons, whenever any of them inter alia enacts, applies or interprets any law; or makes or implements public policy decisions.
k. The Supreme Court in the case of “in the Matter of the Interim Electoral Commission [2011] eKLR” , affirmed the values and principles articulated in the preamble, in Article 10, in Chapter 6 and in various other provisions of the Constitution, which addresses the critical historical, economic, social and cultural realities in Kenya.
l. The principles of good governance and the rule of law not only require that every state organ or officer acts only within the powers conferred on them by and in accordance with the constitution but the principles also require state organs/officers to discharge legal obligations required of them by the Constitution or any other law. Critically the rule of law requires state and public officers to act in accordance with the law.
m. The Petitioners therefore had locus standi, as a public watchdogs, to interrogate the allocation process of public land and to approach this Honourable court to investigate the procedural propriety of the allocation thereof and to any challenge the alienation of the suit land that is unlawful and not procedural.
n. By dint of Article 23(3) of the Constitution of Kenya this Honourable court has authority to uphold and enforce the Constitution. Similarly Article 23 of the Constitution sets out the remedies which a court may grant pursuant to court proceedings brought under article 22 thereof. This Honourable Court therefore has jurisdiction to grant “an appropriate relief”, including a declaration of rights, a conservatory order, an injunction, a declaration of the invalidity of a law, and an order for compensation in terms of Article 23(3) (a-e) of the Constitution.
o. Further under Article 165(3) (b) of the Constitution of Kenya, 2010, this Honourable court is vested with jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of whether anything said to be done under the authority of the Constitution or of any law is consistent with the Constitution.
p. Furthermore, under Article 165 (3) (b) and (d) of the Constitution, this Honourable Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
q. By dint of Section 13 of the Environment and Land court Act No.12A of 2012 this Honourable court is vested with jurisdiction to inter-alia hear and determine all the disputes in accordance with Article 162(2)(b) of the Constitution.
r. Meanwhile under Section 13(2)(d) and (e) of the Environment and Land court Act No.12A of 2012 this Honourable court in exercise of its jurisdiction under Article 162(2)(b) of the Constitution has powers to hear and determine disputes inter alia relating to public, private and community land and/or other disputes relating to the environment and land.
s. Further under Section 13(3) of the Environment and Land court Act No.12A of 2012,this Honourable court has jurisdiction to hear and determine applications for redressing a denial or infringement of or threat to, fundamental freedoms relating to clean and healthy environment under Articles 42, 69 and 70 of the Constitution.
t. Section 13(7) of the Environment and Land court Act No.12A of 2012 sets out the remedies which this Honourable court may grant under the Act.
u. In a nutshell by dint of Article 1(c) 4(2) 10, 22, 23, 50(1), 162, 165, 258 and 259 of the constitution as read together with Section 13 of the Environment and Land court Act No.12A of 2012 this Honourable court is vested with jurisdiction inter-alia to hear any question regarding violation of Land Rights, Environmental Rights and issues determining if such act or commission or omission are constitutional and the interpretation of the constitution including question of contradiction between any Law and regulation and the constitution and to protect the constitution from any threats or violation.
Violations of the Constitution and other laws
26. On 28 th August, 2010, the people of Kenya promulgated and bequeathed to themselves the Constitution of Kenya, 2010. Among the radical changes introduced were provisions necessitated by numerous cases of open fraud and irregular allocation of public land to private and politically connected individuals, particularly touching on matters of land and the environment.
27. By virtue of Article 67 , the Constitution established the National Land Commission (NLC), the 5 th Respondent, with functions that included the duty to “initiate investigations, on its own initiative or on a complaint, into present or historical land injustices and recommend appropriate redress.” .
28. Further, Article 68 (c)(v) directed Parliament to enact legislation enabling the review of all grants or dispositions of public land to establish their propriety or legality. Pursuant thereto, Parliament enacted the National Land Commission Act, No. 5 of 2012, which operationalized the NLC. Under Section 14 (1) of the Act, the Commission was empowered, within five years of commencement, to review all grants and dispositions of public land, either on its own motion or upon a complaint, to establish their legality.
29. Articles 67 and 68 (c)(v) of the Constitution, read together with Section 14 of the NLC Act, therefore empowered the 5 th Respondent to review all grants of public land to confirm their propriety. Where land previously classified as public was registered as private, the Commission was entitled to investigate the process of conversion.
30. The Constitution, under Article 62(1)(a), (g), and (i), defined public land to include:
• Land which at the effective date was unalienated government land;
• Government forests, game reserves, water catchment areas, national parks, sanctuaries, and specially protected areas;
• All land between the high and low water marks.
