Moi’s beach property title deed revoked

The Supreme Court has revoked the title deed of a 1.2-acre public land allocated to the late President Daniel Toroitich arap Moi at Nyali beach in Mombasa 34 years ago.

In a judgment, the judges ruled that the title issued to the former President was illegal and irregular since the property was public open offshore space reserved for a road and not private land.

Moi had been allocated the land on November 23,1989 by former Commissioner of Lands Wilson Gachanja.

While declaring the acquisition of the land as unprocedural, the court noted that there was no documentation to support the allocation.

The land was adjacent to the Indian Ocean in Nyali and so it was lucrative and suitable for hotel and hospitality business.

A title was subsequently processed, issued to Moi and the plot was converted to private property.

In June 1996, Moi transferred the land to Bawazir & Co. (1993) Ltd. Ten years later, the company sold the property to Dina Management Limited in October 2006 at a price of Sh18 million.

Upon acquiring the land, Dina immediately commenced development of the property by constructing a perimeter wall facing the Nyali beach in Mombasa county.

During the transaction, the firm conducted due diligence and the Ministry of Lands confirmed the validity of the title stating that “the above plot is the genuine plot”.

But in September 2017, the County Government of Mombasa, without prior notice forcefully entered the property and demolished the entire perimeter wall facing the Nyali beachfront and flattened the whole property to be at the same level as the beach.

The company, aggrieved by the move, lodged the six-year-old court battle that started at the Environment and Lands Court Mombasa in 2017 and has now ended at the Supreme Court Nairobi.

Illegally allocated

 The Supreme Court however dismissed the appeal by Dina claiming the lawsuit property is public land that was unlawfully issued to the late President.

The bench led by Deputy Chief Justice Philomena Mwilu said Moi could not pass or transfer the title to a third party as the property was irregularly and illegally allocated to him.

“The suit property was at the time designated as an open space. Having been designated as such, it was rendered a public utility and could not be described as unalienated public land as urged by Dina. It was therefore not available for alienation to H. E. Daniel T Arap Moi or for further alienation,” the judges ruled.

Justices Mwilu, Smokin Wanjala, Njoki Ndung’u, Isaac Lenaola and William Ouko held that though Article 40 of the Constitution entitles every person to the right to property subject to the limitations set out in the said provision, that right cannot be extended to cover or protect any property that has been unlawfully acquired.

“Having found that the first registered owner (Moi) did not acquire title regularly, the ownership of the suit property by Dina Management Ltd thereafter cannot therefore be protected under Article 40 of the Constitution. The root of the title having been challenged, Dina could not benefit from the doctrine of bona fide purchaser,” the judges stated.

“We therefore agree with the appellate court that the Dina’s title is not protected under Article 40 of the Constitution and the land automatically vests to the County government of Mombasa pursuant to Article 62(2) of the Constitution. We hasten to add that, the suit property, by its very nature being a beach property, was always bound to be attractive and lucrative. Dina ought to have been more cautious in undertaking its due diligence,” the judges added.

The Supreme Court further found that there were no documents to support allocation of the land to Moi.

These were the letter of application by Moi addressed to the Commissioner of Lands seeking to be allocated the suit land and a Part Development Plan (PDP) showing the suit property in relation to the neighbouring parcels of land.

The judges upheld the Court of Appeal‘s finding that alienation of the open space to Moi was unprocedural to the extent of blocking existing access to the sea.