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Niaz Mohamed Jan Mohamed (Plaintiff) v. Commissioner of Lands and others (Defendants)

Country/Territory
Kenya
Type of court
National - higher court
Date
Oct 9, 1996
Source
UNEP, InforMEA
Court name
High Court of Kenya at Mombasa
Judge
Waki, P., N.
Reference number
Civil Suit No. 423 of 1996
Language
English
Subject
Legal questions, Land & soil
Keyword
Access-to-justice Legal proceedings/administrative proceedings Land-use planning Expropriation Land tenure Public land
Abstract
The plaintiff had been the Registered Proprietor of a property measuring approximately 3.63 Acres, in Kisauni/Nyali area within Mombasa Municipality. During the construction of the New Nyali Bridge in 1979, it became necessary to construct a new access road to Kisauni and Nyali Estate. After the new road was opened for use by the public the plaintiff enjoyed a road frontage and direct access to that road until November 1995 when it was alleged the Commissioner of Lands created a new leasehold Title from a small portion which remained uncovered by the tarmac road, measuring approximately 0.14 Acres and allocated this to JIVACO AGENCIES who received a 99 year tenure. The plaintiff saw in this not only a deliberate attempt to interfere with his private easement rights of access to the new road and its road reserve, but also a callous attempt to unlawfully alienate public land to private developers. The respondents challenged the locus standi of the plaintiff to protect the public rights he purported to in alleging that a public road was unlawfully alienated. The court held that the plaintiff was entitled to assume that the unutilized portion would remain a road reserve and he would continue to enjoy all the rights and privileges of a frontage to the road and enjoy the resultant easement of direct access to that road. With regard to the locus standi the court emphasized that Section 61 of the Civil Procedure Act provided that in cases of Public Nuisance, it was only the Attorney General or two or more persons having the consent in writing of the Attorney General” who could institute a suit though no special damage has been caused, for a declaration and injunction or other suitable relief. Nevertheless, quoting another court decision the court held the plaintiffs had locus standi. They were members of the public. They resided and paid their rates to the Mombasa Municipal Council. They would be entitled to vote there. And they had a right to question the propriety of the dealings by the authorities dealing with the Public land which was held in trust for the public. The application was granted.
Full text
Jud.Dec.Nat.pre.pdf
Available in
UNEP/UNDP/Dutch Government Joint Project on Environmental Law and Institutions in Africa, Compendium of Judicial Decisions on Matters related to Environment, National Decisions, Volume I, Page 290