Judge lifts ban on Kenya beach plots

The High Court has quashed a decree giving the President powers to decide who gets the best beach plot.

The directive was issued by President Jomo Kenyatta in 1970 and required those interested in buying first and second row beach plots to first seek presidential assent and clearance.

The decree was not grounded in law but was strictly enforced by Lands officials, and only the provincial commissioner could recommend those eligible for allocation.

This resulted in the plots being allocated to politicians, senior government officials and their cronies at the expense of other Kenyans. But Lady Justice Mary Kasango said the decree was illegal and unfair.

“It is, in my view, an appendage of yesteryears when presidential decrees were equated to law. It has no place in the Kenyan society of today since it is discriminative,” she ruled last week.

The judge prohibited the Lands’ commissioner, chief lands registrar, registrar of titles and the registrars of lands in Mombasa, Kilifi, Kwale and Lamu from demanding clearance from the President before transferring the prime plots to new owners.

The ruling has been welcomed by businesspeople and Coast residents, with some urging caution.

Mr Ibrahim Mwathane, a land expert and a former chairman of the Institution of Surveyors of Kenya, said the decree should have been an administrative and not legal requirement.

This, he said, would have averted the court case. However, he said it was important to control access to the seafront for security reasons.

“Beach plots are like a big door to someone’s house. Anyone can walk to and from the ocean through the beach and control a series of activities, hence the unrelenting interest in owning a beach plot,” he said.

But all was not lost for the government, he said. “If the State wishes to continue the practice under Article 66 of the Constitution which grants it freedom to regulate land use in the interest of defence or public safety, it then will have to either challenge the ruling in court or embed the requirement as a planning by-law in the affected districts.”

The case was filed by lawyers who argued that the decree was unlawful, unconstitutional and unjustified as it was not provided for in the law. The government did not challenge the case.

In his affidavit, lawyer Mohammed Balala said it infringed the right to free transfer of property, and was discriminatory as it did not apply to other parts of the country.