https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4712

**REPUBL****IC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **PETITION NO. E015 OF 2023** **IN THE MATTER OF: ARTICLES 1, 2, 3, 10, 22, 60, 61, 62, 67, 69, 159, 162 AND 258 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF: SECTIONS 9, 10, 11, 12A, 19 OF THE LAND ACT NO. 5 OF 2012** **AND** **IN THE MATTER OF: SECTION 45 OF THE SURVEY ACT AND REGULATION 110 OF THE SURVEY REGULATIONS 1994** **AND** **IN THE MATTER OF: ACQUSITION OF PUBLIC LAND FORMING PART OF THE BEACH PROPERTY WITHIN THE HIGH AND LOW WATER MARKS OF THE INDIAN OCEAN (WHICH IS RIPARIAN LAND) BY SAHAL AHMED DAHIR AND SUBSEQUENT TRANSFER TO KAHIA TRANSPORTERS LIMITED** **AND** **IN THE MATTER OF: ILLEGAL ALIENATION, ACQUISITION AND ENCROACHMENT OF PUBLIC LAND BY SAHAL AHMED DAHIR AND SUBSEQUENT TRANSFER TO KAHIA TRANSPORTERS LIMITED** **AND** **IN THE MATTER OF: THREATENED VIOLATION OF ARTICLES 60, 61, 62, 67 AND 69 OF THE CONSTITUTION OF KENYA 2010 AND THE PROVISIONS OF SECTION 45 OF THE SURVEY ACT AND REGULATION 110 OF THE SURVEY REGULATIONS 1994** **BETWEEN** **JULIUS OGOGOH, COMMISSIONER FOR** **HUMAN RIGHTS AND JUSTICE…………………..…..1ST PETITIONER** **ACTIVE ENVIRONMENTAL TEAM…………………..2ND PETITIONER** **SHERIA NA HAKI HUMAN RIGHTS INSTITUTE….3RD PETITIONER** **PORTREITZ BEACH** **MANAGEMENT UNITS NETWORK……………………4TH PETITIONER** **UJAMAA CENTRE………………………………..………5TH PETITIONER** **-VERSUS-** **SAHAL AHMED DAHIR ………………….….……..…1ST RESPONDENT** **KAHIA TRANSPORTERS LIMITED……..………….2ND RESPONDENT** **CHIEF LAND REGISTRAR………….…..……………3RD RESPONDENT** **DIRECTOR OF SURVEY OF KENYA……….……..4TH RESPONDENT** **THE NATIONAL LAND COMMISSION……..………5TH RESPONDENT** **CABINET SECRETARY,** **MINISTRY OF LANDS, PLANNING** **AND HOUSING…..............................................6TH RESPONDENT** **THE HONOURABLE ATTORNEY GENERAL……..7TH RESPONDENT** **AND** **KENYA FOREST SERVICES……………..……...INTERESTED PARTY** **JUDGMENT** 1. **Preliminaries** 2. The Judgment of this Court pertains to the filed Constitutional Petition dated 15th June, 2023 by *Julius Ogogoh, Commissioner for Human Rights and Justice, Active Environmental Team, Sheria Na Haki Human Rights Institute, Portreitz Beach Management Units Network, and Ujamaa Centre*, the Petitioners herein, against *Sahal Ahmed Dahir, Kahia Transporters Limited, the Chief Land Registrar – Kenya, the Director of Survey of Kenya, the National Land Commission, the Cabinet Secretary Ministry of Land, Planning and Housing, and the Honourable Attorney General*, the Respondents herein. The Petition was brought under the provisions of Articles 1(3)(c), 2(1)(2)(4), 3, 10, 22, 23, 40(6), 42, 47, 48, 60, 61, 62, 67, 69, 70, 73, 165, 258 and 260 of the Constitution of Kenya, 2010, together with Section 45 of the Survey Act, Regulation 110 of the Survey Regulations, 1994, and Section 13 of the Environment and Land Court Act No. 12A of 2012. The Petition was accompanied by affidavits in support and annexures thereto. 3. Upon service of the Petition, the Respondents while opposing the Petition filed the following pleadings accordingly. These were:- 4. the 1st and 2nd Respondents entered appearance and filed responses opposing the Petition. 5. The 3rd and 4th Respondents, namely the Chief Land Registrar and the Director of Survey of Kenya, filed Replying Affidavits defending the survey and registration process. 6. The 5th Respondent, the National Land Commission, filed a response asserting its constitutional mandate over public land management. 7. The 6th Respondent, the Cabinet Secretary Ministry of Land, Planning and Housing; and 8. the 7th Respondent, the Honourable Attorney General, filed Grounds of Opposition and affidavits. 9. The Petitioners thereafter filed supplementary affidavits in further response to the replying affidavits of the Respondents. 10. **Description of Parties** 11. The 1st Petitioner, Julius Ogogoh, is a law‑abiding citizen of Kenya, a public‑spirited individual, and a human rights defender. He is the Executive Director of the Commission for Human Rights and Justice (CHRJ), an organization established to promote democratic governance, economic and social development, and prosperity. He brings this Petition both in his personal capacity and on behalf of the public pursuant to Articles 22, 70, and 258 of the Constitution of Kenya, 2010. 12. The 2nd Petitioner, Active Environmental Team, is a duly registered environmental watchdog mandated to protect, conserve, and manage wetlands, riparian areas, and ecosystems. It acts in the public interest to preserve aquatic flora and fauna and to safeguard the environment for present and future generations. 13. The 3rd Petitioner, Sheria Na Haki Human Rights Institute, is a registered non‑governmental organization operating within the Republic of Kenya. It is a human rights defender focusing on good governance, land rights, and fairness in society, and is authorized to institute proceedings in defence of constitutional rights. 14. The 4th Petitioner, Portreitz Beach Management Units Network, is a duly registered and gazetted beach management unit mandated to manage, conserve, and protect fishermen landing sites, the environment, and the ecosystem within Port Reitz, Mombasa. It represents local fishermen and communities who rely on the foreshore for livelihood. 15. The 5th Petitioner, Ujamaa Centre, is a registered non‑governmental organization with offices in Mombasa. It operates as a human rights watchdog in democracy, land rights, and environmental issues, and brings this Petition in the public interest. 16. The 1st Respondent, Sahal Ahmed Dahir, is a male adult of sound mind residing and working for gain in Mombasa. He was the original allottee of Title No. CR 70862 situated at Port Reitz Creek, Mombasa, and subsequently transferred the said parcel of land to the 2nd Respondent. 17. The 2nd Respondent, Kahia Transporters Limited, is a duly registered company incorporated under the Companies Act, 2015, and carrying on business within the Republic of Kenya. It is the transferee of the suit land having legally from the 1st Respondent through purchase being of the mode of land acquisition under the provision of Section 7 of the Land Act, No. 6 of 2012. 18. The 3rd Respondent, Chief Land Registrar – Kenya, is established under the provision of Section 13 of the Land Registration Act, 2012. The office is charged with the duties of land registration and titling in Kenya, including maintaining land registers and records. 19. The 4th Respondent, Director of Survey of Kenya, is established under Section 3 (1) of the Survey Act, Cap. 299, Laws of Kenya. The office is responsible for land survey, mapping, and preparation of deed plans, among other duties. 20. The 5th Respondent, the National Land Commission, is a constitutional commission established under the provision of Article 67 ( 1 ), ( 2 ) & ( 3 ) of the Constitution of Kenya, 2010. Primarily, it is mandated to manage public land on behalf of the national and county governments, and to investigate present or historical land injustices. 21. The 6th Respondent, the Cabinet Secretary, Ministry of Land, Planning and Housing, is responsible for policy formulation, management, and control of land matters in Kenya, including oversight of planning and housing. 22. The 7th Respondent, Honourable Attorney General, is the Principal Legal Adviser to the Government of Kenya under Article 156 of the Constitution. The office is mandated to promote, protect, and uphold the rule of law and defend public interest. 23. **Court directions before the hearing** 24. Nonetheless, in the course of time, the Honourable Court fixed the matter for hearing the parties having fully complied on the Provisions of Order 11 of the Civil Procedure Rules 2010. 25. They were directed file written submissions. Eventually, it was set down for delivery of Judgment with the Court giving directions on submissions. 26. **The Petitioner’s case** 27. **Background facts to the case** 28. On or about 20th May, 1964, a strip of land comprising the coastal foreshore of the Indian Ocean situated at Port Reitz Creek, Mombasa was gazetted as a mangrove forest vide Kenya Legal Notice No. 174. The Petitioners stated that the said Legal Notice remained in force, as it had never been revoked or amended. 29. With the advent of the formation of Beach Management Units (BMUs), which were registered and mandated to manage, conserve, and protect landing sites and their environs, several members of the 4th Petitioner were duly registered and gazetted. These included: * Mkupe Beach Management Unit * Ngare Beach Management Unit * Kitanga Juu Beach Management Unit 1. The said BMUs carried out their mandate of managing and conserving fishermen’s landing sites, protecting the environment, and safeguarding the ecosystem to ensure the growth of aquatic flora and fauna. Even before their formal registration, members of the 4th Petitioner had, since time immemorial, used a portion of the strip (later registered as Land Reference 51691/VI/MN, Title No. CR 70862) as a landing site. They managed the land, conserved it, and protected the environment from disturbance and destruction. In June, 2023, members of the 4th Petitioner discovered encroachment by the 2nd Respondent on a portion of the strip. Upon further investigation, they established that the land had been illegally alienated and acquired by the 1st Respondent, who subsequently transferred it through sale to the 2nd Respondent. Efforts by the 4th Petitioner to resolve the issue through the County Government of Mombasa and the National Government, specifically the County Executive Committee Member in charge of Land and the Mombasa County Commissioner, proved futile. 2. The Petitioners further established that in the year 2017, the 4th Respondent, in connivance with the 3rd Respondent, orchestrated the survey and excision of approximately 90.4 hectares of the protected mangrove forest. A Deed Plan was approved, and the land was registered as private property, available for alienation and acquisition, without adherence to constitutional safeguards on riparian land, and without public participation or consultation of stakeholders, including the 4th Petitioner. The excised portion formed part of the foreshore, which was reserved for public use, including recreation, and was therefore not available for allocation to private entities. The Petitioners contended that the alienation and allocation of the suit land to the 1st Respondent, and its subsequent transfer to the 2nd Respondent, was done in secrecy, without the knowledge of the National Land Commission (NLC), the custodian of public land in Kenya. 3. As a result, local villagers and fishermen, particularly members of the 4th Petitioner, who had long used the land as a boat landing base, were locked out of their traditional fishing activities. They were rendered jobless and faced threats, intimidation, and violence from the 2nd Respondent and its agents. The Petitioners emphasized that the right of access to the ocean through the foreshore was a public right secured by a public easement, which could not be extinguished by private encroachment. 4. Finally, the Petitioners asserted that any development or construction on the suit land, apart from its traditional use as a fishermen’s landing site, would destroy aquatic breeding grounds and disturb the ecosystem, with adverse impacts for both present and future generations. 5. **Statutory Provisions in respect to Swamp/wetland/riparian land in Kenya** 6. ***“Where a public authority transgresses the law or is about to transgress it, in a way that offends or injures thousands of her majesty's subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced and the courts in their discretion can grant whatever remedy is appropriate”***. 7. According to the Petitioners in the Preamble to the Constitution of Kenya, the people of Kenya, including the Petitioners, have aspirations for a Government that is based on the essential values of human rights, equality, freedom, democracy, social justice, and the rule of law. **Land** 1. Article 1(3) (c) of the Constitution of Kenya provides that all sovereign power under the Constitution is delegated to state organs, the Judiciary and Commissions which shall perform their functions in accordance with the Constitution. The article mandates the court to exercise its jurisdiction in the realization of the constitutional provisions. 2. Article 2(1) of the Constitution of Kenya affirms the supremacy of the Constitution and provides that the Constitution binds all State Organs at both levels of government. 3. Article 2(4) of the Constitution of Kenya provides among other things that any act or omission in contravention of the Constitution is invalid to the extent of its contravention. 4. By dint of Article 3 of the Constitution of Kenya the Petitioners have an obligation to respect, uphold and defend the constitution. The petitioners are public-spirited individuals, entities and a human rights watchdog who have instituted these proceedings in the interest of the public and their public law duty aforesaid, in defence of the constitution and the observance of the rule of law. 5. Article 22(1) of the Constitution of Kenya accords them rights either on their own or acting in public interest or otherwise to institute court proceedings to enforce any provision of the Constitution notwithstanding any other cause of action available to them under any other law. 6. The right to access justice is guaranteed under Articles 48 of the Constitution and the state is obligated to ensure access to justice for all persons. The Petitioners have instituted these proceedings in the interest of the public and in the promotion of access to justice. 7. Moreover, Articles 258 of the Constitution has empowered every person, to move the Courts, contesting any contravention of the Bill of Rights or the Constitution in general. 8. Moreso, by dint of Article 260 of the Constitution, every person, whether corporate or non-incorporated has unhindered access to justice under the current constitutional dispensation. 9. Rule 4(2)(iii) of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 permits a person acting in the public interest to institute where any right or fundamental freedom provided for in the Constitution is allegedly denied, violated or infringed or threatened. 10. Furthermore under Article 10 of the Constitution, the national values and principles of governance therein bind all State organs, State officers, public officers and all persons, whenever any of them inter alia enacts, applies or interprets any law; or makes or implements public policy decisions. 11. The Supreme Court in the case of *“in the Matter of the Interim Electoral Commission [2011] eKLR”*, affirmed the values and principles articulated in the preamble, in Article 10, in Chapter 6 and in various other provisions of the Constitution, which addresses the critical historical, economic, social and cultural realities in Kenya. 12. The principles of good governance and the rule of law not only require that every state organ or officer acts only within the powers conferred on them by and in accordance with the constitution but the principles also require state organs/officers to discharge legal obligations required of them by the Constitution or any other law. Critically the rule of law requires state and public officers to act in accordance with the law. 13. The Petitioners therefore had locus standi, as a public watchdogs, to interrogate the allocation process of public land and to approach this Honourable court to investigate the procedural propriety of the allocation thereof and to any challenge the alienation of the suit land that is unlawful and not procedural. 14. By dint of Article 23(3) of the Constitution of Kenya this Honourable court has authority to uphold and enforce the Constitution. Similarly Article 23 of the Constitution sets out the remedies which a court may grant pursuant to court proceedings brought under article 22 thereof. This Honourable Court therefore has jurisdiction to grant “an appropriate relief”, including a declaration of rights, a conservatory order, an injunction, a declaration of the invalidity of a law, and an order for compensation in terms of Article 23(3) (a-e) of the Constitution. 15. Further under Article 165(3) (b) of the Constitution of Kenya, 2010, this Honourable court is vested with jurisdiction to hear any question respecting the interpretation of the Constitution including the determination of whether anything said to be done under the authority of the Constitution or of any law is consistent with the Constitution. 16. Furthermore, under Article 165 (3) (b) and (d) of the Constitution, this Honourable Court has jurisdiction to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened. 17. By dint of Section 13 of the Environment and Land court Act No.12A of 2012 this Honourable court is vested with jurisdiction to inter-alia hear and determine all the disputes in accordance with Article 162(2)(b) of the Constitution. 