31. The suit land fell squarely within these definitions, being part of a gazetted mangrove forest and foreshore area.
32. Additionally, Section 45 of the Survey Act and Regulation 110 of the Survey (Amendments) Regulations, 1994 provided that where unalienated government land fronting the coast was surveyed for alienation, a strip of not less than 60 metres above the high-water mark had to be reserved for government purposes. The law outrightly forbade the conferment of any right to the foreshore by conveyance, lease, or license.
33. The suit land, lying between the high and low tide water marks, was excised from the foreshore—land reserved for public use, including recreation—and was therefore not available for allocation to private entities. The 3 rd and 4 th Respondents had no authority under the provision of Article 62 of the Constitution or Regulation 110 of the Survey Regulations, 1994 to alienate it.
34. The Petitioners further averred that the land was reserved for government purposes and could only have been alienated under the direction of the Minister responsible for Survey of Kenya. In the absence of such direction, the grant and encroachment were patently unlawful and void.
35. The alienation and allotment of the suit land to the 1st Respondent constituted a grave violation of the national values and principles of governance under the provision of Article 10, which demanded integrity, transparency, and accountability. It also violated the rules of natural justice under Article 47, which guaranteed every person the right to administrative action that was expeditious, efficient, lawful, reasonable, and procedurally fair. The members of the 4 th Petitioner were denied fair administrative action when the land was alienated without consultation or public participation.
36. Moreover, the suit land remained a protected forest area and a landing site for fishermen, and was therefore not available for alienation. Neither the 3 rd nor the 4 th Respondents had statutory powers to set apart, alienate, or allocate it. The alienation and allotment of the suit land to the 1 st Respondent was illegal, unconstitutional and contrary to Section 45 of the Survey of Kenya Act, Cap 299, Laws of Kenya and Regulation 110 (1) of The Survey Regulations 1994.
37. The 3 rd and 4 th Respondents herein acted illegally by allocating the suit land to the 1 st Respondent, which land he had curved out of the foreshore contrary Regulation 110 (1) of the Survey Regulations of 1994. Without following the constitutional safeguards on riparian Land and prohibition on its acquisition and alienation on by any person whatsoever, the 3 rd and 4 th Respondents in contravention of Section 45 of the survey Act and Regulation 110 under 1994 survey regulation caused the same to survey, approved a deed plan and had the same registered as private Land, and making it available for alienation and acquisition for private use.
38. Meanwhile, whereas right to property is protected under Article 40 of the Constitution, the said protection of the right to property does not extend to illegally acquired property. In the circumstances, the Constitution of Kenya, 2010, while continuing to protect the right to lawfully acquired property, expressly provided in Article 40(6) that the constitutional protection of the right to property did not extend to protection of illegally acquired property.
39. The Petitioner averred that the people of the Republic of Kenya did not enact the Constitution in vain and the Constitution is not an abstract and hollow document hence this Honourable court should not countenance the fragrant breach of the Constitution.
40. The Petitioner further stated that the parent ministry under which the 3 rd and 4 th Respondents fall, had failed to carry on its mandate in making sound Land policies and protecting the suit Land as provided for under constitution and statute Law and as a result has enabled the suit Land to illegally and wrongly alienated and allocated to the 1 st Respondent land subsequently sold and transferred to the 2 nd Respondent.
C. Prayers
41. The Petitioners urged the Court to determine the following questions:
a) Whether the suit Land as delineated in Land Survey Plan 411154 being Land Reference 51691/VI/MN and registered as title CR 70862 falls within the high water and low water mark of Indian Ocean as per the provision of Article 62 (1) (I) and thus riparian or offshore Land?
b) Whether the suit Land form part and parcel of mangrove as per legal notice no.174of 20th May 1964 and that the same has been fishermen Landing sites and breeding site for both aquatic flora and fauna?
c) Whether the suit parcel of Land was available for alienation and private acquisition as of the year 2017?
d) Whether the procedure for conversion of public Land to private was adhered to and follow and acquisition of the suit land was above board?
e) Whether the public participation on the stakeholder was carried out especially on the people to be impacted by the changes on the entire ecosystem.
f) Whether the Rights of the private owner supersedes the public interest and the common good which accrues from public use of the subject parcel of Land.
g) Whether the principles set on alienation and acquisition of public Land (riparian Land) as set out by the supreme court of Kenya in the case of “Dina Development – Versus - County government and 5 others” do apply.
