The Court of Appeal on Friday, June 11, 2021, declared a title deed allocated to former President Daniel Arap Moi to have been acquired in an illegal and unprocedural manner.
The Environment and Land Court (ELC) ruled that the beach plot was not available for alienation, rather for public use. The title deed is currently held by Dina Management Limited.
Justices Daniel Musinga, Mohamed Warsame and Agnes Murgor ruled that the late former Head of State did not follow the proper channels in the acquisition of the property.
“Having irregularly obtained allocation of the property, Former President Daniel Arap Moi had no legal interest therein, which he could pass to M/s. Bawazir and Co. (1993), the latter thus had no valid legal interest that in turn could pass to the appellant (Dina Management Ltd),” the judges said.
The three-judge bench ruled that the plot is public property and ordered that it be surrendered back to the County Government of Mombasa.
They noted that the land was public property, prior to its allocation to late President Moi.
“There was thus a road leading to the beach, through the open space that was the land and the effect of the allocation of the property was thus to block existing access to the sea from the road, through the open space (the land),” they noted.
The judges determined that Dina Management Ltd did not follow the proper procedures in the acquisition of the land, ruling that the deed could not qualify for indefeasibility.
Mombasa County had initially moved to bring down a wall erected by the company around the property. The Appellate court ruled that County did not break any laws in destroying the wall.
The judges stated that property be opened and members of the public are allowed to enjoy themselves at the land, as it was meant.
“It was not possible to any person or entity to alienate it for private use, in our view, the moment a property is reserved for public use, it remains public utility land incapable of giving rise to a private proprietary interest capable of being protected by a court of law,” the judges ruled.
They stated that the land was allocated to the public and there was no notice issued to inform the public that the property would later be handed over to private developers.
“Any subsequent acquisition, sale or transfer would be contrary and in conflict with the original purpose (public use) therefore void and does not give rise to a right capable of protection by a court of law," they ruled.
Dina Management Ltd had told ELC that it bought the land from Bawazir and Company (1993) Ltd.
In 2017, the government raided the property, flattened the walls and created an access road to the beach.
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