18. Meanwhile under Section 13(2)(d) and (e) of the Environment and Land court Act No.12A of 2012 this Honourable court in exercise of its jurisdiction under Article 162(2)(b) of the Constitution has powers to hear and determine disputes inter alia relating to public, private and community land and/or other disputes relating to the environment and land. 19. Further under Section 13(3) of the Environment and Land court Act No.12A of 2012,this Honourable court has jurisdiction to hear and determine applications for redressing a denial or infringement of or threat to, fundamental freedoms relating to clean and healthy environment under Articles 42, 69 and 70 of the Constitution. 20. Section 13(7) of the Environment and Land court Act No.12A of 2012 sets out the remedies which this Honourable court may grant under the Act. 21. In a nutshell by dint of Article 1(c) 4(2) 10, 22, 23, 50(1), 162, 165, 258 and 259 of the constitution as read together with Section 13 of the Environment and Land court Act No.12A of 2012 this Honourable court is vested with jurisdiction inter-alia to hear any question regarding violation of Land Rights, Environmental Rights and issues determining if such act or commission or omission are constitutional and the interpretation of the constitution including question of contradiction between any Law and regulation and the constitution and to protect the constitution from any threats or violation. **Violations of the Constitution and other laws** 1. On 28th August, 2010, the people of Kenya promulgated and bequeathed to themselves the Constitution of Kenya, 2010. Among the radical changes introduced were provisions necessitated by numerous cases of open fraud and irregular allocation of public land to private and politically connected individuals, particularly touching on matters of land and the environment. 2. By virtue of Article 67, the Constitution established the National Land Commission (NLC), the 5th Respondent, with functions that included the duty to **“initiate investigations, on its own initiative or on a complaint, into present or historical land injustices and recommend appropriate redress.”**. 3. Further, Article 68 (c)(v) directed Parliament to enact legislation enabling the review of all grants or dispositions of public land to establish their propriety or legality. Pursuant thereto, Parliament enacted the National Land Commission Act, No. 5 of 2012, which operationalized the NLC. Under Section 14 (1) of the Act, the Commission was empowered, within five years of commencement, to review all grants and dispositions of public land, either on its own motion or upon a complaint, to establish their legality. 4. Articles 67 and 68 (c)(v) of the Constitution, read together with Section 14 of the NLC Act, therefore empowered the 5th Respondent to review all grants of public land to confirm their propriety. Where land previously classified as public was registered as private, the Commission was entitled to investigate the process of conversion. 5. The Constitution, under Article 62(1)(a), (g), and (i), defined public land to include: * Land which at the effective date was unalienated government land; * Government forests, game reserves, water catchment areas, national parks, sanctuaries, and specially protected areas; * All land between the high and low water marks. 1. The suit land fell squarely within these definitions, being part of a gazetted mangrove forest and foreshore area. 2. Additionally, Section 45 of the Survey Act and Regulation 110 of the Survey (Amendments) Regulations, 1994 provided that where unalienated government land fronting the coast was surveyed for alienation, a strip of not less than 60 metres above the high-water mark had to be reserved for government purposes. The law outrightly forbade the conferment of any right to the foreshore by conveyance, lease, or license. 3. The suit land, lying between the high and low tide water marks, was excised from the foreshore—land reserved for public use, including recreation—and was therefore not available for allocation to private entities. The 3rd and 4th Respondents had no authority under the provision of Article 62 of the Constitution or Regulation 110 of the Survey Regulations, 1994 to alienate it. 4. The Petitioners further averred that the land was reserved for government purposes and could only have been alienated under the direction of the Minister responsible for Survey of Kenya. In the absence of such direction, the grant and encroachment were patently unlawful and void. 5. The alienation and allotment of the suit land to the 1st Respondent constituted a grave violation of the national values and principles of governance under the provision of Article 10, which demanded integrity, transparency, and accountability. It also violated the rules of natural justice under Article 47, which guaranteed every person the right to administrative action that was expeditious, efficient, lawful, reasonable, and procedurally fair. The members of the 4th Petitioner were denied fair administrative action when the land was alienated without consultation or public participation. 6. Moreover, the suit land remained a protected forest area and a landing site for fishermen, and was therefore not available for alienation. Neither the 3rd nor the 4th Respondents had statutory powers to set apart, alienate, or allocate it. The alienation and allotment of the suit land to the 1st Respondent was illegal, unconstitutional and contrary to Section 45 of the Survey of Kenya Act, Cap 299, Laws of Kenya and Regulation 110 (1) of The Survey Regulations 1994. 7. The 3rd and 4th Respondents herein acted illegally by allocating the suit land to the 1st Respondent, which land he had curved out of the foreshore contrary Regulation 110 (1) of the Survey Regulations of 1994. Without following the constitutional safeguards on riparian Land and prohibition on its acquisition and alienation on by any person whatsoever, the 3rd and 4th Respondents in contravention of Section 45 of the survey Act and Regulation 110 under 1994 survey regulation caused the same to survey, approved a deed plan and had the same registered as private Land, and making it available for alienation and acquisition for private use. 8. Meanwhile, whereas right to property is protected under Article 40 of the Constitution, the said protection of the right to property does not extend to illegally acquired property. In the circumstances, the Constitution of Kenya, 2010, while continuing to protect the right to lawfully acquired property, expressly provided in Article 40(6) that the constitutional protection of the right to property did not extend to protection of illegally acquired property. 9. The Petitioner averred that the people of the Republic of Kenya did not enact the Constitution in vain and the Constitution is not an abstract and hollow document hence this Honourable court should not countenance the fragrant breach of the Constitution. 10. The Petitioner further stated that the parent ministry under which the 3rd and 4th Respondents fall, had failed to carry on its mandate in making sound Land policies and protecting the suit Land as provided for under constitution and statute Law and as a result has enabled the suit Land to illegally and wrongly alienated and allocated to the 1st Respondent land subsequently sold and transferred to the 2nd Respondent. 11. **Prayers** 12. The Petitioners urged the Court to determine the following questions: 13. Whether the suit Land as delineated in Land Survey Plan 411154 being Land Reference 51691/VI/MN and registered as title CR 70862 falls within the high water and low water mark of Indian Ocean as per the provision of Article 62 (1) (I) and thus riparian or offshore Land? 14. Whether the suit Land form part and parcel of mangrove as per legal notice no.174of 20th May 1964 and that the same has been fishermen Landing sites and breeding site for both aquatic flora and fauna? 15. Whether the suit parcel of Land was available for alienation and private acquisition as of the year 2017? 16. Whether the procedure for conversion of public Land to private was adhered to and follow and acquisition of the suit land was above board? 17. Whether the public participation on the stakeholder was carried out especially on the people to be impacted by the changes on the entire ecosystem. 18. Whether the Rights of the private owner supersedes the public interest and the common good which accrues from public use of the subject parcel of Land. 19. Whether the principles set on alienation and acquisition of public Land (riparian Land) as set out by the supreme court of Kenya in the case of ***“Dina Development – Versus - County government and 5 others”*** do apply. 20. Whether the constitutional protection of the right to property provided in Article 40 (6) that the constitutional extends to the protection of illegally acquired property 21. Whether the resultant Certificate of Title from the impugned process and procedure is valid and can confer ownership and the same is indefeasible 22. The Petitioners prayed for the following reliefs:- 23. ***A declaration that all that parcel of Land comprising Land Reference NO.51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa is riparian Land forming part of the beach property within the high and lower water marks of the Indian Ocean and its alienation and acquisition by the 1s Respondent and subsequent by 2nd Respondent was from inception was unconstitutional, illegal, unlawful and thereby null and void ab initio.*** 24. ***A declaration that the 3rd and 4th Respondents acted illegally by allocating all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa to the 1st Respondent, which land he had partly curved out of the foreshore contrary to Article 62 of the Constitution and Regulation 110 of the Survey (Amendments) Regulations 1994.*** 25. ***A declaration that the 3rd and 4th Respondents abused their office and acted illegally and unconstitutionally in alienating all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa which land he had partly curved out of the foreshore and gazetted forest land contrary to Article 62 of the Constitution and Regulation 110 of the Survey (Amendments) Regulations 1994.*** 26. ***A declaration that the 4th Respondent abused its office and acted illegally and unconstitutionally in extending the boundary of all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa to cover a portion of the offshore and gazette forest land;*** 27. ***A declaration that the Respondents acts of omission and commission were violation of the constitution and the Law in particular Article 62 of the Constitution and regulation 110 of the Survey (Amendments) Regulations 1994.*** 28. ***Declaration issued that the actions of the 3rd Respondent violated the 4th Petitioner’s and its members’ right to fair administrative action as guaranteed by Article 47 of the Constitution.*** 29. ***A declaration that the alienation of alI that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa by the 3rd and 4th Respondents to the 1st Respondent and a portion of LR No MN/1/5901 that encroaches on the reserve land by the 2nd Respondent was done in breach of the rules of natural justice, procedural and administrative fairness and national values and principles of governance.*** 30. ***A declaration that the alienation by the 3rd and 4th Respondents to the 1st Respondent of all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa which is the 4th Petitioner’s Landing site and access to the Indian Ocean beach violated the 4th petitioners’ right to equal access to public property.*** 31. ***A declaration that the extension by the 4th Respondent of the boundary of all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa to cover a portion of the reserve land which is the 4th Petitioner’s access to the Indian Ocean beach was a violation of the appellants’ right to equal access to public property.*** 32. ***A declaration that the alienation of a reserve land by the 4th Respondent to the 1st Respondent and the subsequent sell and transfer to the 2nd Respondent for private use was a violation of the 4th Petitioner's right to clean and healthy environment and equal access to public property.*** 33. ***An order of injunction to restrain the 2nd Respondent, its directors, owners, servants and/or agents from selling, transferring, mortgaging, charging, leasing, developing, putting up a wall or fence or blockage of any nature on and from having any other or further dealing with all that parcel of Land comprising Land Reference NO.51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa.*** 34. ***A permanent injunction to restrain the 1st and 2nd Respondents, their officers, servants and/ or agents from blocking the 4th petitioner’s access to and view of the Indian Ocean through all that parcel of Land comprising Land Reference NO.51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and LR No MN/I/5901 in any manner whatsoever.*** 35. ***A mandatory injunction compelling the 1st and 2nd Respondents to demolish a stone wall and any other structure that they have constructed on all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and LR No MN/I/5901, Mombasa;*** 36. ***An order of Judicial Review in the nature of certiorari to bring into this court and quash the decision of the 3rd and 4th Respondents to alienate and allocate all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and LR No MN/I/5901, Mombasa to the 1st Respondent;*** 37. ***An order to Judicial Review in the nature of certiorari to bring into this Honourable court and quash the decision of the 4th Respondent to extend the boundary of all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and LR No MN/I/5901, Mombasa to cover a portion of the reserve land;*** 38. ***An order of Judicial Review in the nature of mandamus to compel the 3rd Respondent and/or its successors in title to cancel Grant No CR 22652 dated 4th April, 1992for all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862situated at Portreitz creek Mombasa and LR No MN/I/5901, Mombasa.*** 39. ***An order of Judicial Review in the nature of a mandamus to compel the 3rd Respondent and/or its successors in title to amend Grant No CR 52344 dated 10th June, 2011 for LR No MN/I/5901 and remove therefrom the portion thereof that extends to the reserve land;*** 40. ***An order directing the 3rd Respondent to revoke and cancel the certificate of title No.CR 70862.*** 41. ***An order directing the 4th Respondent to cancel and expunge all survey plans, computation field notes, deed plans and survey records for all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and LR No MN/I/5901, Mombasa.*** 42. ***An order of eviction to issue against the 2nd Respondents employees, servants, agents and any other person acting on his behalf and instructions from all that parcel of Land comprising Land Reference NO. 51691/VI/MN and registered as title CR 70862 situated at Portreitz creek Mombasa and LR No MN/I/5901, Mombasa.*** 43. ***THAT Honourable court be pleased to issue any other or further orders or remedy that it shall deem fit to grant.*** 44. ***Costs of the Petition be borne by the Respondents.*** 45. The Petition was supported by a 28 paragraphed affidavit sworn by JULIUS OGOGOH, a human activist and defender and the executive director of Commission for Human Rights and Justice herein on the same date as the petition with annextures marked as “A to K” where he averred that: - 46. He was an adult male of sound mind and a citizen of Kenya, a human rights activist and defender, and the Executive Director of the Commission for Human Rights and Justice, aware of the matters in issue and therefore competent to swear the affidavit. 47. He swore the affidavit in good faith in support of the Petition and application therein. 48. Re - affirmed and repeated the facts and averments stated in the Petition, including each paragraph individually and cumulatively, and deponed that the facts therein were true to his knowledge, information, and belief. 49. In support of the averments in the Petition, the Affiant annexed a bundle marked as exhibit “JO-001” containing: 50. Legal Notice No. 174 of 1964 declaring the suit parcel of land as mangrove forest. 51. An article on Mikoko (Kenyan mangrove species). 52. Registration certificates for Beach Management Units. 53. Certificate of registration of Port Reitz Creek Beach Management Network. 54. Photographs of landing site bandas and signpost. 55. Letters of confirmation from the Director of Fisheries dated 16.2.2018. 56. Certificate of Title No. CR 70862. 57. Land Survey Plan No. 411154. 58. Excerpts from The Standard newspaper. 59. Minutes of meetings held on 3.7.2023 and 27.7.2023. 60. Several excerpts of OB reports. 61. Environmental report. 62. Demand notice. 63. The Petitioners had a right of access to the Honourable Court to safeguard their rights and defend the Constitution of Kenya, 2010, which was in danger of further infringement. 64. The Affiant stated that Articles 22 and 258 were tailored for the community and enacted into the Constitution the doctrine of public interest litigation, vesting locus standi in every person to institute proceedings for the protection of rights and fundamental freedoms. 65. Under the provision of Article 22 (2) of the Constitution, a person could institute court proceedings to claim that rights and fundamental freedoms had been denied, violated, or infringed, and could act on behalf of persons whose rights were violated or in the public interest. 