h) Whether the constitutional protection of the right to property provided in Article 40 (6) that the constitutional extends to the protection of illegally acquired property
i) Whether the resultant Certificate of Title from the impugned process and procedure is valid and can confer ownership and the same is indefeasible
42. The Petitioners prayed for the following reliefs:-
a. A declaration that all that parcel of Land comprising Land Reference NO.51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa is riparian Land forming part of the beach property within the high and lower water marks of the Indian Ocean and its alienation and acquisition by the 1s Respondent and subsequent by 2 nd Respondent was from inception was unconstitutional, illegal, unlawful and thereby null and void ab initio.
b. A declaration that the 3 rd and 4 th Respondents acted illegally by allocating all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa to the 1 st Respondent, which land he had partly curved out of the foreshore contrary to Article 62 of the Constitution and Regulation 110 of the Survey (Amendments) Regulations 1994.
c. A declaration that the 3 rd and 4 th Respondents abused their office and acted illegally and unconstitutionally in alienating all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa which land he had partly curved out of the foreshore and gazetted forest land contrary to Article 62 of the Constitution and Regulation 110 of the Survey (Amendments) Regulations 1994.
d. A declaration that the 4 th Respondent abused its office and acted illegally and unconstitutionally in extending the boundary of all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa to cover a portion of the offshore and gazette forest land;
e. A declaration that the Respondents acts of omission and commission were violation of the constitution and the Law in particular Article 62 of the Constitution and regulation 110 of the Survey (Amendments) Regulations 1994.
f. Declaration issued that the actions of the 3 rd Respondent violated the 4 th Petitioner’s and its members’ right to fair administrative action as guaranteed by Article 47 of the Constitution.
g. A declaration that the alienation of alI that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa by the 3rd and 4th Respondents to the 1 st Respondent and a portion of LR No MN/1/5901 that encroaches on the reserve land by the 2 nd Respondent was done in breach of the rules of natural justice, procedural and administrative fairness and national values and principles of governance.
h. A declaration that the alienation by the 3 rd and 4 th Respondents to the 1 st Respondent of all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa which is the 4 th Petitioner’s Landing site and access to the Indian Ocean beach violated the 4 th petitioners’ right to equal access to public property.
i. A declaration that the extension by the 4 th Respondent of the boundary of all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa to cover a portion of the reserve land which is the 4 th Petitioner’s access to the Indian Ocean beach was a violation of the appellants’ right to equal access to public property.
j. A declaration that the alienation of a reserve land by the 4 th Respondent to the 1 st Respondent and the subsequent sell and transfer to the 2 nd Respondent for private use was a violation of the 4 th Petitioner's right to clean and healthy environment and equal access to public property.
k. An order of injunction to restrain the 2 nd Respondent, its directors, owners, servants and/or agents from selling, transferring, mortgaging, charging, leasing, developing, putting up a wall or fence or blockage of any nature on and from having any other or further dealing with all that parcel of Land comprising Land Reference NO.51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa.
l. A permanent injunction to restrain the 1 st and 2 nd Respondents, their officers, servants and/ or agents from blocking the 4 th petitioner’s access to and view of the Indian Ocean through all that parcel of Land comprising Land Reference NO.51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and LR No MN/I/5901 in any manner whatsoever.
m. A mandatory injunction compelling the 1 st and 2 nd Respondents to demolish a stone wall and any other structure that they have constructed on all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and LR No MN/I/5901, Mombasa;
n. An order of Judicial Review in the nature of certiorari to bring into this court and quash the decision of the 3 rd and 4 th Respondents to alienate and allocate all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and LR No MN/I/5901, Mombasa to the 1 st Respondent;
o. An order to Judicial Review in the nature of certiorari to
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1. The Judgment of this Court pertains to the filed Constitutional Petition dated 15 th June, 2023 by Julius Ogogoh, Commissioner for Human Rights and Justice, Active Environmental Team, Sheria Na Haki Human Rights Institute, Portreitz Beach Management Units Network, and Ujamaa Centre , the Petitioners herein, against Sahal Ahmed Dahir, Kahia Transporters Limited, the Chief Land Registrar – Kenya, the Director of Survey of Kenya, the National Land Commission, the Cabinet Secretary Ministry of Land, Planning and Housing, and the Honourable Attorney General , the Respondents herein. The Petition was brought under the provisions of Articles 1(3)(c), 2(1)(2)(4), 3, 10, 22, 23, 40(6), 42, 47, 48, 60, 61, 62, 67, 69, 70, 73, 165, 258 and 260 of the Constitution of Kenya, 2010, together with Section 45 of the Survey Act, Regulation 110 of the Survey Regulations, 1994, and Section 13 of the Environment and Land Court Act No. 12A of 2012. The Petition was accompanied by affidavits in support and annexures thereto.
