Court removes restrictions on beach plot ownership

Anyone willing to buy a beach plot along the Kenyan coast can now do so without a presidential consent or approval of the provincial administration.

That is the import of a Court of Appeal ruling Thursday that a verbal decree issued by President Jomo Kenyatta 40 years ago was null and void, thus opening first and second row beach plots to willing-buyer willing-seller policy.

“Neither the Registered Land Act, Registration of Titles Act nor the Land Titles Act, now all repealed, nor even the current land law regime has such provisions. Nor is there any statute or legal basis for requiring such consent,” judges Hanna Okwengu, Milton Makhandia and Fatuma Sichale declared.

Eliud Mahihu, the then Coast Provincial Commissioner, was asked to implement the order that barred foreigners from owning beach plots. He invoked “state security” as the main reason.

So fervent was Mahihu and then Lands Commissioner, Jonathan Njenga, that it was assumed that Mahihu’s approval – as required under the verbal presidential order - was a requirement in law.

On Thursday, the Appeal’s court sitting in Mombasa declared Kenyatta’s decree as unlawful, non-existent and opaque, opening the ownership of beach plots to foreign interests and others discriminated under the order.

The judges were ruling in a petition that had been filed by former Mombasa Law Society of Kenya officials, led by chairman Mohammed Balala, against the Attorney- General, Commissioner of Lands, Mombasa chief lands registrar, Coast registrar of titles and registrars of land in Kilifi, Lamu and Kwale counties.

In the High Court, Justice Mary Kasango had noted that the decree was an appendage of yesteryears, when presidential decrees were equated to law, and it therefore had no place in the Kenya since it was discriminative.

As such, the judge prohibited the lands officials from demanding a presidential consent as a pre- condition to register transfers of land or lease situated on the first and second row along the beach.

She declared the same as illegal and discriminative practice against owners of the plots and was therefore null and void.

In the appeal, the A-G had stated that the President enjoys some discretionary power by virtue of his executive authority. But the three appellate said Kenyatta’s order amounted to a roadside declaration.

Shortly after Kenyatta’s death in 1978, Mr Mahihu wrote to the lands commissioner seeking to have President Moi gazette the requirement.

But this was not done as Mahihu was soon replaced by Luka Daudi Galgalo, a lukewarm administrator with little interests in beach plots politics.

The requirement continued to be enforced as it gave the elite in the Nyayo era a chance to own choice land at the Coast.

The 44 year-old requirement has largely been blamed for the skewed allocation of beach plots, leading to misgivings about ownership of prime land straddling the coastline.

The court observed that although the decree was being rigorously enforced, it had never been anchored in any legal regime and cannot be traced to any legal grounding for evaluation and rationale.

Under the decree, the Coast provincial commissioner was mandated to approve all applications for the purchase of first and second row beach plots before the Commissioner of Lands and President Kenyatta appended their signatures.

The directive was communicated to all senior people in the Lands ministry, turning Mr. Mahihu into a powerful figure in 1970s and early 80s.

If the consent was not obtained, the lands officials would reject an application to transfer the plots and when challenged, they would explain that the presidential consent was required for security reasons and was in the national interest.

The AG had asked the respondents to show the court the decree. But the Judges posed: “Being a roadside declaration and having not been anchored in any law, where would the paper that the appellants are demanding of the respondents be found?”

They said that there was nothing in Article 131 of the Constitution that would warrant issuance of such a directive and if anything the President is obligated to ensure the protection of human rights and fundamental freedom and rule of law.

“How can we say there is rule of law when we clothe the President with power not anchored in law and which is exercised in an opaque manner?

How then will the President be held into account if he was to exercise such power oppressively in a cavalier manner or capriciously or whimsically?” The judges asked.

The ruling now gives landowners the freedom to conduct transactions on their property without the tedious and lengthy land procedures experienced in lands offices.

Additional reporting by John Kamau