66. Under Article 258, a person could institute court proceedings to claim that the Constitution had been contravened or threatened with contravention. 67. The Petition was part of the struggle to entrench the rule of law into the fabric of the State, and that failure by the Honourable Court to grant the orders sought would have disastrous implications for the rule of law. 68. In November, 2023, while discharging his duties as a human rights activist, he learnt that the 1st Respondent had unlawfully and illegally alienated and acquired 90.4 hectares of land at Port Reitz Creek, Mombasa, forming part of the mangrove forest as per Legal Notice No. 174 of 1964. 69. The parcel had been hived out of riparian land delineated as Land Survey Plan No. 411115 and registered as Title No. CR 70862 in favour of the 1st Respondent, who later sold and transferred it to the 2nd Respondent to conceal illegality and fraud. 70. Since time immemorial, the suit land had been used as a fishermen’s landing site, and members of the 4th Petitioner were mandated by the State Department of Fisheries to manage, conserve, and protect it. 71. The members of the 4th Petitioner protested against encroachment by the 2nd Respondent, necessitating meetings at the Mombasa County Commissioner’s office and County Government offices, but the issue remained unresolved. 72. The alienation and acquisition violated Articles 62(1)(i) and 69(1) of the Constitution, Regulation 110 of the Survey Regulations, 1994, and Section 45 of the Survey Act, rendering the certificate of title bereft of sanctity. 73. The community had used the land as a source of livelihood, and the acquisition violated their right to sustainable exploitation for current and future generations. 74. The expert reports confirmed that alienation and acquisition would destroy the ecosystem, and being riparian land, it could not be acquired for private development. 75. The Affiant deponed, on advice of counsel, that the alienation and acquisition contravened the Supreme Court decision in ***“Dina Management Limited – Versus - County Government of Mombasa & 5 Others”***, which condemned conversion of public land into private ownership. 76. Owing to the land’s location within 60 metres of the high and low water marks, it remained public land, and any disposition thereof was null and void ab initio. 77. The suit parcel of Land consist of portions which ordinarily are breeding sites for aquatic flora and fauna any development and/or waste shall entirely destroy the ecosystem there will be no sustainability as required of by the provision of Article 69(1) of the Constitution. 78. There was an overarching requirement of justice that the orders sought be granted. 79. The balance of convenience and public good favours the granting of the orders sought. 80. It was fair and just and for the purpose of justice and equity and the overarching purpose of the constitutional integrity and Rule of Law to make the orders sought. 81. This Honourable court has unfettered power and jurisdiction to make the orders sought. 82. Under the provision of Article 165 as read together with Article 162 2 (b) of the constitution of Kenya and section 13 of the Environment and Land Act No.12 of 2012 this court has jurisdiction to hear any question regarding the interpretation of the constitution as it affects matters reserve for the court including questions of contradiction between any Law and constitution. 83. There had been no previous proceedings between the parties concerning the matter in issue herein. 84. If the Petition herein was not immediately ventilated and necessary orders made the damage or harm would be of an immediate or incalculable and irreversible nature. 85. In view of the above and pursuant to this Honourable court duly to promote and safeguard constitutionalism and the Rule of Law the Affiant believed that it was now incumbent for the Honourable court to determine the issues raised in this Petition to ensure that the constitution is protected. 86. Finally deponed that the contents of the affidavit were true to his knowledge, save for matters deponed to on information and belief, whose sources were specified. 87. **The responses by the 2nd Respondent.** 88. While opposing the Petition, the 2nd Respondent filed a 24 Paragraphed Replying Affidavit sworn by OSMAN KAHIA dated 3rd November, 2024 together with annexures marked as “OK” annexed hereto. He averred as follows:- 89. He was a male adult of sound mind and understanding and a Director of the 2nd Respondent. Thus, he was competent to swear this Affidavit on behalf of the Respondent. 90. He was very conversant of the facts giving rise to the filed Petition dated 4th December, 2023. 91. The Petition was misconceived, without substantive grounds and lacked merit whereby it sought to oust the indefeasibility and legality of the title and proprietorship of all that parcel of land known as Land reference Numbers MN/VI/5169 (CR No. 70862) held by the 2nd Respondent. 92. It was a lease for 99 years. 93. The Petitioners hoped the Court would extend its benevolence and cancel the title deed without any cogent reason of justifiable cause whatsoever. 94. From the very onset, the 2nd Respondent has been the legal and absolute registered owner to the suit having acquired it from the 1st Respondent through a legal purchase. Annexed and Marked as “OA – 1 “ was a copy of a certificate of Lease. 95. The 1st Respondent had acquired the suit land from the defunct Municipality of Mombasa in the year 1999. He was issued with the prerequisite title documents over the suit land. Prior to that, the 1st respondent had been in occupation and possession of it until he transferred it. 96. Contrary to the misleading assertion made by the Petitioners, the 2nd Respondent vehemently refuted that the suit land was a Gazetted Coastal Mangrove region. It had a well demarcated boundaries and satisfied the provision of regulation 110 of the Survey Regulations as depicted by the Deed Plan No. 411154 at page 60 of the bundle and authenticated by the 4th Respondent on 24th January, 2017 with a defined boundaries. 97. The 2nd Respondent vigorously refuted the following allegations as alleged by the Petitioners:- 98. The suit land was not private land. 99. It had been Public land nor a Gazetted Mangrove Forest situated between the Low and High Water Mark on the Coastal region. 100. It was declared to be forest areas by a Proclamation No. 44 of 1932. 101. That sometimes in 2023, there had been encroachment of the land by the Respondents. That it was not true that this acts were protested by the Petitioners. The alleged minutes to that effect were unsigned. 102. All these were fictitious. 103. The suit land was Private land with defined boundaries sixty ( 60 ) Meters beyond the High Water. There were no development undertaken on it. He was issued with an official search by the 3rd Respondent dated 18th August, 2023. These could be seen from the Google generated Photographs dated 10th June, 2024 by the 2nd Petitioner herein. 104. The Gazetted Mangrove Forest could only be areas between the High and Low Water Mark. 105. The Deed Plan clearly indicated definite boundaries situated 60 meters beyond the High Water Mark. This removed it from the Gazetted Mangrove Forest. 106. The Petitioners were seeking to scuttle the 2nd Respondent’s proprietary rights under the provision of Article 40 of the Constitution of Kenya, 2010 and as the Legal Notice No. 174 of 1964 never named the suit land. 107. If the State Department of Fisheries took the land by compulsory acquisition, the 2nd Respondent would be entitled to compensation. 108. It was not true that the 2nd Respondent had violated any law on parameters of undertaking survey works under the provision of Section 45 of the Survey Act nor Articles 62 ( 2 ) ( i ) & 69 ( i ) of the Constitution of Kenya concerning gazetted Mangrove regions or Forests as they were not part of the suit land. 109. None of the Petitioners pleaded how the land was illegally, irregularly or wrongfully acquired by the 1st Respondent who transferred it to the 1st Respondent. **IV. The responses by the Interested Party** 1. The Interested Party opposed the Petition through a 16 Paragraphed Replying Affidavit to Petition sworn by BENJAMIN MUINDI, on 25th April, 2024 who contended that:- 2. He was the County Forest Conservator-Mombasa. 3. He had read and had explained to him by the State Counsel on record the contents and purport of the Petition dated 4th December, 2023. 4. The suit property, LR 5169/VI/MN (Title No. CR 70862), was part of the Coastal Mangrove Swamp having been gazetted via Proclamation No. 44 of 1932 as a forest area. (Exhibit No. “BM -1”). 5. The proclamation by the then Minister for Natural Resources declared that central forests situated in Mombasa, Kwale, Lamu, and Kilifi Districts were public forests vide Legal Notice No. 174 of 1964. (Exhibit No. “BM – 2”). 6. Since the suit property was a public forest, its management was provided for under the Forest Conservation and Management Act, 2016, particularly the provision of Section 34, and its status had never been revoked. 7. On 21st March, 2012, the Kenya Forest Service and Africa Gas & Oil Company Limited (AGOL) entered into a Special - Use License agreement and submitted all due payments. (Exhibit No. “BM – 3”). 8. An area of approximately 23.103 hectares was leased to Africa Gas and Oil Company for a term of 30 years from the date of issue. 9. On 7th October, 2019, an addendum was made to the Special - Use License between Kenya Forest Service and Africa Gas and Oil Limited, where the licensee requested an additional area of approximately 4.3 hectares. (Exhibit No. “BM – 4”). 10. The said addendum was an addition to the area granted in the Special - Use License dated 21st March, 2012. 11. On 25th January, 2021, the licensee requested an area of 16.19 hectares, which the Kenya Forest Service agreed upon, and an addendum was made to this effect. (Exhibit No. “BM – 5”). 12. The total area occupied by Africa Gas and Oil Limited within the gazetted Kilindini Bay Mangroves Area in the Mombasa ecosystem was approximately 61.283 hectares. 13. The suit property being a public forest, was not available for alienation or re-allocation to any individual to hold interest for private purposes. 14. There was no record available altering the gazetted mangrove area for titling or creating a parcel for another use. 15. The Certificate of Title over the land known as LR 5169/VI/MN (Title No. CR 70862) issued to the 1st Respondent was irregular. 16. The 2nd Respondent’s leasehold holding of the suit property, being a mangrove public forest, was in contravention of the Forest Conservation and Management Act, 2016. 17. The Affiant finally deponed that what was set out hereinabove was true to the best of his knowledge and belief, save where otherwise stated. **V. The second responses by the Interested Party** 1. Additionally, the Interested Party opposed the Petition through a 10 Paragraphed response to petition sworn by Benjamin Muindi, on 25th April, 2024 who contended that:- 1. He was the County Forest Conservator-Mombasa. 2. The suit property, LR 5169/VI/MN (Title No. CR 70862), was part of the Coastal Mangrove Swamp having been gazetted via Proclamation No. 44 of 1932 as a forest area. (Herein attached and marked as “BM ‑ 1”). 3. Further to the above proclamation, the then Minister for Natural Resources declared that central forests situated in Mombasa, Kwale, Lamu, and Kilifi Districts were public forests vide Legal Notice No. 174 of 1964. (Herein attached and marked as “BM ‑ 2”). 4. Since the suit property was a public forest, its management was provided for under the Forest Conservation and Management Act, 2016, particularly the provision of Section 34, and its status had never been revoked. 5. The suit property, being a public forest, was not available for alienation or re‑allocation to any individual to hold interest for private purposes. 6. There was no record available altering the gazetted mangrove area for titling or creating a parcel for another use. 7. The Certificate of Title over the land known as LR 5169/VI/MN (Title No. CR 70862) issued to the 1st Respondent was irregular. 8. The 2nd Respondent’s leasehold holding of the suit property, being a mangrove public forest, was in contravention of the Forest Conservation and Management Act, 2016. 9. The Affiant finally deponed that what was set out hereinabove was true to the best of his knowledge and belief, save where otherwise stated. **VI. Submissions** 1. While all the parties were in court on they consented to canvassing the Petition dated 4th December, 2023 by way of written submissions. Pursuant to that on the Honourable Court directed to deliver the Judgment on notice. Eventually, it was delivered on 17th July, 2026 accordingly. 2. **The Written Submissions by Petitioners** 3. The Petitioners through the Law firm of Messrs. N.M. Kamwendwa & Co. Advocates filed their written submissions dated 3rd September, 2024. Mr. Kamwendwa Advocate commenced his submission by providing a brief background of this matter. He stated that the Petitioner sought for the above stated reliefs. 4. According to the Learned Counsel submitted that the Petition was based on a supporting affidavit sworn by Julius Ogogoh on 4th December, 2023. Only the Interested Party, Kenya Forest Service, had filed a response to the Petition. The Petition had not been opposed by either of the Respondent despite them having been granted leave to file their responses. In the circumstances, the issues raised by the Petitioners should be deemed to have been admitted by dint of. On the factual background, the Learned Counsel submitted that there lied a strip of land comprising the coastal foreshore of Indian Ocean situated at Port reitz creek in Mombasa that was on or about on the 20th May 1964 gazetted as mangrove forest vide Kenya legal Notice No.174. The said legal Notice is still in force since it has never been revoked and/or amended. A copy of the gazette notice has been annexed as JO-001(a). 5. Sometimes in the month of June 2023, it came to the notice of the 4th Petitioners’ members that there was some encroachment by the 2nd Respondent on a portion of the said strip and upon further investigation, it came to their knowledge and/or discovered to their horror that that a portion of the said land may have been illegally alienated and acquired by the 1st Respondent. Upon further investigations and to their consternation, members of the 4th Respondent indeed established that the 4th Respondent in connivance and/or tacit approval of the 3rd Respondent and in total disregard of the Constitution, the Forest Act, the Forest and Management Act, the Surveys Act and the Regulations 110 thereunder, the Land Act, 2012 and all the existing Land Laws and regulations and without the involvement, orchestrated and caused to be demarcated, surveyed and hived off a total of 90.4 hectares of the strip of land comprising the coast foreshore, approved a deed plan, alienated and allocated it to the 1st Respondent who registered it as all that parcel of Land comprising Land Reference 51691/VI/MN and registered as title CR 70862 situated at Port-reitz creek Mombasa and who in a bid to cover his footprints subsequently sold and caused it to be transferred to the 2nd Respondent. A copy of the tile is annexed as annexture JO-001(g) and appears at pages 58-61. 6. The Learned Counsel submitted that meanwhile, at the advent of formation of Beach Management Units, the following members of the 4th Petitioner were registered and gazetted as Beach managements with the mandate to manage, conserve and protect such Landing sites and its environs namely:- * Mkupe Beach Management Unit * Ngare Beach Management Unit * Kitanga Juu Beach Management Unit Copies of their registration certificates annexed as annexture JO-001(c) were illustrative. 1. The said Beach Management Units have over time carried out their mandate of managing, conserving and protecting the Environment within the said ecosystem (both aquatic flora and fauna) from disturbance and/or destruction. Furthermore, the members of the 4th Petitioner are fishermen and together with the local fishermen, even before their registration, have since time immemorial been using a portion of the strip as a boat landing site. Moreover, members of the 4th Petitioner and the local community have used the suit land for recreational purposes and as an access to the open sea. 2. The Learned Counsel submitted that indeed upon the encroachment on the suit land, the 2nd Respondent locked out the members of the 4th Petitioner from using the suit land to access to the open sea for recreational purposes and the local fishermen from using it as a boat landing site and/or carrying on with their fishing activities thereby rendering members of the 4th Petitioner jobless with no means of livelihood. Indeed any attempts of carrying on with their fishing activities was met with violence, threats and intimidation by the 2nd Respondent and/or its agents and servants. Copies of photographs appearing at pages 53-54 annexed as annexture JO-001(e) are illustrative of the encroachment. 