Appeal Court awards disputed ‘emerging’ sea plot to government

A rare court battle over a parcel of land that literally emerged from the ocean has ended with neither of the two major contesting parties walking away victorious.

In a landmark decision, the Court of Appeal in Mombasa ruled that the disputed seafront property, formed by the natural recession of the Indian Ocean, belongs to the State—not to either of the entities that had laid claim to it.

The dispute traces its roots to the early 2000s, when the coastline in Mombasa underwent gradual recession, leaving behind a stretch of land that had previously been part of the sea.

The newly formed plot — located along the Mombasa seafront — became the centre of a legal and administrative tussle after Timeless Properties Limited obtained a title to the land.

Not long after, Mombasa Polytechnic University College, which bordered the property, laid a rival claim, arguing that the land in question was part of its institutional boundary and that the title issued to Timeless was irregular.

What began as an ownership dispute between a private developer and a public institution eventually drew in the State, as government agencies weighed in on whether the land, having once been under the sea, could lawfully belong to anyone at all.

At the trial court, both parties presented their evidence and arguments.

Timeless Properties relied on leasehold documents, a registered title, and a letter of allotment to assert its claim, insisting that it had followed due process in acquiring the land.

Mombasa Polytechnic countered by emphasising that the land had naturally emerged from the sea adjoining its property.

Its argument was based on the legal concept of ‘dereliction,’ asserting that the institution should have rights to the land.

"Dereliction, in this context, is the gaining of land from water because of permanent recession of the sea below the usual water mark," the judgement states.

The trial court ruled against both Timeless and the Polytechnic, noting gaps in the evidence regarding proper alienation and ownership of the newly formed land.

Unsatisfied with the outcome, Timeless Properties appealed the decision, bringing the matter before the Court of Appeal.

Counsel for Timeless told the court, “Our client is the bona fide proprietor of the land, having followed due process and paid requisite fees.”

The company leaned heavily on its leasehold documents, a letter of allotment, and a registered title to assert that it had met all legal requirements to own and develop the parcel.

Mombasa Polytechnic, meanwhile, maintained the dereliction argument to assert its rights to the land.

The appellate judges undertook a detailed review of survey reports, historical maps, and property documents.

The Court of Appeal noted that Polytechnic’s existing land had been clearly demarcated by beacons along its perimeter wall, meaning it was “ager limitatus” (a plot of land that has artificial, fixed boundaries, such as beacons or walls) or rectilinearly bounded.

In Roman-Dutch property law, such land cannot automatically extend into newly formed land by natural processes.

"With those deductions and observations, the task of determining the main issue before us is much easier. Plot 430 belonging to Timeless property was never part of Plot 180 as it was created as a gain of land from the ocean water after the permanent recession of the sea below the usual water mark," they noted.

The court underscored that land created through dereliction generally vests in the State unless there is a clear legal provision or prior ownership rights entitling an adjoining landowner to claim it.

On this point, the judges concluded that Mombasa Polytechnic had not discharged the burden of proof necessary to establish that the plot was entitled to the new land.

The ruling also addressed Timeless Properties’ claim, holding that the company could not rely solely on its lease documents or the letter of allotment to claim lawful ownership.

“There was no evidence whatsoever of how Plot 430 was alienated to Crescent [Property Development Limited], and no iota of proof that the alienation complied with the provisions of the repealed Government Lands Act,” the court observed.

The judgment reinforced the principle that titles or leases are not automatically indefeasible if the process of allocation was irregular or unlawful.

As a result, the appellate court upheld the High Court’s cancellation of Timeless’ title.

Plot 430, the judges determined, reverts to the Government of Kenya, which may lawfully alienate the land in accordance with the Constitution and relevant statutes.