PETITION NO. 37 OF 2019
This appeal arose to challenge the entire Judgement and Orders of the Court of Appeal. The dispute arose from the allocation of the piece of land known as LR. No. 20247 to Pati Limited.
At the High Court, the main contention by Funzi Island Development Limited & 4 others was that the original piece of land that was allocated to Pati Limited was at all material times forest land as opposed to Trust Land, and was thus not available for allocation, unless the land had ceased to be forest land. Pati Limited, on the other hand, were of the opinion that the suit land was not forest land, as no evidence had been adduced to support this position.
The High Court thus framed two issues for determination: Whether the land in dispute was trust land under the Constitution and the Trust Land Act; and whether it was forest land falling under the provisions of the Forest Land Act. The High Court declined to issue the orders requested for by Funzi Island Development Limited and the four others, since it agreed with Pati Limited that there was no conclusive evidence in support of the claim that the land was forest land. The court further held that the land had been legally transferred and hence dismissed the suit.
The petitioners in the High Court filed an appeal to the Court of Appeal on several grounds. The Court of Appeal however narrowed down the issues to: Whether or not Pati Limited had locus standi in the matter; Whether or not the suit land was initially Trust Land, a public beach or a mangrove forest protected under the Forest Act; and if it was Trust Land, whether or not the Council had authority to alienate it to one, Hon. Mwamzandi, at whose request it later re-allocated it to Pati Limited.
The Court of Appeal unanimously allowed the appeal and granted an order quashing the allocation of the suit land to Hon. Mwamzandi, and later to Pati Limited. Dissatisfied by the Court of Appeal decision, Pati Limited moved to the Supreme Court, appealing this decision.
ISSUES FOR DETERMINATION BEFORE THE SUPREME COURT
The following two issues arose for determination before the Supreme Court:
- Whether the suit land is forest or trust land.
- Whether the suit land is trust land, and if so, was it legally set apart?
The court revisited the laws relied upon by the parties in support of their submissions. Section 4 of the Forest Ordinance Act provides that the Governor-in-Council may, by a proclamation notice in the Gazette, declare any unalienated and unreserved Crown Land to be forest area.
Further, Section 5 provides that any forest area may be declared to be a demarcated forest. By Proclamation Notice No 44 of 1932, mangrove swamp forest was excluded from the forest reserves. However, Legal Notice No. 174 of 1964 was issued by the Minister declaring that Mangrove swamp forests comprise of pieces of land situated between the high and low water marks on the coast of Kenya, which were declared to be forest areas by Proclamation No. 44 of 1932.
The court concluded that the status of the suit land is a matter of law. It upheld the declarations in Proclamation No.44 of 1932 and Legal Notice No.174 of 1964, and held that the suit land falls within the frontiers of what constitutes a mangrove forest.
On the second issue, the court relied on the retired Constitution. The Court answered the question in the negative due to the findings of law and fact. The Court held that there was no further Notice on record for change of purpose. It stated that the entire process and notice of setting apart fell short of the requirements of the Constitution and the law. In view of those shortcomings, the Supreme Court’s conclusion regarding the legal status of the suit land was that it found no reason to upset the judgement of the Court of Appeal.
The Petition of Appeal was thus dismissed and the Court of Appeal judgement affirmed, with Pati Limited bearing the costs of the Appeal.
By Wendy Kuyoh