3. As evidenced by anneture JO-001(f) appearing at pages 56, the 4th Petitioner in a bid to resolve the issue of encroachment of the suit land sought for clarification and resolution from both the County Government of Mombasa and National government through the office of Mombasa County Executive Committee member in-charge of Land and the Mombasa County Commissioners office but several attempts made by the aforesaid two offices in two levels of government on issue of encroachment, illegal alienation and acquisition of the riparian Land were to no avail. In a nutshell your Lordship, at the center of the dispute herein is all that parcel of Land comprising Land Reference 51691/VI/MN and registered as title CR 70862 situated at Port reitz creek Mombasa (hereinafter referred to as the suit land). Upon being joined, the Interested Party vide the replying affidavit sworn on.....has confirmed the following:- 4. On whether the 2nd Respondent had proved that it acquired a valid and legal title all that parcel of Land comprising Land Reference 51691/VI/MN and registered as title CR 70862 situated at Port-Reitz creek Mombasa, the Learned Counsel submitted that Public land is defined under the provision of Article 62(1)(a),(g)and (1) of the constitution as:- * land which at the effective date was un-alienated government land as defined by an Act of Parliament in force at the effective date; * government forests, government game reserves, water catchment areas, national parks, government sanctuaries, and specially protected areas; * all land between the high and low water marks. 1. The Learned Counsel submitted that one Benjamin Muindi, County Forest Conservator-Mombasa has inter alia deponed in his affidavit sworn on behalf of the Interested Party on 25th April, 2024 as follows:- 2. The suit property, LR 5169/VI/MN (Title No. CR 70862) is part of the Coastal Mangrove Swamp having been gazette via the Proclamation No. 44 of 1932 as a forest area. The Interested Party has annexed annexture BM-1. To prove the foregoing. 3. Further to the above proclamation, it was declared by the then Minister for Natural Resources that Central Forest. 4. The procedure for de-gazettement of a forest land before allocation is provided for under the Forest Act. A notice of variation of boundaries or revocation of State or local authority forests can only be published where the proposal is recommended by the Service and subsequently approved by resolution of Parliament as provided for under Section 28 of the Forest Act, Cap. 385, Laws of Kenya. The suit land fall within a Gazetted forest which has never been degazetted to-date. no degazettement has been done and there has been no government resolution to have the sui parcel degazetted for purposes of allocation and leasing. No proposal has ever been recommended to have the suit land to be varied in any way. 5. Due process was thereby not followed before its allocating and alienating without altering the boundaries of the forest by degazettement. Without following the due process, the suit land was not available for allocation and therefore any lease or title deed issued over the said land was and remains null and void. Leases and titles issued over the suit land to the 1st Respondent and the subsequent transfer of the suit land to the 2nd Respondent are therefore tainted with illegality and thus the 1st Respondent could not pass any interest to the 2nd Respondent hence any leases or title emanating from the foregoing process should be cancelled. It was obtained illegally and thus they area nullity. 6. They relied on the case of ***“Timothy Ingosi & 87 Others -Versus - Kenya Forestry Services & 2 others [2015] eKLR”*** (A copy is herewith enclosed and germane sections highlighted for your ease of reference) to buttress our foregoing proposition. Moreover and secondly, **Article 62(4) the Constitution** provides that *“public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use.”* 7. Even if there was any record available altering the gazette mangrove area, but there is none, by dint of the provision of Article 62(2) and (3), Article 67 (2) of the Constitution of Kenya and Section 14 of the National Land Commission Act 2012 only the National Land Commission is exclusively vested with mandate to manage, administer, alienate and allocate public land. Article 67(2) of the Constitution of Kenya states that:- **“The functions of the National Land Commission are-** **(a) to manage public land on behalf of the National and County Governments...”** 1. The Learned Counsel submitted that since the administration and management of public land, involves allocation of public land, it is the responsibility of the NLC to issue licences, leases and grants in respect of public land. It is only the National Land Commission, the 5th Respondent, which under the Constitution of Kenya, 2010, has the constitutional mandate to manage, alienate and allocate any public land including Government forests and specially protected areas. They were fortified in their foregoing proposition by the case of ***“Serah Mweru Muhu – Versus - Commissioner of Lands and 2 Others [2014] eKLR”*** (A copy is herewith enclosed and germane sections highlighted for your ease of reference), in support of the proposition that all land management must fall under the charge of the NLC. 2. Further in ***“Republic – Versus - County Government of Kiambu & 2 others Ex-parte Kimani Gachungi [2014] eKLR”***, (A copy is herewith enclosed and germane sections highlighted for your ease of reference) where the court inter alia stated:- ***“Apart from that there is now National Lana Commission established under Article 67 of the Constitution and one of its functions is to manage public land on behalf of the national and county government. Article 62(2) of the Constitution provides that Public land shall vest in and be held by a county government in trust for the people resident in the county, and shall be administered on their behalf by the National Land Commission while under Article 62(3) thereof Public land classified under clause (1) (f to /m) shall vest in and be held by the national government in trust for the people of Kenya and shall be administered on their behalf by the National Land Commission. Under Article 62(4) Public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use. Since the land the subject of this application is held by a county government in trust for the people resident in the county, it falls under public land which under the foregoing provision cannot be disposed of or otherwise used except in*** ***terms of an Act of Parliament. It is therefore clear that the decision whether or not to alienate public land is no longer the reserve of the 1st or 3rd Respondents. To compel the said Respondents to issue leases to the applicant in respect of the suit premises would be to compel them to take an action which is not within their jurisdiction yet an order of mandamus will not issue to compel an illegal action or an action which the Respondent has been divested of jurisdiction to perform since mandamus only issues to compel the performance of a duty which the Respondent is legally obliged to perform”*** 1. Moreover, by dint of the advisory opinion rendered by the Supreme Court at the instance of NLC in the Matter of the National Land Commission [2015] eKLR (NLC Advisory Opinion) (A copy is herewith enclosed and germane sections highlighted for your ease of reference), the functions of the NLC were inter alia identified as the management of public land on behalf of the national and county government; alienation of public land, allocation of public land, and development of attendant regulations; change and extension of user; sub-division of public land; renewal and extension of leases; reservation of public land for public interest purpose; development of rules and regulations for the sustainable conservation of land based natural resources; issuance of licenses, grants for the use of un-alienated public land, and the prescription of the applicable fee, collection of rent, royalties and other payments on use of land; issuance of land rent clearance certificates, conversion of public land to private land, among other functions. 2. In the instant case, the alienation, acquisition, sell and transfer of the suit Land was done without the knowledge of the National Land commission (5th Respondent) as the custodian of public Land in Kenya and as the commission charged with duty of Land management and administration hence the acts of the 3rd, 4th Respondents are tainted with illegality and Respondent. Neither the 3rd Respondent nor the 4th Respondent had powers or mandate to grant and/or confer any rights over public land either by way of a conveyance, lease, license or otherwise to the 1st Respondent since that mandate is bestowed upon the 5th Respondent, National Land Commission. The decision of whether or not to alienate and allocate public land is never the preserve of the 3rd, 4th Respondents. The 3rd and 4th Respondents have since been divested of jurisdiction to alienate and allocate public land. The Certificate of Title over the land known as 5169/VI/MN (Title No. CR 70862) issued to the 1st Respondent was thus irregularly issued. 3. The Learned Counsel submitted that indeed, the powers exercised by Land Registrars, including the Chief Land Registrar, are set out in Section 14 of the Public Service Commission Act(hereinafter referred to as the PSC Act) as follows:- **“The Chief Land Registrar, County Land Registrars or any other land Registrars may, in addition to the powers conferred on the office of the Registrar by this Act-** **(a) require any person to produce any instrument, certificate or other document or plan relating to the land, lease or charge in question, and that person shall produce the same;** **(b) summon any person to appear and give any information or explanation in respect to land, a lease, charge, instrument, certificate, document or plan relating to the land, lease or charge in question, and that person shall appear and give the information or explanation;** **(c) refuse to proceed with any registration if any instrument, certificate or other document, plan, information or explanation required to be produced or given is withheld or any act required to be performed under this Act is not performed;** **(d) cause oaths to be administered or declarations taken and may require that any proceedings, information or explanation affecting registration shall be verified on oath or by statutory declaration; and** **(e) order that the costs, charges and expenses as prescribed under this Act, incurred by the office or by any person in connection with any investigation or hearing held by the Registrar for the purposes of this Act shall be borne and paid by such persons and1 in such proportions as the Registrar may think fit** 1. Further, Section 15 of the PSC Act empowers the officer or authority responsible for the survey of land, to prepare and maintain a map or series of maps, to be known as the cadastral map, for every registration unit. The officer in charge of survey of land is the Director of Surveys, or his or her delegate, appointed under Section 3(1) of the Survey Act, Cap 299, Laws of Kenya. The Director of Surveys is responsible for coordinating all public sector mapping activities and for maintaining records of all maps, plans and land surveys which are conducted by Government Agencies. 2. In a nutshell, the 3rd and 4th Respondents gravely violated the Constitution by purporting toexercise the mandate, perform functions and discharge the duties reserved and bestowed by the Constitution on the 5th Respondent, NLC. It was and is a violation of the Constitution and the NLC Act (Act No. 5 of 2012, for the 3rd and 4th Respondents to purport to exercise powers of management and administration of land which exclusively vests on the NLC. Furthermore and thirdly, the land comprising the suit land was hived of the coastal foreshore by the 3rd and 4th Respondents, which foreshore consists of land lying between the Low-Water Mark and the High-Water Mark plus an additional 60 metres above the High-Water Mark within the meaning of regulation 110(1) of the Survey Regulations of 1994 hence such land is reserved for Government/Public use, including recreation, and is therefore not available for allocation to private entities. 3. It was their submissions that a foreshore is reserve land for Government purposes which could only be alienated under the direction of the Minister responsible for Survey of Kenya and in the absence of such direction, the grant and encroachment onto the reserve land is patently unlawful, and hence null and void. A foreshore is held by the State in public trust as a buffer zone before the baseline from which the countrys territorial sea is measured and it was therefore unlawful for the 3rd and 4th Respondents to allot to the 1st Respondent the reserve land. The Surveys Act and its regulations out-rightly forbids the conferment of any right to the foreshore by a conveyance, lease, license or otherwise hence it was therefore unlawful for the 3rd and 4th Respondents to cause to be alienated and allotted the suit land to the 1st Respondent. The foregoing proposition was elucidated in the case of ***“Kiluwa Limited & another – Versus - Business Liaison Company Limited & 3 others [2021]eKLR”***(A copy is herewith enclosed and germane sections highlighted for your ease of reference). 4. Moreover and fourthly, the members of the 4th Petitioner should have unrestricted access to the Indian ocean beach through the foreshore. The right of access to the ocean through the foreshore by members of the public, including the members of the 4th Petitioner and/or any other owner of the land along the coast, whether for economic, recreational or aesthetic reasons, is also a public right secured by a public easement. Such right is not acquired through a private treaty and only the Government may interfere with or limit such easement only in promotion or protection of the Public Interest as guaranteed by the Constitution and the law. A person or private entity who has encroached on the foreshore cannot interfere with or limit the enjoyment of a public easement through acts of commission or omission. Since the portion forming the suit land was excised out of the foreshore which is land reserved for public use,including recreation, the said land was therefore not available for allocation to private entities. 5. The foregoing proposition was elucidated by our Supreme court in the case of ***“Kiluwa Limited & another – Versus - Business Liaison Company Limited & 3 others (Supra)”*** (A copy is herewith enclosed and germane sections highlighted for your ease of reference). Fifthly and as was held in case of ***“Kogo Flats Ltd – Versus - Sammy Cherunya & another [2019] eKLR”***(A copy is herewith enclosed and germane sections highlighted for your ease of reference), the process of acquisition of a title is as good as the end result which is the title document. 6. According to the Learned Counsel, in their factual background, the suit land herein was alienated and allocated to the 1st Respondent by the 4th Respondent in connivance and/or tacit approval of the 3rd Respondent. Neither of the Respondents, including the 3rd and 4th Respondents, had denied the foregoing. Meanwhile, in a bid to cover his footprints, the 1st Respondent subsequently sold and caused the suit land to be transferred to the 2nd Respondent. The 1st Respondent as the original alottee of the suit land has opted not to appear in this matter or offer an explanation, through any disposition or otherwise, to demonstrate to this Honourable Court the root of his title or the legality of how he acquired the title and/or show that the acquisition of the suit land was legal, formal and free from any encumbrances. He has thereby been unable to demonstrate how he acquired the title to the suit land and caused its transfer to the 2nd Respondent. 7. As was held in the case of ***“Samuel Kamere – Versus - Lands Registrar, Kajiado [2015] eKLR”*** (A copy is herewith enclosed and germane sections highlighted for your ease of reference) while citing with approval the case of ***“Munyu Maina – Versus - Hiram Gathiha Maina, Civil Appeal number 239 of 2009”***,the Court stated:- ***“.....when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how the title and show that the acquisition acquired*** ***was legal, formal and free from any encumbrance including any and all interests which would not be noted in the register.”*** 1. According to the Learned Counsel in the instant case, save for its dangling of the instrument of title to proof its ownership of the suit land, the 2nd Respondent has also not gone beyond the instrument and proved the legality of how it acquired the title and/or showthat the acquisition of the suit land by the 1st Respondent was legal, formal and free from any encumbrances. Moreover, the sale and transfer of the suit land from the 1st Respondent to the 2nd Respondent directly flowed from the illegal and fraudulent acquisition of the suit land by the 1st Respondent. 2. Meanwhile, **Article 40 of the Constitution** states as follows:- **“40. (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property-** **(a) of any description; and** **(b) in any part of Kenya.