2. Upon service of the Petition, the Respondents while opposing the Petition filed the following pleadings accordingly. These were:-
a) the 1 st and 2 nd Respondents entered appearance and filed responses opposing the Petition.
b) The 3 rd and 4 th Respondents, namely the Chief Land Registrar and the Director of Survey of Kenya, filed Replying Affidavits defending the survey and registration process.
c) The 5 th Respondent, the National Land Commission, filed a response asserting its constitutional mandate over public land management.
d) The 6 th Respondent, the Cabinet Secretary Ministry of Land, Planning and Housing; and
e) the 7 th Respondent, the Honourable Attorney General, filed Grounds of Opposition and affidavits.
3. The Petitioners thereafter filed supplementary affidavits in further response to the replying affidavits of the Respondents.
II. Description of Parties
4. The 1 st Petitioner, Julius Ogogoh, is a law abiding citizen of Kenya, a public spirited individual, and a human rights defender. He is the Executive Director of the Commission for Human Rights and Justice (CHRJ), an organization established to promote democratic governance, economic and social development, and prosperity. He brings this Petition both in his personal capacity and on behalf of the public pursuant to Articles 22, 70, and 258 of the Constitution of Kenya, 2010.
5. The 2 nd Petitioner, Active Environmental Team, is a duly registered environmental watchdog mandated to protect, conserve, and manage wetlands, riparian areas, and ecosystems. It acts in the public interest to preserve aquatic flora and fauna and to safeguard the environment for present and future generations.
6. The 3 rd Petitioner, Sheria Na Haki Human Rights Institute, is a registered non governmental organization operating within the Republic of Kenya. It is a human rights defender focusing on good governance, land rights, and fairness in society, and is authorized to institute proceedings in defence of constitutional rights.
7. The 4 th Petitioner, Portreitz Beach Management Units Network, is a duly registered and gazetted beach management unit mandated to manage, conserve, and protect fishermen landing sites, the environment, and the ecosystem within Port Reitz, Mombasa. It represents local fishermen and communities who rely on the foreshore for livelihood.
8. The 5 th Petitioner, Ujamaa Centre, is a registered non governmental organization with offices in Mombasa. It operates as a human rights watchdog in democracy, land rights, and environmental issues, and brings this Petition in the public interest.
9. The 1 st Respondent, Sahal Ahmed Dahir, is a male adult of sound mind residing and working for gain in Mombasa. He was the original allottee of Title No. CR 70862 situated at Port Reitz Creek, Mombasa, and subsequently transferred the said parcel of land to the 2 nd Respondent.
10. The 2 nd Respondent, Kahia Transporters Limited, is a duly registered company incorporated under the Companies Act, 2015, and carrying on business within the Republic of Kenya. It is the transferee of the suit land having legally from the 1 st Respondent through purchase being of the mode of land acquisition under the provision of Section 7 of the Land Act, No. 6 of 2012.
11. The 3 rd Respondent, Chief Land Registrar – Kenya, is established under the provision of Section 13 of the Land Registration Act, 2012. The office is charged with the duties of land registration and titling in Kenya, including maintaining land registers and records.
12. The 4 th Respondent, Director of Survey of Kenya, is established under Section 3 (1) of the Survey Act, Cap. 299, Laws of Kenya. The office is responsible for land survey, mapping, and preparation of deed plans, among other duties.
13. The 5 th Respondent, the National Land Commission, is a constitutional commission established under the provision of Article 67 ( 1 ), ( 2 ) & ( 3 ) of the Constitution of Kenya, 2010. Primarily, it is mandated to manage public land on behalf of the national and county governments, and to investigate present or historical land injustices.
14. The 6 th Respondent, the Cabinet Secretary, Ministry of Land, Planning and Housing, is responsible for policy formulation, management, and control of land matters in Kenya, including oversight of planning and housing.
15. The 7 th Respondent, Honourable Attorney General, is the Principal Legal Adviser to the Government of Kenya under Article 156 of the Constitution. The office is mandated to promote, protect, and uphold the rule of law and defend public interest.
III. Court directions before the hearing
16. Nonetheless, in the course of time, the Honourable Court fixed the matter for hearing the parties having fully complied on the Provisions of Order 11 of the Civil Procedure Rules 2010.
