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

Pays/Territoire
Kenya
Type de cour
Nationale - cour supérieure
Date
Oct 9, 1996
Source
UNEP, InforMEA
Nom du tribunal
High Court of Kenya at Mombasa
Juge
Waki, P., N.
Numéro de référence
Civil Suit No. 423 of 1996
Langue
Anglais
Sujet
Terre et sols, Questions juridiques
Mot clé
Régime foncier Expropriation Planification territoriale Accès-à-la-justice Terres publiques Procédures judiciaires/procédures administratives
Résumé
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.
Texte intégral
Jud.Dec.Nat.pre.pdf
Disponible en
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