** **(2) Parliament shall not enact a law that permits the State or any person-** **(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or** 1. They were fortified in their foregoing proposition by the court of appeal decision in the case of ***“Munyu Maina- Versus- Hiram Gathina Maina (2013) eKLR”***(A copy was herewith enclosed and germane sections highlighted for the Court’s ease of reference) where the court said the following about the responsibility of a registered proprietor whose title is under challenge in legal proceedings; ***“We state that when a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”*** 1. Further in the case of ***“Daudi Kiptugen – Versus - Commissioner of Lands & 4 Others [2015] eKLR”***(A copy is herewith enclosed and germane sections highlighted for your ease of reference) the Court held that:- ***“...the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title. If this were not the position then all one would need to do is to manufacture a Lease or a Certificate of Title at a backyard or the corner of a dingy street, and by*** ***virtue thereof, claim to be the rightful proprietor of the land indicated therein.”*** 1. According to the Learned Counsel in the instant case, since the title to the suit land is subject of a dispute having been challenged, the 1st and 2nd Respondents ought to have gone beyond the instrument of title and proved the legality of how they acquired the title and showed that the acquisition of the suit land by the 1st Respondent was legal, formal and free from any encumbrances. This Honourable should deduce in the circumstances that the suit land was illegally acquired and that the same was public property belonging to the Kenya forest services as the forest had not been degazetted. The Constitution of Kenya, 2010, while continuing to protect the right to lawfully acquired property, has expressly provided in Article 40(6) that the constitutional protection of the right to property does not extend to protection of illegally acquired property. 2. Moreover and lastly the alienation and acquisition of the suit land to the 1st Respondent was further done in secrecy and in clandestine manner as there was no public participation and consultation among the concerned stakeholder and in particular the members of the 4th Petitioner as the people mostly adversely impacted by the said acquisition, development and destruction and waste of the environment and the ultimate destruction of the entire ecosystem. 3. Meanwhile, the provision of Article 73(2) of the Constitution of Kenya requires objectivity and impartiality in decision-making on the part of the state officers and Public officers and in ensuring that their decisions and actions are not influenced by nepotism, bias, favouritism and improper motives or corrupt practices, that there be honesty in the execution of public duties, accountability to the Public for decisions and actions made and discipline and commitment in service to the people. 4. According to the Learned Counsel, in the instant case, it was their submissions that the decision to demarcate, alienate and allocate the suit land to the 1st Respondent was not objective and impartial but was influenced improper motives or corrupt practices in violation of the provision of Article 73 (2) of the Constitution of Kenya. In a nutshell, neither the 3rd Respondent nor the 4th Respondent had had any statutory powers to set apart and allocate the suit land to the 1st Respondent. The actions of the 3rd and 4th Respondents and the Interested Party in alienating and allocating the suit land to the 1st Respondent was therefore unlawful, a violation of the law and the Constitution. The alienation and allocation of the suit land by the 3rd and 4th Respondent to the 1st Respondent and the subsequent transfer of the suit land to the 2nd Respondent by the 1st Respondent was from inception unconstitutional, illegal, unlawful and thereby null and void *ab initio*. The suit land was illegally acquired and ought to be cancelled. The same was public property. 5. In conclusion, the Learned Counsel submitted that this Honourable Court should grant the Petitioners the orders sought in the Petition. 6. **The Written Submissions by the 2nd Respondent** 7. The 2nd Respondent through the Law firm of Messrs. AhmedNassir Abdullahi Advocates LLP, filed their written submissions dated 12th November, 2024. Mr. Billow Mohammed Advocate submitted that these were the 2nd Respondent's submissions in opposition to the Petitioner's Petition dated 4th December, 2023 which had sought to oust the 2nd Respondent’s proprietary rights over L.R No. 5169/VI/MN (Title No. CR. 70862). The claim had been based on five grounds viz: 8. The suit property is part of a gazetted mangrove forest within the jurisdiction of the Interested party; 9. The suit property is under the process of being allocated to the Petitioners by the Mombasa County for use as a fish landing site; 10. The 2nd Respondent was undertaking construction on the suit property; 11. The continuous use of the suit property by the 2nd Respondent will affect the flora and fauna in the mangrove region; and 12. The 2nd Respondent acquired the suit property illegally. 13. The 2nd Respondent filed its Replying Affidavit dated 3rd November 2024 stating that the suit property is a private property situated 60 meters beyond the high-water mark and has never been used as a fish landing site. The 2nd Respondent in the Replying Affidavit states that the suit property was legally acquired and it is not undertaking any constructions on the suit property. The 3rd to 6th Respondents have never filed any substantive Responses to the Petition save for Notices of Appointment. The 1st Interested Party filed a Replying Affidavit dated 25th April, 2024 claiming that the suit property is part of the gazetted mangrove forest having been declared so in the Proclamation No. 44 and confirmed in Legal Notice No. 174 of 1964. By virtue of that, the 1st Interested Party states that it leased out part of the alleged mangrove forest to the African Gas and Oil Company Limited and Miritini Freeport Limited for use in advancing their private commercial interests of running pipelines to transport petroleum products. The 2nd Interested Party has equally not filed any Responses to the Petition after its successful joinder to the proceedings vide the Application dated 28th June, 2024. The said Application remains unopposed to date and thus the Application stands allowed. 14. On the background. The Learned Counsel submitted the Petition before the Honourable Court was couched on three major issues: that the suit property was situated on a gazetted mangrove forest declared to be so vide Proclamation No. 44 and confirmed in the Legal Notice No. 174 of 1964, that the suit property was a fish landing jetty in use by the Petitioners and that the suit property was illegally acquired by the 2nd Respondent. Other ancillary issues raised by the Petitioners in this Petition was that the 2nd Respondent was undertaking constructions on the suit property and which if allowed to persist would dissipate the flora and fauna on the alleged mangrove region. 15. The Learned Counsel asserted that worth noting that there exists a parallel claim in case of:- ***“Mombasa ELCLC No. E012 of 2023 Consolidated with E004 of 2023 - African Gas and Oil Limited & Miritini Freeport Limited – Versus - Kahia Transporters Limited & 9 Others ex parte County Government of Mombasa & 2 Others”***, in respect of the suit subject matter of this suit - Parcel of Land L.R No. 5169/VI/MN (Title No.CR.70862 (hereinafter referred to as ‘suit property’). The above-mentioned suit sought to oust the 2nd Respondent’s proprietary rights in respect of the same suit property in this matter. The Petitioners at paragraph 37 of the Petition intimate that the 4th Petitioner was the ‘umbrella organization’ of some Beach Management units including Mkupe Beach Management Unit, Ngare Beach Management Unit and Kitanga Juu Beach Managament Unit. Mkupe Beach Management Unit was the 3rd Interested Party in ***“ELCLC No. E012 of 2023 Consolidated with E004 of 2023 - African Gas and Oil Limited & Miritini Freeport Limited – Versus - Kahia Transporters Limited & 9 Others ex parte County Government of Mombasa & 2 Others”***. 16. At paragraph 9 of the Plaint filed in the Consolidated Suit, the Plaintiffs claim that they have been using the suit property together with Ngare Beach Management Unit and Kitanga Juu Beach Management Unit until around September, 2022 when they realized that the suit property had been allegedly unlawfully beaconed and converted to private use. Therefore, the 4th Respondent herein, Mkupe Beach Management Unit, Ngare Beach Management Unit and Kitanga Juu Beach Managament Unit are one and the same thing. Mkupe Beach Management Unit filed a Replying Affidavit dated 29th September, 2023 in the Consolidated Suit supporting the Plaintiff's claim and stating at Paragraph 14 thereof that: **“THAT the Applicant (African Gas and Oil Limited and Miritini Freeport Limited) who has invested heavily on the adjacent Property and uses the said Mkupe Beach for economic value and the 3rd Interested Party have been co - existing together in harmony and are both dependent on each other for their day-to-day business.”** 1. The mischief, does not need a magnifying glass to fish out the collusion, the bad faith and the abuse of this Courts process by the Petitioners herein, the Plaintiffs and the 3rd Interested party in the Consolidated suit. They were all connected at the hip. Without prejudice to the foregoing, the 2nd Respondent is the lawful indefeasible proprietor of LR. NO. MV/VI/5169, the suit property herein, as determined at paragraph 86 of the Judgement dated 14th November, 2022 in ***“Mombasa Consolidated Petition No. 51, 52, 53,54,55 of 2019 - African Gas and Oil Limited & 4 Others – Versus - National Land Commission and Kahia Transporters”*** (hereinafter referred to as ‘the Judgement’). The Plaintiffs in the Consolidated suit precisely African Gas and Oil Limited and Miritini Freeport Limited were proprietors of LR. NO. MN/VI/4838 and LR. NO. MN/VI/4805respectively. According to page 66 of the Judgement, LR. NO. MN/VI/4838 abuts LR. NO.MN/VI/4805, whilst the suit property herein - LR. NO. MV/VI/5169 abuts LR. NO.MN/VI/4805. It is not known how every other suit in the same place with the suit property are not situated within a mangrove forest but the Suit property is. 2. The Plaintiffs in the consolidated suit were Petitioners whilst the 2nd Respondent herein was the 2nd Respondent in ***“Mombasa Consolidated Petition No. 51, 52, 53, 54, 55 of 2019 -African Gas and Oil Limited & 4 Others – Versus - National Land Commission and Kahia Transporters”***. That among the issues for determination in the above-mentioned suit, was the legality of ownership of LR. NO. MV/VI/5169 by the 2nd Respondent herein. The Honourable Court did hold at paragraph 86 of the Judgement that: ***“These Properties known as MN/VI/......, and 5169 were legally and absolutely registered in the separate names of the Petitioners and the 2nd Respondent herein”.*** 1. The issue of the legality of the Title held by the 2nd Respondent herein over LR. NO.MV/VI/5169 was Res judicata. This Court remains ‘***functus officio’*** in respect of determination of whether the 1st Defendant holds a good Title to LR. NO. MV/VI/5169 or not. In the event this Court entertains the issue, then it will be sitting on its own appeal. The implementation of the said Judgement was stayed in the Court of Appeal’s Ruling dated 27th October 2023 in ***“COACAPPL No. E001 of 2023 - National Land Commission – Versus - African Gas and Oil Company Limited & 5 Others”***. The Plaintiffs could not require this Court to nullify a Certificate of Title in respect of the suit that it once deemed to have been legally acquired. 2. Since the issues directly touching on this matter are still directly the subject of an Appeal preferred by the National Land Commission (the 5th Respondent herein) which stems from the Judgement of this Court in ***“Mombasa Consolidated Petition No. 51, 52, 53, 54, 55 of 2019- African Gas and Oil Limited & 4 Others – Versus - National Land Commission and Kahia Transporters”***. This Court cannot entertain this matter because it is *sub judice* to the Appeal. The Court in the Judgement notes at page 72, Paragraphs 86 that: **“.....Parties were given an opportunity to adduce further evidence to prove ownership, measurement and value of the land acquired by NLC...”** 1. It is a norm that when a dispute arises as to compensation of a compulsorily acquired land the first port of call has always been to determine the proprietary rights of warrying parties over the disputed parcels of land. The Court indeed discharged this mandate and determine that every parcel of land “was legally acquired and non - overlapped on each other”. It is a fact that when ***“Mombasa Consolidated Petition No. 51, 52, 53, 54, 55 of 2019-African Gas and Oil Limited & 4 Others – Versus - National Land Commission and Kahia Transporters”*** was filed in the year 2019, the Petitioners herein were aware of the 2nd Respondent's proprietorship over LR. NO. MV/VI/5169, which they did not contest, they only started contesting the ownership of the suit parcel of land after the 1st Defendant began to assert its proprietorship over the suit property by denying them ingress and use in the year 2023. This can be seen at paragraph 42 of the Petition where the Petitioners had knowledge of the alleged alienation of the suit property since the year 2017. 2. Paragraph 45 of the Petition bears the evidence that the Petitioners are haphazardly misleading the Court by stating that: **“The Petitioners state that the alienation, acquisition, sell and transfer of the suit Land was done without the knowledge of the National Land Commission (the 5th Respondent) as the custodian of public Land in Kenya and as the commission charged with the duty of Land a management and registration.”** 1. According to the Learned Counsel, the facts were stubborn. The National Land Commission who was the 1st Respondent ***“Mombasa Consolidated Petition No. 51, 52, 53, 54, 55 of 2019 - African Gas and Oil Limited & 4 Others (Supra)”*** never at any time questioned the acquisition of the suit property. In the Judgement of this Court at pages 9,10,11 and 12, Mr. Mburu F.K, the acting Director Valuation and Taxation for the National Land Commission swore a Replying Affidavit and all through the said Affidavit never contested the proprietorship of the suit property. In fact, according to paragraph 19 of the Judgement at page 11 and 12, the National Land Commission intimated that: **“....the NLC was ready to pay the Petitioners their compensation as per the award”** 1. Due to being denied access and use of the disputed property, the Plaintiffs in the consolidated suit, along with the Petitioners now collectively seek to challenge the 1st Defendant’s proprietary rights over the suit property. Of importance to the Court is the fact that the issue of the Plaintiffs' Special use licenses which now forms the pith of the consolidated suit never arose in the ***“Mombasa Consolidated Petition No. 51, 52, 53, 54, 55 of 2019 - African Gas and Oil Limited & 4 Others (Supra)”***. 2. According to the Learned Counsel, it was a fact that this Court awarded the 1st Defendant and the Plaintiffs herein a sum of Kenya Shillings One Billion Four Twenty One Million Four Fourty Thousand (Kshs. 1,421,440,000/=) and Kenya Shillings Two Billion Four Fifty Four Million Seven Fourty Six Thousand Five Hundred and Six and Fifty Eight Cents (Kshs. 2,454,746,506.58/=). The coincidence that the Petitioners and the Plaintiffs were collectively seeking to oust the 2nd Respondent’s proprietorship in respect of the suit property was telling and reeks of malice. The Court ought to avert the Petitioner's bad faith and abuse of this Court’s process, for how many times would a Court entertain similar issues to be canvassed more than once before it? It was a ground norm that a court could never allow compensation in respect of a compulsorily acquired parcel of land without first ascertaining itself of the true ownership of the said land. This was exactly what was done by this Honourable Court in ***“Mombasa Consolidated Petition No. 51, 52, 53, 54, 55 of 2019 - African Gas and Oil Limited & 4 Others (Supra)”***. 3. The Appeal preferred by the 5th Respondent in ***“Civil Appeal No. E068 of 2024 - National Land Commission – Versus - African Gas and Oil Company & 5 Others”*** against the Judgement in ***“Mombasa Consolidated Petition No. 51, 52, 53, 54, 55 of 2019-African Gas and Oil Limited & 4 Others (Supra)”*** sought the Court of Appeal to determine whether the suit parcel of land fall below the High-water mark area, whether it is a gazetted mangrove forest, whether the land is a fish landing jetty and whether the suit parcel of land was legally acquired by the 2nd Respondent. By all purpose and intent this matter is *sub judice* courtesy of Court of Appeal matter and ELC Petition No. 12 of 2022 and is a candidate of dismissal. 