17. They were directed file written submissions. Eventually, it was set down for delivery of Judgment with the Court giving directions on submissions.
IV. The Petitioner’s case
A. Background facts to the case
18. On or about 20 th May, 1964, a strip of land comprising the coastal foreshore of the Indian Ocean situated at Port Reitz Creek, Mombasa was gazetted as a mangrove forest vide Kenya Legal Notice No. 174. The Petitioners stated that the said Legal Notice remained in force, as it had never been revoked or amended.
19. With the advent of the formation of Beach Management Units (BMUs), which were registered and mandated to manage, conserve, and protect landing sites and their environs, several members of the 4 th Petitioner were duly registered and gazetted. These included:
• Mkupe Beach Management Unit
• Ngare Beach Management Unit
• Kitanga Juu Beach Management Unit
20. The said BMUs carried out their mandate of managing and conserving fishermen’s landing sites, protecting the environment, and safeguarding the ecosystem to ensure the growth of aquatic flora and fauna. Even before their formal registration, members of the 4 th Petitioner had, since time immemorial, used a portion of the strip (later registered as Land Reference 51691/VI/MN, Title No. CR 70862) as a landing site. They managed the land, conserved it, and protected the environment from disturbance and destruction. In June, 2023, members of the 4 th Petitioner discovered encroachment by the 2 nd Respondent on a portion of the strip. Upon further investigation, they established that the land had been illegally alienated and acquired by the 1 st Respondent, who subsequently transferred it through sale to the 2 nd Respondent. Efforts by the 4 th Petitioner to resolve the issue through the County Government of Mombasa and the National Government, specifically the County Executive Committee Member in charge of Land and the Mombasa County Commissioner, proved futile.
21. The Petitioners further established that in the year 2017, the 4 th Respondent, in connivance with the 3 rd Respondent, orchestrated the survey and excision of approximately 90.4 hectares of the protected mangrove forest. A Deed Plan was approved, and the land was registered as private property, available for alienation and acquisition, without adherence to constitutional safeguards on riparian land, and without public participation or consultation of stakeholders, including the 4 th Petitioner. The excised portion formed part of the foreshore, which was reserved for public use, including recreation, and was therefore not available for allocation to private entities. The Petitioners contended that the alienation and allocation of the suit land to the 1 st Respondent, and its subsequent transfer to the 2 nd Respondent, was done in secrecy, without the knowledge of the National Land Commission (NLC), the custodian of public land in Kenya.
22. As a result, local villagers and fishermen, particularly members of the 4 th Petitioner, who had long used the land as a boat landing base, were locked out of their traditional fishing activities. They were rendered jobless and faced threats, intimidation, and violence from the 2 nd Respondent and its agents. The Petitioners emphasized that the right of access to the ocean through the foreshore was a public right secured by a public easement, which could not be extinguished by private encroachment.
23. Finally, the Petitioners asserted that any development or construction on the suit land, apart from its traditional use as a fishermen’s landing site, would destroy aquatic breeding grounds and disturb the ecosystem, with adverse impacts for both present and future generations.
B. Statutory Provisions in respect to Swamp/wetland/riparian land in Kenya
24. “Where a public authority transgresses the law or is about to transgress it, in a way that offends or injures thousands of her majesty's subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced and the courts in their discretion can grant whatever remedy is appropriate” .
25. According to the Petitioners in the Preamble to the Constitution of Kenya, the people of Kenya, including the Petitioners, have aspirations for a Government that is based on the essential values of human rights, equality, freedom, democracy, social justice, and the rule of law.
Land
a. Article 1(3) (c) of the Constitution of Kenya provides that all sovereign power under the Constitution is delegated to state organs, the Judiciary and Commissions which shall perform their functions in accordance with the Constitution. The article mandates the court to exercise its jurisdiction in the realization of the constitutional provisions.
b. Article 2(1) of the Constitution of Kenya affirms the supremacy of the Constitution and provides that the Constitution binds all State Organs at both levels of government.
c. Article 2(4) of the Constitution of Kenya provides among other things that any act or omission in contravention of the Constitution is invalid to the extent of its contravention.
d. By dint of Article 3 of the Constitution of Kenya the Petitioners have an obligation to respect, uphold and defend the constitution. The petitioners are public-spirited individuals, entities and a human rights watchdog who have instituted these proceedings in the interest of the public and their public law duty aforesaid, in defence of the constitution and the observance of the rule of law.
e. Article 22(1) of the Constitution of Kenya accords them rights either on their own or acting in public interest or otherwise to institute court proceedings to enforce any provision of the Constitution notwithstanding any other cause of action available to them under any other law.
