Authored By: Brian Naheso
Historical Background
The case involved three adjacent first-row beach properties where a section of land was set aside for public use between the first-row beach plots and the high-water mark of the Indian Ocean. In violation of survey regulations and rules, the 3rd Respondents, Commissioner of Lands, encroached the strip by allocating it to the 1st and 2nd Respondents. One of whom thereafter erected a wall that kept the Appellants away from the coastline. The Petitioners argued that these acts were illegal, a violation of their property rights, and a violation of their littoral rights to access, utilize, and enjoy the beach.
The petition was permitted by the High Court where it was found that the rules of natural justice under Article 47 of the Constitution and Article 10 on the national values and principles of governance were both gravely violated by the Commissioner of Lands. In terms of littoral rights, the Commissioner of Lands was required by law to maintain a reserve land of at least 60 meters between the coastal lands and the high-water mark. According to the judge, the reserve property was used for government purposes and could only be sold with the approval of the Kenyan minister in charge of surveying the country. In the absence of such direction, the grant and encroachment onto the land had been unlawful and as such void.
At the Court of Appeal, the Respondents contested that the petition was time barred. The transfer had happened 20 years by the time of filing at the High court. They argued that the judge erred in retroactively applying the constitution.
The Court of Appeal allowed the appeal, noting that legislation was required by parliament to give effect to the right to fair administrative action. Thus, the Fair Administration Act was enacted and entered into force on June 17, 2015, long after the cause of action had arisen. The Constitution took effect on the day it was promulgated, and the Appellants could not invoke Article 47 of the Constitution, and consequently the Act, to divest the Respondents of property that had vested more than twenty years before the Constitution’s promulgation. The Appellants were thus time-barred and that a landowner also had an indefeasible title that could not be called into question unless it was obtained through fraud that was neither proven nor pleaded.
Being aggrieved with the decision the Petitioners Kiluwa Limited and Suleiman Said Shahbal appealed to the Supreme Court. On the other side were the Respondents which included; Business Liaison Company Limited, Muorgate Holdings Limited, the Commissioner of Lands and the Attorney General. The Appellants approached the Supreme Court pursuant to Article 163(4) (a) of the Constitution, challenging the entire judgment and orders of the Court of Appeal.
Issues for Determination
The Supreme Court framed the issues as follows:
- Whether this court has jurisdiction to determine the appeal herein;
- Whether the 2010 Constitution (Article 47) applies retrospectively to this dispute; iii. Whether the Appellants were time-barred in lodging their claim;
- Whether the portion of land which is the subject matter of the dispute was public land, and if so, whether it was available for allocation.
Analysis and determination
The Respondents had challenged the Supreme Court’s jurisdiction to hear the appeal. They contended that the High Court lacked jurisdiction to decide a case that predated the adoption of the Constitution. Furthermore, the Supreme Court had no jurisdiction to entertain matters that had been finalized by the Court of Appeal before the commencement of the 2010 Constitution.
However, the Supreme Court disagreed noting that the High Court’s jurisdiction had never been challenged at the Court of Appeal, nor had the issue been raised in any way at the two superior courts. The basis for challenging the court’s jurisdiction was also not backed up by facts. The dispute had never been finalized by the Court of Appeal, before the commencement of the Constitution. The judgment of the Court of Appeal which gave rise to the appeal was delivered on November 11, 2016. The issue of jurisdiction was thus ruled in the affirmative; the Supreme Court had jurisdiction to hear the matter.
On the second issue, the Respondents argued that the Constitution is forward-looking and ought not to be applied retrospectively, especially if such application could result in the deprivation of legally acquired rights. By dint of Article 47 sub-article 3, the language was forward looking by requiring the need for an Act of Parliament. In the case of Samuel Kamau Macharia v. Kenya
Commercial Bank [2012] eKLR the Supreme Court earlier on did not explicitly rule out the application of the constitution retroactively. It had warned that if the language of a specific provision in the Constitution does not contain even an indication of retrospectivity, then that provision cannot apply retroactively. The Supreme Court thus noted that Article 47 is a Bill of Rights provision which is stated in deliberate and clear normative terms as opposed to general principles that would require the further input of the legislature so as to attain prescriptive force.
The Constitution required that legislation contemplated was to provide for review of administrative action by either a court or independent tribunal. The legislation was also to provide for efficient administration. The effect of sub-Article 3 was therefore to perfect the enjoyment of these rights. Article 20(3) of the Constitution most importantly required a court in applying a provision of the Bill of Rights to develop the law to the extent that it does not give effect to a right or fundamental freedom; and adopt the interpretation that most favors the enforcement of a right or fundamental freedom. In addressing the original claim, the High Court had correctly applied Article 47 of the Constitution.
On the issue of time, the Respondents contended that the Appellants were guilty of inordinate delay, having waited for twenty years before filing suit at the High Court. The court noted that for a party to be time-barred from litigating its claim, such limitation of time must be stated in the Constitution, statute or as a principle of Common law. To be successfully raised against a litigant, a court must determine when the time started running. In other words, the question as to when the cause of action arose has to be settled so as to shut out a litigant on grounds of passage of time. These principles were never at play in the appeal and as such no basis existed upon which the Appellants were said to have slept on their rights. The cause of action arose, not at the time of the completion of the transfers, but at the commencement of the erection of the wall.
On the final issue, status of the two parcels of land was to be determined by an examination of the relevant provisions of the Constitution and applicable statutes. The Supreme Court came to the conclusion it was incorrect for the Respondents to assert that the lands in question were un alienated government land but not public land. Un-alienated government land remained public until it was privatized through allocation to individuals or other private entities. The land allocated was from the foreshore which was reserved for public use. The lands fell as un-alienated government land which the law forbids the conferment of any right to the foreshore by a conveyance, lease or license. The right of access to the ocean was also a public right secured by a public easement. Such right could not be acquired through a private treaty.
The appeal was thus allowed. It was found that the Appellants’ right to fair administrative action as guaranteed by Article 47 of the Constitution had been violated. The Judgment of the Court of Appeal was set aside and the Judgment of the High Court affirmed. The 1st and 2nd Respondents were to take immediate action to remove the offending wall and any other structures that they erected. The cost of the appeal was to be borne by the 1st and 2nd Respondents.
Conclusion
A civil court should not interpret legislation to apply to cases arising prior to their enactment or to acts from a time anterior to passage. No legislation should be construed in such a way as to do a man any damage when he was free from wrong. Laws should not be enforced before the subjects have an opportunity to become acquainted with them. This is a requirement of an open, accountable and transparent democracy where the rule of law is expected to thrive. It is only where parliament has given express authority that a law will apply retrospectively.
The Constitution though supreme, it is subject to the people. At the time of the said infringements, another constitution existed. Just the same way it ceased to exist is the same way the 2010 constitution may at a point do so. Constitutions strive to bring about social change. This does not mean favoring any party over the other. Class should never be a determinant. If in the wrong then the law should take its course. If free from wrong then one cannot be punished.
Had the said property been acquired illegally, which the Supreme Court found so, then they were not entitled to possess. However, I am in agreement with the Respondents that fraud was not pleaded or proved. 20 years passed for the suit to be filed at the High court after learning of a right that even though it existed, it was not written. This is the right to fair administrative action. This does not mean they were to be treated any lesser as they are protected under by the Constitution but ignorance of the law is no excuse.