4. The National Land Commission had taken a back seat in the Petition. It sought to hide from this Court the fact that the suit property was under dispute in this Petition. Especially the issue of legality of its acquisition, is an issue actively being litigated in ***“Civil Appeal No. E068 of 2024 - National Land Commission – Versus - African Gas and Oil Company & 5 Others”*** among many other cases specified in the Judgement. This Court ought to refuse to be taken in a circus. It was discernable without difficulty that the issues this Court is called upon to determine are issues live before other Courts of competent jurisdictions. In a long line of decided cases, a Court is precluded from determining issues live before other Courts of competent jurisdictions to prevent embarrassment of the Court’s process because there was never a guarantee that different courts will reach to a harmonious decision. 5. This Court had had a shot at determining the issues in controversy in respect of the legality of the Title held by the 2nd Respondent to the suit property, it should then down its tools because it lacks the requisite jurisdictions to entertain the matter for the second time and dismiss the matter forthwith with costs. Without prejudice to the foregoing, the Petitioners in this Petition had not produced a beacon Certificate to back up their assertion that the suit property was found within the Boundaries of the alleged mangrove forest that was gazetted in Legal Notice No. 174 of 1964 and Proclamation Number 44 of 1932. This Court should embark on satisfying itself that the Petitioners’ Petition was solid by seeking it to establish two issues: the boundaries of the alleged mangrove forest and whether the boundaries engulf the suit parcel of land or any part of it. 6. From there, the Court could then put the 2nd Respondent on its defence and call upon it to prove that its acquisition of the suit property adhered to the laid down procedure in the land laws. The Court cannot be invited to partake in fact finding and fishing expeditions that is motivated by bad faith, abuse of Court process and the blatant ploy to prevent the 2nd Respondent from reaping the fruit of Judgement in ***“Mombasa Consolidated Petition No.51, 52, 53, 54, 55 of 2019 - African Gas and Oil Limited & 4 Others (Supra)”***. 7. The Plaintiff claims that the suit property was found below the high-water mark which issue was determined by this Court after calling four Survey reports at page 65 of the Judgement where the Court agreed that: ***“Parcels No. MN/VI/5169 and MN/VI/4805 share a common boundary along high water mark.........”*** 1. Without delving much into the Petitioner’s Petition, it is true that Legal Notice No. 174 of 1964 alludes to Proclamation Number 44 of 1932. In respect of gazetted mangrove forest the Legal Notice No. 174 of 1964 at page 362 states that: ***“Mombasa, Kilifi, Kwale, Lamu and Tana River”*** ***“Those pieces of land of approximately 11,366 acres situated between high and low water mark on the coast of Kenya, which were declared to be forest areas by Proclamation No. 44 of 1932”.*** 1. The gazetted mangrove forest can only be the area between the high and low water mark, nothing more nothing less. On a cursory look of the Deed plan attached to the 2nd Respondent's Certificate of Title on the 2nd Respondent Replying Affidavit dated 3rd November, 2024 exhibit marked as ‘OK - 2’, it was clear that the suit property had definite boundaries that was situated sixty (60) meters beyond the high-water mark. This removed the suit property from the precincts of the alleged gazetted mangrove forest which only applies to the area situated between high and low water mark on the coast of Kenya. 2. Finally, by the mere fact that the suit parcel of land is situated sixty (60) meters beyond the high-water mark, was in itself in conformity to Section 110 of the Surveys Act of 1994 and therefore the existence of the suit property as it violates no known applicable laws of the land. On the issue of purported violation of Section 45 of the Surveys Act and Regulations 110 of the Surveys Regulations, this very Court called for four (4) survey reports in ***“Mombasa Consolidated Petition No. 51, 52, 53, 54, 55 of 2019 - African Gas and Oil Limited & 4 Others (Supra)”***. Then Court after elaborate analysis of all the Survey reports including one done by the NLC concluded as captured in clause 15 above. The Court did deal with the issue of whether proper survey procedure was followed. It gave parties a proper opportunity to present relevant documents relating to LR.NO. MN/VI/4838, LR. No. MN/VI/4805 and the suit property. No surveying irregularity was identified in respect to the Suit property. This Court did agree and adopted all the survey reports as part of its Judgement and it is estopped from turning around from its Judgement. 3. The Petitioners had presented to this Court that it uses the suit property as a fish landing jetty. The truth was that the Petitioners sought to take over the suit property as their own private property. As could be seen from the minutes attached to the Affidavit in support of the Petition, it could be seen that the Petitioners was actively lobbying the Mombasa County Government to allocate the parcel of land to them. They indeed want the 2nd Respondent’s Certificate to be cancelled before being allocated to them. 4. The Learned Counsel relied on the following issues for determination:- 5. **Whether this Petition is Res Judicata;** 6. **Whether this Petition is *sub - judice*; and** 7. **Who bears the cost of the suit** 8. On whether this Petition is res judicata, the Learned Counsel relied on the Black’s law Dictionary 10th Edition which defines “*res judicata*” as:- **“An issue that has been definitely settled by judicial decision…..the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties......”** 1. The term *Res* *Judicata* is well defined under the provision Section 7 of the Civil Procedure Act, Cap. 21 which provides as follows: - **“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”** 1. This Honourable Court had developed the thresholds through which a matter before a Court of law could be rendered to be Res Jusdicata. This was done in the case of ***“Margaret Wanjiku Henry – Versus - Road Touch Services [2022] eKLR”*** where the Honourable Court set out the following ‘threshold’ that one claiming that a matter is *Res Judicata* must prove: - **“i. That the issue raised in the subsequent suit was directly and substantially in issue in the former suit. In other words, it must be demonstrated that the two suits raise similar issues for determination.** **ii. That the former suit was between the same parties or parties under whom they or any of them claim, or that those parties were litigating under the same title.** **iii. The issue in question was heard and finally determined in the former suit.** **iv. The competency of the court.”** 1. The Honourable Court ought to bear in mind the words in ***“Independent Electoral &Boundaries Commission – Versus - Maina Kiai & 5 Others (2017) eKLR”*** held that: - ***“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”*** 1. In respect of the first threshold, it was their submission that this Petition sought to contest or oust the 2nd Respondent’s proprietary Rights over LR. NO. MV/VI/5169. At the heart of this Petition, the ownership of the suit property had been challenged. They submitted that this matter was conclusively determined in the previous suit being ***“Mombasa Consolidated Petition No. 51, 52, 53, 54, 55 of 2019 - African Gas and Oil Limited & 4 Others”*** thereof found that: ***84' The ownership of the Land acquired by the NLC has been called to question. Kahia, the 2nd Respondent herein in its reply to the Petition claimed that its land overlapped that of the Petitioners’ land and its land are one and the same parcel of land. Fundamentally, this Honourable Court cannot casually wish away the allegations by the 2nd Respondent. These are serious matters of law and falls into the four corners of the Jurisdiction of this Court. It’s a claim which is not by any means frivolous or vexatious. Indeed, to this effect, the 2nd Respondent also filed a counterclaim/Cross Petition. This being a Constitutional Petition, I could have struck out the counterclaim for not conforming to the legal substratum of the famous case of “Anarita Karimi Njeru -Versus- Republic (1979) eKLR. However, I have been hesitant being guided by the provision of Article 50 and Article 159(c) of the Constitution of Kenya, 2010 I will give the interested party leave to amend its claim accordingly and the other parties can file their responses appropriately.*** ***85' As part of the Petitioners' claim is that their rights under Article 40 have been violated, denied and infringed. Taking into consideration the ownership of the land has been challenged, wouldn't it be an injustice if NLC compensates them and later it is found that the land actually did not belong to them?............*** ***86' For justice to be met, this Court has held that the ownership conundrum must be determined first, at least this issue was now determined through the land surveying exercise. Parties were given an opportunity to adduce further evidence to prove ownership, measurement and value of the land acquired by NLC. While doing so, Court took cognizance to the fact that the provisions of Article 25 of the Constitution stipulates that the right to a fair trial may not be limited. From the detailed Surveyors reports, the Honourable Court is extremely pleased to note that all of them arrived at similar, uniformed and common conclusion with regards to the suit properties herein.*** ***In summary they concluded that:*** ***“These Properties known as MN/VI/4805, 4948, 4838, 3827, 3916 and 5169were legally and absolutely registered in the separate names of the Petitioners and the 2nd Respondent herein.................*** 1. It was a fact that ownership in respect of the suit property was heard and determined on merit and a Judgement made. The execution of the said Judgement was stayed in the case:- ***“COACAPPL No. E001 of 2023 - National Land Commission – Versus - African Gas and Oil Company Limited & 5 Others”***. It was later appealed in ***“Civil Appeal No. E068 of 2024 -National Land Commission – Versus - African Gas and Oil Company & 5 Others”*** and it is pending hearing and determination. Therefore, this Petition is *Res judicata* as the issues raised have been heard and determined and have not been set aside. 2. On the second issue of whether this Petition is between similar parties as the previously decided Petition. They submitted that the Petitioners were surrogates of the Petitioners in the previous Petition and Plaintiffs in the Consolidated Suit. The Petitioners at Paragraph 37 of the Petition states that the one of the members of the 4th Petitioners is Mkupe Beach Management. In Mkupe Beach Management’s Replying Affidavit dated 29th September, 2023 filed in the Consolidated Suit where they are supporting the Plaintiff's claim (African Gas and Oil Limited and Miritini Freeport Limited) who were the Petitioners in ***“Mombasa Consolidated Petition No. 51,52,53, 54, 55 of 2019 - African Gas and Oil Limited & 4 Others (Supra)”***, they state at Paragraph 14 thereof that: ***“THAT the Applicant (African Gas and Oil Limited and Miritini Freeport Limited) who has invested heavily on the adjacent Property and uses the said Mkupe Beach for economic value and the 3rd Interested Party have been co- existing together in harmony and are both dependent on each other for their day-to - day business.”*** 1. One thing is certainly clear here, the Petitioners was gatekeeping for African Gas and Oil Limited and Miritini Freeport Limited who when they became unsuccessful in ousting the 2nd Respondent's proprietary rights over the suit property in ***“Mombasa Consolidated Petition No. 51, 52, 53, 54, 55 of 2019 - African Gas and Oil Limited & 4 Others (Supra)”*** have now found a way of re litigating behind the scenes. It was for this reason that the Court ought to find that the Petitioners herein was surrogates of African Gas and Oil Limited and Miritini Freeport Limited. 2. There was a special relationship between the Petitioners, African Gas and Oil Limited and Miritini Freeport Limited. They had been supporting each other, co - existing in harmony in their day -to - day business. Precisely, African Gas and Oil Limited and Miritini Freeport Limited run pipelines through the suit property as revealed in the Consolidated Suit whilst the Petitioners allegedly use the suit property as a fish landing site. The matrix was clear they have devised means to disparage the ownership of the suit property and was willing to re litigate an issue that was decided on merit and there exists a Judgement that had not been overturned. 3. They sought to rely in the case of ***“Salama Beach Hotel Limited & 3 others – Versus - Christopher Orina Kenyariri t/a Kenyariri and Associates Advocates [2019] eKLR”*** the Court of Appeal at paragraph 39 held that: ***“Similarly, Chitembwe, J. in declining to stay the taxation proceedings found that the issue of taxation and costs had been conclusively determined. Accordingly, we concur with the following findings by the learned Judge:*** ***Angote, J. had directed the respondents herein who were the clients of the Applicant to place all the necessary material before the taxing master for the same to be taken into account during taxation. Any attempts to introduce evidence of alleged payments through this suit is indeed an abuse of the court process and in breach of the res judicata principle. Litigation must come to an end and attempts to litigate the same issues through surrogates cannot be accepted by the court.*** ***The introduction of the 3rd Respondent as a Plaintiff in this matter does not change the design of the respondents’ claim. The fact that the respondents' claim is res judicata cannot be upset by bringing on board the 3rd Respondent. Litigating a concluded matter under surrogates or uploading more parties to a claim does not change the conclusion already reached by the court in the former trial. In any case, the 3rd Respondent was a party at some point in the taxation proceedings. The 3rd Respondent is therefore not a new party as such....*** ***Applying the stated law to the facts before me, it is clear that the respondents ought to have placed before the taxing master the evidence of the alleged payment of some money to the Applicant by the 3rd Respondent so that the amount could be taken into account during the taxation. The said payment was allegedly made on behalf of the 1st, 2nd and 4th Respondents who were parties to the taxation proceedings and they must have been aware of such payments. Their attempt to claim a refund of the alleged payments through these proceedings amounts to reopening a matter that was adjudicated and determined by a court of competent and concurrent jurisdiction. In fact it is an attempt to appeal against the decision of Angote, J. The taxation of the bills of costs between the Applicant and the respondents is a matter that has been settled.*** ***I am therefore in agreement with the Applicant that this suit touches on issues that have been litigated before a competent court by the same parties. This suit run afoul of Section 7 of the CPA. The Applicant's prayer that this court finds that this suit is res judicata is allowed. This suit is struck out with costs to the Applicant/Defendant.*** 1. The Honourable Court ought to ‘smell the coffee’ and discern that African Gas and Oil Limited and Miritini Freeport Limited had taken a silent role in this matter where they are using close allies/representatives to re litigate a matter that had been heard and concluded. 2. On whether this Petition is *sub judice*, the Learned Counsel submitted that when this Court rendered the Judgement dated 14th November 2022 in ***“Mombasa Consolidated Petition No. 51, 52, 53, 54, 55 of 2019 - African Gas and Oil Limited & 4 Others (Supra)”***. the National Land Commission sort stay of execution and it was granted in ***“COACAPPL No. E001 of 2023 -National Land Commission – Versus - African Gas and Oil Company Limited & 5 Others”***. They later appealed it in ***“Civil Appeal No. E068 of 2024 - National Land Commission – Versus - African Gas and Oil Company & 5 Others”***. 3. According to the Learned Counsel, the main objects in the substantive Appeal are that the National Land Commission sought to oust the proprietary rights of the 2nd Respondents among others issues. Precisely, ground number 15(a), (b), (c) and (d) in the Memorandum of Appeal dated 5th April 2024 states that: 4. **The land falls below the High high-water mark of the Indian Ocean which constitutes public land not available to allocation under Article 62 of the Constitution.** 5. **The Land is a gazetted mangrove forest** 6. **The land is a fish landing jetty** 7. **The issues of ownership, legality and proprietary of the land are still active and pending hearing before the Environment and Land Court in Mombasa ELC Petition No. 12 of 2022and Mombasa ELC Case No. E012 of 2023.** 8. The truth of the matter is that the above issues are the exact issues to be determined by this Honourable Court in this Petition and in the Consolidated suit. Can two different Courts reach to a similar decision? They submitted that two different Courts can reach two different decisions that can bring this Court’s good name to disrepute and embarrass its process. 