f. The right to access justice is guaranteed under Articles 48 of the Constitution and the state is obligated to ensure access to justice for all persons. The Petitioners have instituted these proceedings in the interest of the public and in the promotion of access to justice.
g. Moreover, Articles 258 of the Constitution has empowered every person, to move the Courts, contesting any contravention of the Bill of Rights or the Constitution in general.
h. Moreso, by dint of Article 260 of the Constitution, every person, whether corporate or non-incorporated has unhindered access to justice under the current constitutional dispensation.
i. Rule 4(2)(iii) of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 permits a person acting in the public interest to institute where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened.
j. Furthermore under Article 10 of the Constitution, the national values and principles of governance therein bind all State organs, State officers, public officers and all persons, whenever any of them inter alia enacts, applies or interprets any law; or makes or implements public policy decisions.
k. The Supreme Court in the case of “in the Matter of the Interim Electoral Commission [2011] eKLR” , affirmed the values and principles articulated in the preamble, in Article 10, in Chapter 6 and in various other provisions of the Constitution, which addresses the critical historical, economic, social and cultural realities in Kenya.
l. The principles of good governance and the rule of law not only require that every state organ or officer acts only within the powers conferred on them by and in accordance with the constitution but the principles also require state organs/officers to discharge legal obligations required of them by the Constitution or any other law. Critically the rule of law requires state and public officers to act in accordance with the law.
m. The Petitioners therefore had locus standi, as a public watchdogs, to interrogate the allocation process of public land and to approach this Honourable court to investigate the procedural propriety of the allocation thereof and to any challenge the alienation of the suit land that is unlawful and not procedural.
n. By dint of Article 23(3) of the Constitution of Kenya this Honourable court has authority to uphold and enforce the Constitution. Similarly Article 23 of the Constitution sets out the remedies which a court may grant pursuant to court proceedings brought under article 22 thereof. This Honourable Court therefore has jurisdiction to grant “an appropriate relief”, including a declaration of rights, a conservatory order, an injunction, a declaration of the invalidity of a law, and an order for compensation in terms of Article 23(3) (a-e) of the Constitution.
o. Further under Article 165(3) (b) of the Constitution of Kenya, 2010, this Honourable court is vested with jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of whether anything said to be done under the authority of the Constitution or of any law is consistent with the Constitution.
p. Furthermore, under Article 165 (3) (b) and (d) of the Constitution, this Honourable Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened.
q. By dint of Section 13 of the Environment and Land court Act No.12A of 2012 this Honourable court is vested with jurisdiction to inter-alia hear and determine all the disputes in accordance with Article 162(2)(b) of the Constitution.
r. Meanwhile under Section 13(2)(d) and (e) of the Environment and Land court Act No.12A of 2012 this Honourable court in exercise of its jurisdiction under Article 162(2)(b) of the Constitution has powers to hear and determine disputes inter alia relating to public, private and community land and/or other disputes relating to the environment and land.
s. Further under Section 13(3) of the Environment and Land court Act No.12A of 2012,this Honourable court has jurisdiction to hear and determine applications for redressing a denial or infringement of or threat to, fundamental freedoms relating to clean and healthy environment under Articles 42, 69 and 70 of the Constitution.
t. Section 13(7) of the Environment and Land court Act No.12A of 2012 sets out the remedies which this Honourable court may grant under the Act.
u. In a nutshell by dint of Article 1(c) 4(2) 10, 22, 23, 50(1), 162, 165, 258 and 259 of the constitution as read together with Section 13 of the Environment and Land court Act No.12A of 2012 this Honourable court is vested with jurisdiction inter-alia to hear any question regarding violation of Land Rights, Environmental Rights and issues determining if such act or commission or omission are constitutional and the interpretation of the constitution including question of contradiction between any Law and regulation and the constitution and to protect the constitution from any threats or violation.
Violations of the Constitution and other laws
26. On 28 th August, 2010, the people of Kenya promulgated and bequeathed to themselves the Constitution of Kenya, 2010. Among the radical changes introduced were provisions necessitated by numerous cases of open fraud and irregular allocation of public land to private and politically connected individuals, particularly touching on matters of land and the environment.
27. By virtue of Article 67 , the Constitution established the National Land Commission (NLC), the 5 th Respondent, with functions that included the duty to “initiate investigations, on its own initiative or on a complaint, into present or historical land injustices and recommend appropriate redress.” .
