[2016] KEELC 547 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

ELC CIVIL CASE NO.35 OF 2016

CHESUBWA LIMITED...................................................................PLAINTIFF

=VERSUS=

1. YEW INVESTMENTS LTDT/A DORADO COTTAGES MLD

2. COUNTY GOVERNMENT OF KILIFI................................DEFENDANTS

R U L I N G

1. In the Application dated 20th April, 2016, the Plaintiff is seeking for the following orders:

(a) THAT there be a temporary prohibitory injunction restraining the 1st Defendant by themselves, their agents, servants, and/or employees from occupying, using, managing and/or operating all those illegal structures and developments built along the beach and shoreline next to adjacent, adjoining, and/or abutting the Plaintiff's Plot No.1356 Malindi and from further occupying using, managing and/or operating the erected illegal structures over the Plaintiff's right of easement over 1356 Malindi pending the hearing of this application inter partes and thereafter pending the hearing and final determination of this suit.

(b) THAT there be an order of mandatory injunction compelling the 1st Defendant to demolish, destroy, remove and/or take away all those illegal and unauthorised developments on the shoreline and beach next to adjacent, adjoining and/or abutting the Plaintiff's Plot No.1356 Malindi and those built and/or developed on the Plaintiff's property and easement of a right of way over 1356 Malindi and/or alternatively the 2nd Defendant be ordered to demolish the same at the cost of the 1st Defendant and/or that the 2nd Defendant do demolish and/or remove the same pursuant to its powers under the County Government Act.

(c) THAT this Honourable court be pleased to make such other or further orders to preserve the suit premises as it may deem it fit and just to grant.

The Plaintiff's/Applicant's case:

2. The Plaintiff's Director has deponed that the Plaintiff is the registered proprietor of plot number 1356 Malindi as well as its right of way and access; that the Plaintiff's; plot abutts the beach and shoreline of the Indian Ocean and that the Plaintiff has a right of way over the shoreline and the beach.

3. It is the Plaintiff's deposition that in the year 2015, the 1st Defendant commenced constructing an illegal cottage on plot number 1355 and that the said construction had far reaching consequences on the Plaintiff's proprietorship rights and easement to plot No.1356.

4. According to the Plaintiff, since the 1st Defendant does not have direct access to the beach for its guests, the 1st Defendant has proceeded to put sun beds and bandas on the shoreline of the beach denying the Plaintiff access and right of easement to the beach and shoreline.

5. The Plaintiff's director has deponed that the 1st Defendant has proceeded to break the Plaintiff's fence and has erected illegal bandas and has also dumped waste, plastic materials and other products on plot No.1356 on the beach and on the shoreline; that the Plaintiff is exclusively entitled to the riparian and contiguous beach next to, adjacent, abutting or adjoining plot No.1356 Malindi and that the illegal sheds and developments erected by the 1st Defendant are an eye sore and have compromised the Plaintiff's Security.

1st Defendant's/Respondent's case:

6. The 1st Defendant's Manager deponed that the 1st Defendant is the owner of plot number 1355 and the public beach administered by the 2nd Defendant; that the renovations of buildings on plot number 1355 were approved by the relevant authorities and that while it is true that Plot No.1355 does not abutt the ocean, the 2nd Defendant created an access road between plot number 1356 and 1357 which the general public, including the 1st Defendant's guests use.

7. The 1st Defendant's Manager deponed that the beach area and shoreline next to plot numbers 1357 and 1356 are public utilites accessible to the general public as a right; that the Plaintiff's property is surrounded by a perimeter wall which is intact and that the alleged easement is a public road used by the general public.

The 2nd Respondent's case:

8. The 2nd Respondent's Director of Legal Services deponed that the alleged waste are floating marine debris; that there are no illegal developments on the beach or shoreline next to plot number 1356 and that the said beach is a public utility accessible to the general public.

9. According to the 2nd Respondent, the alleged easement is a designated public access road to the beach and that the Plaintiff wants to arm-twist the 2nd Defendant so as to achieve ulterior motives.

10. It is the 2nd Respondent's case that the illegal structures complained of by the Plaintiff are temporary mobile shops placed by members of the public where they sell African jewelery and curvings to tourists.

Further Affidavit:-

11. In his Further Affidavit, the Plaintiff's director deponed that the 1st Respondent has continued to place sun beds, serving tourist with drinks and food , erecting bandas and also dumping of waste on the beach shore.