9. They sought to place reliance in the case of:- ***“Kenya National Commission on Human Rights – Versus - Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) {2020} eKLR”*** where the Court ruled that: - ***“[67] The term ‘sub-Judice’ is define a in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them*** ***over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit”.*** 1. The Court above went ahead to establish the principles through which a matter can be rendered to be *sub* *judice* as follows: ***“A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”*** 1. Evidently, ***“Civil Appeal No. E068 of 2024 - National Land Commission – Versus - African Gas and Oil Company & 5 Others”*** was initiated before this Petition and the Consolidated Suit. As established before, the Petitioners herein were surrogates of the Plaintiffs in the Consolidated Suit and the previous determined Petition. 2. It behooves this Court to stay this matter pending the determination of ***“Civil Appeal No. E068of 2024 - National Land Commission – Versus - African Gas and Oil Company & 5 Others”***. 3. On who bears the costs of the suit. The Learned submitted that it was trite that costs follow the cause. They had proven and established that this Petition is *Res Judicata* - it was filed by surrogates of the Petitioners in ***“Mombasa Consolidated Petition No. 51, 52, 53, 54, 55 of 2019 - African Gas and Oil Limited & 4 Others (Supra)”*** in respect same subject matter which is the suit property herein. We have also proved that this Petition is *sub - judice* because it was filed after ***“Civil Appeal No. E068 of 2024 - National Land Commission – Versus - African Gas and Oil Company & 5 Others”***. 4. In conclusion, the Learned Counsel submitted that they urged the Court to strike out this Petition on the strength that it is both *Res* *Judicata* and *sub judice.* Sanity must be brought back to your esteemed Court. Mkupe Beach Management unit are on record in the Consolidated suit stating that they co - operate with African Gas and Oil Limited and Miritini Freeport Limited in their day - to - day business. Mkupe Beach Management are undeniably members of the 4th Petitioner herein. These Petitioners my Lord are henchmen of African Gas and Oil Limited and Miritini Freeport Limited. It should come out clearly that they are doing the bidding of African Gas and Oil Limited and Miritini Freeport Limited and such terms re - litigating the ownership of the suit property. The issues attendant to this Petition were the same ones attended to in the Appeal being ***“Civil Appeal No. E068 of 2024 - National Land Commission – Versus - African Gas and Oil Company & 5 Others”***. The Appeal took off before this suit was initiated. This renders the instant Petition as *sub - judice* to the Appeal. The law demands that this suit be stayed pending determination of the Appeal. **VII. Analysis and Determination** 1. I have carefully considered all the filed pleadings pertaining to the Petition dated 26th October, 2021, the Affidavits by the Petitioner and the Interested Parties, the articulate written submissions by the Petitioner, the cited authorities, the appropriate provisions of the Constitution of Kenya, 2010 and the statures. 2. For the Honorable Court to reach an informed, just, fair and reasonable decision, it has condensed the Subject matter into the following three (3) salient issues for its determination. These are:- 3. ***Whether the Petitioners had “Locus Standi” to institute the Petition.*** 4. ***Whether the Petition by the Petitioners meets the threshold for Constitution Petition.*** 5. ***Who should bear the costs of the Petition?*** ***ISSUE No. a). Whether the Petitioners had locus standi to institute the Petition?*** 1. Under this sub‑title, the Honourable Court shall examine whether the Petitioners were properly clothed with the legal standing and/or capacity ***(“Locus Standi”***) to bring the Petition before this Court. This court finds such a restrictive interpretation of standing to be at odds with the transformative nature of the 2010 Constitution. The issue that immediately arises is the need to comprehend what locus standi is and why it is important for a court to satisfy itself as to locus standi. 2. Upon the promulgation of the Constitution in 2010, the concept of locus standi received a wider spectrum courtesy of Article 3(1) as read with Articles 22 and 258 of the Constitution. The said provisions allow every person the leeway to defend the Constitution and to institute Court proceedings to protect a right or fundamental freedom or the Constitution itself. In the case of:- ***“Michael Osundwa Sakwa – Versus - Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR”*** the Court while referring to ***“the matter of Ms. Priscilla Nyokabi Kanyua – Versus - Attorney General & Interim Independent Electoral Commission Nairobi HCCP No. 1 of 2010”*** held as follows: - ***“……In Kenya the Court has emphatically stated that what gives locus standi is a minimal personal interest and such interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population….”*** 1. The Black’s Law Dictionary, 9th Edition defines **“Locus Standi”** at page 1026 as follows: - **“The right to bring an action or to be heard in a given forum”.** 1. The Supreme Court has on numerous occasions discussed the meaning and implication of locus standi. In the case of:- ***“Khelef Khalifa El-Busaidy – Versus - Commissioner of Lands & 2 Others [2002] eKLR”*** the Apex the Court Observed as follows:- ***“……for an individual to have a locus standi, he must have an interest either vested or contingent in the subject matter before the court, which interest must be a legal one. Such interest must be above that of other members of the public in general.”*** 1. The Court of Appeal has also weighed in on the topic. In Mombasa Civil Appeal No. 75 of 2016, ***“Juletabi African Adventure Limited & another – Versus - Christopher Michael Lockley [2017] eKLR”*** the Court referred to its earlier decision in ***“Alfred Njau & 5 others – Versus - City Council of Nairobi [1983] eKLR”*** where locus standi was described as follows: ***“The term locus standi means a right to appear in Court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.”*** 1. The only circumstances where the strict application of locus standi is waived is in Constitutional and Human Right Petitions. Under the provision of Articles 21, 22, 23, 258 and 260 of the Constitution widens the scope of ‘persons’ who can move the court to protect the Constitution or human rights and fundamental freedoms. 2. In the “***Civil Application 29 of 2014, Mumo Matemu – Versus - Trusted Society of Human Rights Alliance & 5 others [2014] eKLR”*** the learned Supreme Court Judges spoke to wide scope of locus standi in constitutional petitions as follows; ***“ (28) It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the Constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some special interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the Constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22 (3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28th , June 2013 – The Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013–which, in view of its long title, we take the liberty to baptize, the “Mutunga Rules”, to inter alia, facilitate the application of the right of standing. Like Article 48, the overriding objective of those rules is to facilitate access to justice for all persons. The rules also reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated or infringed or threatened has a right of standing and can institute proceedings as envisaged under Articles 22 (2) and 258 of the Constitution.*** ***(29) It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision, or without authority of law, and such person or determinate class of persons is, by reason of poverty, helplessness, disability or socio-economic disadvantage, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution.*** ***(30) It is our consideration that in filing the petition the 1st respondent was acting not only on behalf of its members and in accordance with its stated mandate, but also in the public interest, in view of the nature of the matter at hand. The 1st respondent, its members and the general public were entitled to participate in the proceedings relating to the decision-making process culminating in the impugned decision.”*** 1. It further defines “person” to “include a company, association or other body of persons whether incorporated or unincorporated.” The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, adopts the constitutional definition of person. Article 258(1) in turn provides that “every person has the right to institute court proceedings, claiming that this Constitution has been contravened or is threatened with contravention.” In constitutional adjudication therefore, the traditional strictures of locus have been broken to allow every person the capacity to file a constitutional claim. As held in ***“Commission for Human Rights & Justice – Versus - Mwakubo & 5 others KEELC 15710 (KLR)”***, the definition of a “person” under Article 260 includes an association or other body of persons, and a registered NGO has the capacity to enforce the Bill of Rights. 2. A common thread that runs through the pronouncements of various Courts is the fact that locus standi is widened with respect public interest litigation. The same standard equally apply to private constitutional litigation as long as the dispute raises at least a constitutional issue. In this case, the Petitioners comprised Human rights organizations (Commission for Human Rights and Justice, Sheria Na Haki Human Rights Institute, Ujamaa Centre), Environmental watchdogs (Active Environmental Team), and Community‑based units (Portreitz Beach Management Units Network, representing fishermen and local communities). They invoked Articles 22 and 258, expressly stating they acted in the public interest and on behalf of communities whose access to the foreshore and mangrove ecosystem had ostensibly been curtailed. 3. This is analogous to the principle applied in ***“Khaemba Contractors – Versus - Sun King Co Ltd & 2 Others (Constitutional Petition E013 of 2023)”***, where the Petitioner brought a claim on behalf of his wife, Florence Nangila, relying on Article 22(2)(d) to establish standing through association membership. The Court recognized that locus standi may be grounded in representative or associative capacity, provided the constitutional provisions are invoked and the claim is properly pleaded. 4. The provision of Article 22 of the Constitution is on the enforcement of the Bill of Rights and essentially deals with the aspect of locus standi. Sub-Article 1 gives a person the right to institute Court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. Sub-Article 2 covers instances where such proceedings may be brought on behalf of a party. It states as follows: - **In addition to a person acting in their own interest, Court proceedings under clause (1) may be instituted by –** **a. a person acting on behalf of another person who cannot act in their own name;** **b. a person acting as a member of, or in the interest of, a group or class of persons;** **c. a person acting in the public interest; or** **d. an association acting in the interest of one or more of its members.** 1. The Petitioners invoked Articles 22 and 258, expressly stating they acted in public interest and on behalf of local fishermen and communities deprived of access to the foreshore. The Petition raised constitutional questions regarding violation of Articles 42, 62, 67, and 69, supported by affidavits, annexures, survey maps, and documentary evidence. The Respondents’ objection that the Petitioners lacked standing is untenable in light of the Constitution’s broad provisions and the jurisprudence cited. 2. Notwithstanding the final decision in this Judgement, the Honourable Court is satisfied that the Petitioners were not mere busybodies but entities with legitimate mandates to protect human rights, environmental integrity, and public land. Their participation enhances constitutionalism and ensures accountability in land governance. By bringing this Petition, they gave voice to marginalized communities whose livelihoods and environment were threatened by unlawful alienation. 3. The Honourable Court finds that the Petitioners had locus standi to institute the Petition. They acted within the framework of Articles 22 and 258 of the Constitution, in defence of constitutional rights and in the public interest. ***ISSUE No. b). Whether the Petition by the Petitioners meets the threshold for Constitution Petitions.*** 1. Under this Sub heading, without prejudice to the foregoing, the Honourable Court shall proceed to respond to this query, assessing certain aspects of the concept of Constitutional provision are inevitable. To begin with, under the provision of Article 2 (1) & (4) of Constitution of Kenya defines the Constitution as being the Supreme law of the Republic and it bids all persons and all States at all levels. Any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency and any act or omission in in contravention of this Constitution is invalid. 2. Additionally, I dare say that a Constitution is a living tissue. Just like all other tissues, it has to be fed and watered. It breathes without oxygen and freshness it will die. I have learnt that these things are not just metaphorical. They are real. As a matter of course, the Constitution of Kenya under Article 259 (1) provides a guide on how it should be interpreted as such:- 3. **Promotes its purposes, values and principles;** 4. **Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;** 5. **Permits the development of the law; and** 6. **Contributes to good governance……”** 7. This Court is therefore enjoined to give a liberal interpretation to constitutional provisions, having regard to the language and wording of the Constitution, and to interpret it as a whole with all provisions sustaining and coordinating each other. 8. Based on the principles set out in the edit of the Court of appeal case of the ***“Mumo Matemu – Versus – Trusted Society of Human Rights Alliance & Another (2013) eKLR”*** provided the standards of proof in the Constitutional Petitions as founded in the case of ***“Anarita Karimi Njeru – Versus - Republic [1980] eKLR 154”*** where the court is satisfied that the Petitioner’s claim were well pleaded and articulated with absolute particularity. It held:- ***“Constitutional violations must be pleaded with a reasonable degree of precision…………”*** ***Further, in the “Thorp – Versus – Holdsworth (1886) 3 Ch. D 637 at 639, Jesse, MR said in the year 1876 and which hold true today:*** ***“The whole object of pleadings is to bring the parties to an issue and the meaning of the rule……was to prevent the issue being enlarged which would prevent either party from knowing when the cause came on for trial what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues and thereby diminish expense and delay especially as regards the amount of testimony required on either side at the hearing.”*** 1. Article 23 (3) of the Constitution empowers this Court to grant appropriate reliefs in proceedings brought under Article 22 where there has been violation or threat of violation of a fundamental right or freedom. Reliefs may include declarations, conservatory orders, injunctions, compensation, or judicial review orders. 2. Stating the provisions of the Constitution alleged to have been violated is only part of the task. Establishing that the right claimed exists and linking the alleged violation to specific acts or omissions of the Respondents is the next step. Turning to the present Petition, the Petitioner invoked Articles 42, 47, 62, 67, 69, and 70 of the Constitution, among others. These provisions relate to the right to a clean and healthy environment, fair administrative action, classification of public land, obligations of the state in respect of land and environment, and enforcement mechanisms. The Petitioners particularized that the suit property, gazetted as mangrove forest and foreshore land, was illegally excised and registered as private property by the 3rd and 4th Respondents, then transferred to the 1st and 2nd Respondents. They described the encroachment, deprivation of fishermen’s landing sites, lack of public participation, and destruction of aquatic breeding grounds. 3. The Petitioners prayed for a flurry of declarations including that the alienation was unconstitutional and void ab initio, cancellation of the title, injunctions restraining further encroachment, and conservatory orders preserving the ecosystem. The pleadings were supported by affidavits, annexures including legal notices, survey plans, photographs, minutes of meetings, and correspondence with statutory bodies. 4. Under the provision of Articles 22(1) and 258(1), every person has the right to institute proceedings claiming violation of rights or contravention of the Constitution, either in their own interest, on behalf of others, or in the public interest. The Petitioners, being human rights and environmental watchdogs, claimed to have been acting in public interest on behalf of local communities and fishermen. 