28. Further, Article 68 (c)(v) directed Parliament to enact legislation enabling the review of all grants or dispositions of public land to establish their propriety or legality. Pursuant thereto, Parliament enacted the National Land Commission Act, No. 5 of 2012, which operationalized the NLC. Under Section 14 (1) of the Act, the Commission was empowered, within five years of commencement, to review all grants and dispositions of public land, either on its own motion or upon a complaint, to establish their legality.
29. Articles 67 and 68 (c)(v) of the Constitution, read together with Section 14 of the NLC Act, therefore empowered the 5 th Respondent to review all grants of public land to confirm their propriety. Where land previously classified as public was registered as private, the Commission was entitled to investigate the process of conversion.
30. The Constitution, under Article 62(1)(a), (g), and (i), defined public land to include:
• Land which at the effective date was unalienated government land;
• Government forests, game reserves, water catchment areas, national parks, sanctuaries, and specially protected areas;
• All land between the high and low water marks.
31. The suit land fell squarely within these definitions, being part of a gazetted mangrove forest and foreshore area.
32. Additionally, Section 45 of the Survey Act and Regulation 110 of the Survey (Amendments) Regulations, 1994 provided that where unalienated government land fronting the coast was surveyed for alienation, a strip of not less than 60 metres above the high-water mark had to be reserved for government purposes. The law outrightly forbade the conferment of any right to the foreshore by conveyance, lease, or license.
33. The suit land, lying between the high and low tide water marks, was excised from the foreshore—land reserved for public use, including recreation—and was therefore not available for allocation to private entities. The 3 rd and 4 th Respondents had no authority under the provision of Article 62 of the Constitution or Regulation 110 of the Survey Regulations, 1994 to alienate it.
34. The Petitioners further averred that the land was reserved for government purposes and could only have been alienated under the direction of the Minister responsible for Survey of Kenya. In the absence of such direction, the grant and encroachment were patently unlawful and void.
35. The alienation and allotment of the suit land to the 1st Respondent constituted a grave violation of the national values and principles of governance under the provision of Article 10, which demanded integrity, transparency, and accountability. It also violated the rules of natural justice under Article 47, which guaranteed every person the right to administrative action that was expeditious, efficient, lawful, reasonable, and procedurally fair. The members of the 4 th Petitioner were denied fair administrative action when the land was alienated without consultation or public participation.
36. Moreover, the suit land remained a protected forest area and a landing site for fishermen, and was therefore not available for alienation. Neither the 3 rd nor the 4 th Respondents had statutory powers to set apart, alienate, or allocate it. The alienation and allotment of the suit land to the 1 st Respondent was illegal, unconstitutional and contrary to Section 45 of the Survey of Kenya Act, Cap 299, Laws of Kenya and Regulation 110 (1) of The Survey Regulations 1994.
37. The 3 rd and 4 th Respondents herein acted illegally by allocating the suit land to the 1 st Respondent, which land he had curved out of the foreshore contrary Regulation 110 (1) of the Survey Regulations of 1994. Without following the constitutional safeguards on riparian Land and prohibition on its acquisition and alienation on by any person whatsoever, the 3 rd and 4 th Respondents in contravention of Section 45 of the survey Act and Regulation 110 under 1994 survey regulation caused the same to survey, approved a deed plan and had the same registered as private Land, and making it available for alienation and acquisition for private use.
38. Meanwhile, whereas right to property is protected under Article 40 of the Constitution, the said protection of the right to property does not extend to illegally acquired property. In the circumstances, the Constitution of Kenya, 2010, while continuing to protect the right to lawfully acquired property, expressly provided in Article 40(6) that the constitutional protection of the right to property did not extend to protection of illegally acquired property.
39. The Petitioner averred that the people of the Republic of Kenya did not enact the Constitution in vain and the Constitution is not an abstract and hollow document hence this Honourable court should not countenance the fragrant breach of the Constitution.
40. The Petitioner further stated that the parent ministry under which the 3 rd and 4 th Respondents fall, had failed to carry on its mandate in making sound Land policies and protecting the suit Land as provided for under constitution and statute Law and as a result has enabled the suit Land to illegally and wrongly alienated and allocated to the 1 st Respondent land subsequently sold and transferred to the 2 nd Respondent.
