Court orders recovery of Diani Beach public access land

The Environment and Land Court in Kwale has ordered the recovery of a parcel reserved for public access to Diani Beach after finding that its allocation to a private company was fraudulent, unlawful and unconstitutional.

Justice Lucas Naikuni ordered the cancellation of the lease and Certificate of Lease for land reference number Kwale/Diani Beach Block/1072 and directed the rectification of the land register to restore the property to the Government.

"A declaration that the lease and certificate of lease are unconstitutional, fraudulent, unlawful, and void ab initio," ruled Judge Naikuni.

According to court documents, the parcel is a strip of land stretching from the Ukunda-Diani Road to the Indian Ocean beach and provides public access to the shoreline.

The judgment followed a suit filed by the Ethics and Anti-Corruption Commission challenging the private acquisition of the land.

The court found that the lease and Certificate of Lease issued to the private entity were fraudulent and that the defendants’ occupation of the property amounted to trespass against public land.

"A permanent injunction restraining the Defendants (private entity) from alienating, transferring, charging, leasing, subdividing, or otherwise dealing with the property," the judge further directed.

Justice Naikuni also awarded Sh10 million in general damages to the State for trespass, with interest at court rates.

The court further found public officials involved in the allocation personally liable for the tort of misfeasance (wrongful or unlawful conduct by a public official in the exercise of their office) in public office.

The officials included the District Physical Planning Officer, the then Commissioners of Lands and the Land Registrar, who were named as defendants in the case.

The judge said the officials had wilfully facilitated the private entity to illegally and fraudulently acquire the land.

“I cannot agree more with the Learned Counsel for the Plaintiff (EACC) to the effect that they as Civil Servants were guilty of acting unprofessionally, in bad faith, ultra vires and in misconduct in public office. They breached ‘the Tort of Misfeasance,” the judge stated.

According to the EACC, its investigations established that the land had been allocated to a private company through a 99-year lease issued in 1994.

The ruling was among two judgments announced by EACC involving recovery of public property at the Coast.

In a separate case before the Environment and Land Court in Mombasa, the court ordered the recovery of a government house in Kizingo, Mombasa Island, after finding that it had been irregularly allocated to a former Senior Resident Magistrate.

The court found that the property was public land reserved for government housing and that no lawful process had been undertaken to change its use or surrender it for private allocation.

“Based on this cumulative evidence, the Court finds that the suit property is indeed public land reserved for government housing and civil servants’ residential use, and that no lawful process was ever undertaken to change its user or surrender it for private allocation,” Justice Naikuni ruled.

The court declared the lease and Certificate of Lease for the Mombasa property fraudulently and corruptly obtained and ordered their cancellation.

It also permanently restrained the defendants from dealing with the property.

The rulings resulted in damages awards for trespass and findings concerning the conduct of public officials involved in the disputed allocations.