5. This aligns with jurisprudence in ***“Trusted Society of Human Rights Alliance – Versus - Attorney General & 2 Others [2012] eKLR”***, where the Court recognized the legitimacy of public interest litigation in safeguarding constitutional values. The Petitioners’ role as guardians of environmental and human rights interests therefore squarely fits within the constitutional framework for public interest litigation. 6. Be that as it may, the Court finds that although the Petitioners identified some few relevant constitutional provisions and a described the manner of violation but hold that the nature of the disputes before it are absent of a clear constitutional dimensions. Essentially, the Petitioners are seeking for the following remedies: 1. Declaration that LR 51691/VI/MN (Title No. CR 70862) is public land forming part of a gazetted mangrove forest and foreshore, not available for private alienation. 2. Cancellation of Title issued to the 1st Respondent and transferred to the 2nd Respondent, with reversion to public ownership under the custody of the National Land Commission. 3. Permanent Injunction restraining the Respondents, their agents, or servants from encroaching, developing, or interfering with the suit property. 4. Conservatory Orders preserving the mangrove ecosystem and foreshore for present and future generations. 5. Restoration Orders compelling the Respondents to remove unlawful structures and rehabilitate the degraded mangrove area. 6. Ancillary Orders directing statutory bodies such as NEMA, the Kenya Forest Service, and the National Land Commission to enforce environmental and land‑use laws in respect of the suit property. 7. Ordinarily, these remedies should be the ones to be pursued by way of a Plaint. It entails rectification under the provision Section 80 ( 1 ) & ( 2 ) of the Land Registration Act, No. 3 of 2012, or complaint to the National Land Commission under the provision of Article 67 ( 1 ) & (2) of the Constitution. The Petition, therefore, risked being an ordinary civil dispute clothed in constitutional language contrary to “***the*** ***Doctrine of Constitution Ripeness or Avoidance”***. 8. In saying so, the Honourable Court wishes to deliberate on this doctrine of Constitutional Avoidance indepth and through precedents. The Supreme Court in the case of ***“Communications Commission of Kenya & 5 others – Versus - Royal Media Services Limited & 5 others [2014] eKLR”*** defined the doctrine of Constitutional Avoidance as follows:- ***“The Appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S – Versus - Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]: “I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”(emphasis by the Learned Counsel).*** 1. Similarly, the Supreme Court also citedthe case of ***“Ashwander – Versus - Tennessee Valley Authority, 297 U.S.288,347 (1936)”*** where the U.S Supreme Court held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of. Similarly, in the case of ***“KKB******– Versus - SCM******&******5 others (Constitutional******Petition 014 of 2020) [2022] KEHC 289 (KLR) (22 April 2022) (Ruling)”*,** Mativo, J.(as he then was) had this to say about the doctrine: ***“In summation, the doctrines of ripeness and constitutional avoidance shun to deal with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. In other words, a constitutional issue is not ripe for determination until the determination of the constitutional issue is the only course that can give the litigant the remedy he seeks. Both constitutional avoidance and ripeness avert the determination of the constitutional issues until it becomes very necessary to the extent that it is the only course available to assist the litigant’s cause……..The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis.”*** 1. It was clear from the above that the doctrine was only applicable where the Petitioner had an alternative remedy to constitutional reliefs. The rationale behind the doctrine was that the Bill of Rights is applicable to all legal disputes and this necessitates the establishment of a mechanism that ensures not every legal dispute will have sought constitutional remedies which should only be reserved for more serious matters. In the case of:- ***“Communications Commission of Kenya & 5 others (Supra)”*** cited above the Supreme Court held:- ***“in Ashwander – Versus - Tennessee Valley Authority the U.S. Supreme Court held that it would not decide a constitutional question which was properly before it if there was also some other basis upon which the case could have been disposed of. {Currie and de Waal} opine that the principle of constitutional avoidance is of crucial importance in the application of the Bill of Rights. The author's state: - “When applying the Bill of Rights in a legal dispute, the principle of avoidance is of crucial importance. As we have seen, the Bill of Rights always applies in a legal dispute. It is usually capable of direct or indirect application and, in a limited number of cases, of indirect application only. The availability of direct application is qualified by the principle that the Bill of Rights should not be applied directly in a legal dispute unless it is necessary to do so.” (emphasis by the Learned Counsel)*** 1. Lenaola, J had this to say in ***“Uhuru Muigai Kenyatta – Versus - Nairobi Star Publications Limited [2013] eKLR”*** ***“I need say no more. Where there is a remedy in Civil Law, a party should pursue that remedy and I say so well aware of the decision in Haco Industries (supra) where the converse may have been expressed as the position. My mind is clear however that not every ill in society should attract a constitutional sanction and as stated in AG – Versus - S.K. Dutambala Cr. Appeal No.37 of 1991 (Tanzanian Court of Appeal), such sanctions should be reserved for appropriate and really serious occasions. The complaint in this case is not so serious as to attract Constitutional sanction.”*** 1. The seriousness of the right to property was so much so thatJOukoP had this to say in the Court of Appeal case of ***“Elizabeth Wambui Githinji & 29 others – Versus - Kenya Urban Roads Authority & 4 others [2019] eKLR”***; ***“Just as the sanctity of a person's property in the English common law was recognized in the famous dictum that “an Englishman’s home (or occasionally, house) is his castle and fortress”, the Constitution and land laws in Kenya protect, as fundamental the right to acquire and own property of any description; and in any part of Kenya....”*** For emphasis, he cited **William Pitt,1st Earl of Chatham** who stated that; **“The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail-its roof may shake-the wind may blow through it-the storm may enter-the rain may enter-but the King of England cannot enter.”** He stated further that:- ***“In Kenya the attachment to land is passionate, emotional and almost fanatical. Nations, neighbours, siblings, spouses and even strangers fight over land. In some instances, the disputes degenerate into bloodshed and death.”*** He echoedthe sentimentsoftheCourt inthe case of:- ***“Gitamaiyu Trading Company Ltd******– Versus - Nyakinyua******Mugumo Kiamban Co. Ltd & 11 others Civil Appeal No. 84 of 2013”*,** where it was statedthat; ***“Land, no doubt, is not only the most important factor of production but also a very emotive issue in Kenya. Land remains the most notable source of frequent conflicts between persons and communities.”*** Inthe case of:- ***“Rutongot Farm Limited – Versus - Kenya Forest Service & 3 others [2018] eKLR”*,** the court expressed that:- ***“once proprietary interest has been lawfully acquired, the guarantee to protection of the right to property under Article 40 of the Constitution is then expressed in the terms that no person shall be arbitrarily deprived of property. The same guarantee existed in Section 75 of the repealed Constitution.” (emphasis by the Learned Counsel).*** Similar sentiments were echoed in the case of:- ***“Chemei Investments Limited – Versus - The Attorney General & Others Nairobi Petition No. 94 OF 2005 at para.64”***, where the Court held; ***“The Constitution protects a higher value, that of integrity and the rule of law (emphasis by the Learned Counsel). These values cannot be side stepped by imposing legal blinders based on indefeasibility. I therefore adopt the sentiments of the court in the case of Milankumar Shah and 2 others vs. City Council of Nairobi & Attorney General (Nairobi HCC Suit No. 1024 of 2005 (05)where the Court stated as follows, "we hold that the registration of title to land is absolute and indefeasible to the extent, firstly, that the creation of such title was in accordance with the applicable law and secondly, where it is demonstrated to a degree higher than the balance of probability that such registration was procured through persons or body which claims and relies on that principle has not himself or itself been part of a cartel (emphasis added) which schemed to disregard the applicable law and the public interest.”*** In South Africa, the case of:- ***“S – Versus - Mhlungu, 1995 (3) SA 867 (CC)”*** before the Constitutional Court, Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]: ***“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”*** 1. Suffice it to say, from the foregoing, therefore, the instant Petition herein not only fails to meet the constitutional threshold as required under ***“Anarita Karimi Njeru (Supra)”*** and ***“(Mumo Matemu case (Supra)”*** but also offends the Doctrine of Constitution Avoidance. On the record, from the remedies sought, the Petition particularly veered into challenging the legal validity of the Certificate of Title of the suit land the suit property, LR 51691/VI/MN (Title No. CR 70862) urging for its cancellation without invoking the provisions of Article 40 ( 1 ) & (2) of the Constitution, 2010 and Sections 24, 25 , 26 ( 1 ) & ) and 80 ( 1 ) & 2 ) of the Land registration Act, No. 2012. The meaning and intent of the Article 40 (3) of the Constitution. Article 40, reads in part as follows: **40. (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property––** **(a) of any description; and** **(b) in any part of Kenya.** **(2) Parliament shall not enact a law that permits the State or any person—** **(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or** **(b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27 (4).** **(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—** **(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or** **(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—** **(i) requires prompt payment in full, of just compensation to the person; and** **(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.** 1. Hence, for this singular but fundamental reason, the Petition was vulnerable to dismissal for offending the Doctrine of Constitution Avoidance. The Petitioners may consider instituting did not demonstrate with precision how the Respondents’ acts violated the cited constitutional provisions, nor did they provide documentary evidence to establish legal interest in the suit property. 2. In the circumstances, this Court finds that the Petition, as framed, did not meet the constitutional threshold for a constitutional Petition under the principles in ***“Anarita Karimi Njeru (Supra)”*** and ***“Mumo Matemu (Supra)”***. It is procedurally and substantively defective, and the issues raised are more appropriately pursued through statutory remedies under the Land Registration Act or before the National Land Commission. 3. Based on the fore going, the Honourable Court discern that the Petition fails to meet the threshold for Constitutional Petitions as established in ***“Anarita Karimi Njeru (Supra)”*** and reaffirmed in ***“Mumo Matemu (Supra)”***. It does not set out with reasonable precision the constitutional provisions allegedly violated, the manner of violation, and the reliefs sought. Therefore the Petition is improperly before this Court as the Court is not seized of jurisdiction under Articles 22, 23, 165, and 258 of the Constitution, Section 13 of the Environment and Land Court Act, No. 19 of 2012, Sections 24, 25 and 26 of the Land Registration Act, No. 3 of 2012. Thus it is hereby dismissed. ***ISSUE No. c). Who should bear the costs of the Petition.*** 1. Under this sub‑title, the Honourable Court shall examine the question of costs, namely whether the Petitioners, Respondents, or any other party should bear the costs of the Petition. It is now well established that the issue of Costs is the discretion of Courts. According to the Black Law Dictionary, **“Cost**” is defined to mean:- ***“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”*.** The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. 2. By the events, it means the results or outcome of any legal action or proceedings thereafter. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and fundamental Freedoms practice and Procedure Rules 2013) provides: - ***“(1) The award of costs is at the discretion of the Court.*** **(2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.”** 1. In the case of ***“Reids Heweet & Company – Versus - Joseph AIR 1918 cal. 717”*** and ***“Myres – Versus - Defries (1880) 5 Ex. D. 180”***, the House of the Lords noted: - ***“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it…..”*** 1. Further, these legal principles were upheld in the Supreme Court case of ***“Jasbir Rai Singh – Versus – Tarchalans Singh, (2014) eKLR”*** and the Court of Appeal cases of ***“Cecilia Karuru Ngayu – Versus – Barclays Bank of Kenya & Ano. (2016) eKLR”*** the Courts held: - ***“……….the basic rule on attribution of costs is that costs follow the event…..it is well recognized that the principles costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in presenting or defending the case”.*** 1. The court retains discretion to depart from the general rule and may deny costs where public interest, constitutional litigation, or equitable considerations justify such departure. In constitutional or environmental matters brought in the public interest, courts often order each party to bear its own costs to avoid discouraging bona fide litigants. See ***“Kenya Bus Services Ltd & 2 others – Versus - Attorney General & 2 others [2005] eKLR”***; ***“Okiya Omtatah Okoiti – Versus - Attorney General & another [2020] eKLR”***. The Court notes that where a claim is found to be frivolous, vexatious or brought in bad faith, courts may award costs against the Claimant to deter abuse of process. 2. In the instant case, the Petitioners having sought a flurry of remedies from this Court, of which most of them would have a drastic and negative impact on the sanctity of the Certificate Title Deed issued to the 1st Respondent and subsequently transferred to the 2nd Respondent, in the given circumstances, the Honourable Court finds it fair, reasonable and Equitable that each party bear their own costs whatsoever. 3. **Conclusion and Disposition** 4. Consequently, having caused an indepth analysis to the framed issues on the subject matter herein, the Honourable Court disposes itself as follows:- 5. **THAT Judgement be entered having the Petition dated 15th June, 2023 by the Petitioners be and is hereby dismissed in its entirety for offending the Doctrine of Constitution avoidance.** 6. **THAT in contravention to the Doctrine of Constitution Avoidance, the Constitutional Petition primarily raised an issue of challenging the validity of Certificate of Title Deed to the suit property known as LR 51691/VI/MN (Title No. CR 70862) to wit that it was public land forming part of a gazetted mangrove forest and foreshore under Article 62(1)(i) and (g) of the Constitution a dormain of subject matter to be entertained and dealt with in an ordinary suit.** 7. **THAT the Petitioners are granted liberty to pursue any appropriate statutory or civil remedies available to them, including but not limited to proceedings under the provisions of Article 40 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010, Sections 24, 25 and 26 ( 1 ) & and ( 2 ) and 80 ( 1 ) & ( 2 ) of the Land Registration Act, No. 3 of 2012 in an ordinary suit or lodging a complaint before the National Land Commission under the provision of Article 67 ( 1 ), (2) ( 3); 68 ( c) ( v) of the Constitution of Kenya, 2010 & Section 14 of the NLC Act, which gives it power to review all Grants of Public Land to confirm their proprietary legal position.** 8. **THAT in the meantime and unless otherwise stated, the Certificate of Title issued to the 1st Respondent and transferred to the 2nd Respondent be and is hereby retained by them.** 9. **THAT** **each party to bear their own costs.** **IT IS SO ORDERED ACORDINGLY.** **JUDGMENT DELIVERED, DATED, SIGNED AND AT MOMBASA KWALE THROUGH MISCROFT TEAMS VIRTUALLY THIS ………17TH ……… DAY OF ……JULY…….. 2026.** **……..……………………………** **HON. MR. JUSTICE L. L. NAIKUNI** **ENVIRONMENT AND LAND COURT** **AT MOMBASA** **Judgement delivered in the presence of:-** 1. M/s. Firdaus Mbula – the Court Assistant 2. Mr. Mwimi Advocate holding brief for Mr. Kamwendwa Advocate for the 1st & 2nd Petitioners. 3. Mr. Mohammed Billow holding brief for Mr. Ahmed AbdullahiNassir (SC) Advocate for the 2nd Respondents. 4. No appearance for the 3rd, 4th & 5th Petitioners; 1st, 3rd, 4th, 5th & 6th Respondents.