C. Prayers
41. The Petitioners urged the Court to determine the following questions:
a) Whether the suit Land as delineated in Land Survey Plan 411154 being Land Reference 51691/VI/MN and registered as title CR 70862 falls within the high water and low water mark of Indian Ocean as per the provision of Article 62 (1) (I) and thus riparian or offshore Land?
b) Whether the suit Land form part and parcel of mangrove as per legal notice no.174of 20th May 1964 and that the same has been fishermen Landing sites and breeding site for both aquatic flora and fauna?
c) Whether the suit parcel of Land was available for alienation and private acquisition as of the year 2017?
d) Whether the procedure for conversion of public Land to private was adhered to and follow and acquisition of the suit land was above board?
e) Whether the public participation on the stakeholder was carried out especially on the people to be impacted by the changes on the entire ecosystem.
f) Whether the Rights of the private owner supersedes the public interest and the common good which accrues from public use of the subject parcel of Land.
g) Whether the principles set on alienation and acquisition of public Land (riparian Land) as set out by the supreme court of Kenya in the case of “Dina Development – Versus - County government and 5 others” do apply.
h) Whether the constitutional protection of the right to property provided in Article 40 (6) that the constitutional extends to the protection of illegally acquired property
i) Whether the resultant Certificate of Title from the impugned process and procedure is valid and can confer ownership and the same is indefeasible
42. The Petitioners prayed for the following reliefs:-
a. A declaration that all that parcel of Land comprising Land Reference NO.51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa is riparian Land forming part of the beach property within the high and lower water marks of the Indian Ocean and its alienation and acquisition by the 1s Respondent and subsequent by 2 nd Respondent was from inception was unconstitutional, illegal, unlawful and thereby null and void ab initio.
b. A declaration that the 3 rd and 4 th Respondents acted illegally by allocating all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa to the 1 st Respondent, which land he had partly curved out of the foreshore contrary to Article 62 of the Constitution and Regulation 110 of the Survey (Amendments) Regulations 1994.
c. A declaration that the 3 rd and 4 th Respondents abused their office and acted illegally and unconstitutionally in alienating all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa which land he had partly curved out of the foreshore and gazetted forest land contrary to Article 62 of the Constitution and Regulation 110 of the Survey (Amendments) Regulations 1994.
d. A declaration that the 4 th Respondent abused its office and acted illegally and unconstitutionally in extending the boundary of all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa to cover a portion of the offshore and gazette forest land;
e. A declaration that the Respondents acts of omission and commission were violation of the constitution and the Law in particular Article 62 of the Constitution and regulation 110 of the Survey (Amendments) Regulations 1994.
f. Declaration issued that the actions of the 3 rd Respondent violated the 4 th Petitioner’s and its members’ right to fair administrative action as guaranteed by Article 47 of the Constitution.
g. A declaration that the alienation of alI that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa by the 3rd and 4th Respondents to the 1 st Respondent and a portion of LR No MN/1/5901 that encroaches on the reserve land by the 2 nd Respondent was done in breach of the rules of natural justice, procedural and administrative fairness and national values and principles of governance.
h. A declaration that the alienation by the 3 rd and 4 th Respondents to the 1 st Respondent of all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa which is the 4 th Petitioner’s Landing site and access to the Indian Ocean beach violated the 4 th petitioners’ right to equal access to public property.
i. A declaration that the extension by the 4 th Respondent of the boundary of all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa to cover a portion of the reserve land which is the 4 th Petitioner’s access to the Indian Ocean beach was a violation of the appellants’ right to equal access to public property.
j. A declaration that the alienation of a reserve land by the 4 th Respondent to the 1 st Respondent and the subsequent sell and transfer to the 2 nd Respondent for private use was a violation of the 4 th Petitioner's right to clean and healthy environment and equal access to public property.
k. An order of injunction to restrain the 2 nd Respondent, its directors, owners, servants and/or agents from selling, transferring, mortgaging, charging, leasing, developing, putting up a wall or fence or blockage of any nature on and from having any other or further dealing with all that parcel of Land comprising Land Reference NO.51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa.
l. A permanent injunction to restrain the 1 st and 2 nd Respondents, their officers, servants and/ or agents from blocking the 4 th petitioner’s access to and view of the Indian Ocean through all that parcel of Land comprising Land Reference NO.51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and LR No MN/I/5901 in any manner whatsoever.
m. A mandatory injunction compelling the 1 st and 2 nd Respondents to demolish a stone wall and any other structure that they have constructed on all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and LR No MN/I/5901, Mombasa;
n. An order of Judicial Review in the nature of certiorari to bring into this court and quash the decision of the 3 rd and 4 th Respondents to alienate and allocate all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and LR No MN/I/5901, Mombasa to the 1 st Respondent;
o. An order to Judicial Review in the nature of certiorari to
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