It’s been most exciting witnessing some of Kenya’s land reform aspirations come true.
During the land policy formulation, stakeholders had pushed for the establishment of special land courts, with similar status as the high courts, to determine land disputes.
Luckily, the proposal carried the day and was anchored in the 2010 Constitution.
It was operationalised through the environment and land courts, which have been gradually claiming their place in Kenya’s jurisprudence.
They’ve originated some brilliant rulings. One gets the impression that due to their special nature, and their ability to undertake focused research in this complex area, the courts have raised the bar and enriched jurisprudence on land and property.
The ruling on Supreme Court Petition No 8 of 2021, in which Dina Management Limited had appealed the decision of the Court of Appeal in Civil Appeal No 150 of 2021, should receive the close attention of land professionals, bankers and investors.
The Court of Appeal affirmed the judgment of the Environment and Land Court on consolidated ELC Petitions No 8 and 12 of 2017.
The legal nomenclature notwithstanding, the ruling dwelt on the process of privatising public land, at the time referred to as government land.
Kenya’s second President Daniel arap Moi obtained the title of the subject Nyali beach plot in 1989. He later sold it to Bawazir & Company (1993), who thereafter sold the same to Dina Management Limited.
At the time President Moi obtained the plot, the pertinent process involved applying to the Commissioner of Lands for allocation, the preparation of a part development plan (PDP) for the plot of interest, issuance of an allotment letter, the undertaking of a cadastral survey followed by the registration of title to the land.
Two grounds that informed the judicial decision on the matter drew my interest. One, President Moi’s title was deemed irregularly obtained and therefore defeasible, since his plot was derived from an open space through which existed an access road to the beach.
Secondly, the allocation was considered irregular since there was no application letter to the Commissioner of Lands on record, nor was there a PDP to guide the cadastral survey.
Therefore, Dina Management Limited couldn’t benefit from the doctrine of bona fide purchaser.
Consequently, the court ruled that the title held by Dina Management Limited wasn’t protected under the Constitution and hence the suit land automatically vests in the Mombasa county government.
While legally sound, the ruling has vast implications for investments. Many plots derived from government land in the 1980s and 1990s in Kenya’s major urban areas, most of them now developed, may have suffered similar process gaps.
Based on this precedent, their titles, some of which have been used as collateral to loans, could be similarly challenged and cancelled.
PAYE Tax Calculator
Note: The results are not exact but very close to the actual.