Submissions:

12. The Plaintiff's advocate submitted that as the registered proprietor of plot number 1356 Malindi, he has the right over an easement along the beach shoreline and that it is entitled exclusively to the reparian and contagious beach abutting his land.

13. Counsel submitted that the structures on the shoreline abutting his land have led the Plaintiff to suffer irreparably; that the encroachment on plot number 1356 by the 1st Respondent has made the area unsecure and that the Application should be allowed.

14. The Defendant's counsel submitted that the beach and the shoreline are public lands set aside for public use; that the Plaintiff is not entitled to the exclusive use of the beach and that the 1st Defendant has not erected any structure on the beach.

Analysis and findings:

15. It is not in dispute that the Plaintiff is the registered proprietor of plot number 1356.

16. It is also not in dispute that the 1st Respondent is the registered proprietor of plot number 1355 and that adjacent to the two plots, there is an access road which connects the two plots to the Indian Ocean Beach (“the Beach”).

17. The Plaintiff is seeking for injunction restraining the 1st Defendant from putting up the sun beds, dumping wastes and other materials on the beach and erecting unauthorised and illegal developments along the beach.

18. Although the 1st Defendant has denied that it has accumulated any waste along the beach and shoreline next to plot 1356 Malindi, it has admitted that it has only put “portable sun beds used by its guests at the public beach”.

19. The Plaintiff's Application is premised on the ground that it is entitled to the exclusive use of an easement as well as the riparian contiguous rights for the beach and shoreline adjacent to plot number 1356.

20. The conveyance attached on the Plaintiff's supporting affidavit in respect to plot 1356 does not show the extent of the boundaries of plot 1356. this court cannot therefore ascertain if indeed plot number 1356 abuts the ocean or not.

21. Even if the Plaintiff's plot abuts the ocean, and in view of the fact that the said plot was registered pursuant to the provisions of the Land Titles Act and the Government Lands Act, its boundaries are “ager limitatus” as opposed to “agar non limitatus”In the case of Tukero Ole Kina & Another Vs Tahir Sheikh Said & 5 Others (2015) eKLR, this court held as follows:-

“The totality of the above provisions of the law shows that in Kenya, the law requires that all parcels of land registered under the Land Title Act and the Registration of Titles Act are ager limitatus as opposed to ager non limitatus......The Land Titles Act, under which plot number 785 was registered, and the Registration of Titles Act only allows the registration of plots that are ager limitatus, that is a plot land enclosed on all side by artificial boundaries and demarcated as such.”

22. In that case, the court held that the construction at Article 6 of the Constitution 62(1)(e) of the Constitution has defined public land to include all land between the high and low water marks. It is therefore not true that because the Plaintiff's parcel of land abuts the shoreline, then it has the exclusive right to use the said beach and shoreline.

23. However, the suit property being public land, any member of the public including the Plaintiff, can move the court seeking for injunctive orders if he alleges that the same has been or is being illegally appropriated or that the usage of the same is infringing on his right to a clean and healthy environment.

24. The 1st Defendant has admitted that he has put on a public beach portable sun beds, not for the public use but for his guests. That in my view, amounts to appropriation of the public beach.

25. Indeed, there are many instances in this country where private entities have appropriated public beaches by putting up structures, chairs, tables and sun beds for their guests to the exclusion of the general public.

26. The encroachment on such public beaches by these private entrepreneurs at the expense of the members of public is an infringement of the right of the members of public to utilise properties that the Constitution recognises as belonging to the public. Such a practice cannot be allowed by this court to continue. All land between the high water mark and the low water mark belongs to the public and should be used for public use.

27. It is on that ground that I allow the Plaintiff's Application dated 26th February, 2016 in the following terms:-

(a) An injunction be and is hereby issued restraining the 1st Defendant by itself, agents, servants and or employees from occupying, using, managing or operating all those illegal sun beds, structures and developments built along the beach and shoreline next to, adjacent, adjoining and or abutting plot number 1356 or on any other site within the High Water Mark and the Low Water Mark along the Indian Ocean pending the hearing and final determination of this suit.

(b) The 1st Defendant to pay the costs of the Application.

Dated, signed and delivered in Malindi this 22ndday of September, 2016.

O. A. Angote

Judge