A coastal development dispute can start with a simple mismatch: approval for one area and purpose, followed by a grant for something materially larger. In Funzi Island, that mismatch was only part of the problem. The Court of Appeal also found that the land was protected foreshore and forest land, rather than land the council could set apart for private allocation.
Case identity
- Case: Funzi Island Development Ltd & 2 others v County Council of Kwale & 2 others
- Citation: [2014] KECA 882 (KLR), also reported as [2014] eKLR
- Court: Court of Appeal at Nairobi
- Decision date: 27 February 2014
- Proceeding: Civil Appeal 252 of 2005; appeal in judicial review proceedings
- Primary source: Kenya Law decision, including all three judgments
What the parties disputed
The case concerned a strip along the western side of Funzi Island. The setting-apart process referred to approximately 0.7 hectares for a boat landing base. The grant eventually issued to Pati Limited covered approximately 3.126 hectares.
The appellants owned nearby properties and said the disputed land provided access to the sea, including access used by their tourism business and local fishermen. They challenged the allocation as involving a public beach and protected mangrove forest.
The respondents maintained that it was trust land within the council's jurisdiction, that the setting-apart procedure had been followed and that the development benefited the area. Pati also disputed the appellants' standing and their description of the land's position and tidal flooding.
The High Court dismissed the judicial review application. The appeal was not a private sale dispute or an action to establish a family trust: it examined the statutory authority behind a public body's allocation.
Land category came before the grant
Githinji JA analysed the boundary descriptions, survey material, forest proclamation and affidavit evidence. He concluded that the disputed strip was not part of the trust land vested in the council. It was foreshore and part of the mangrove swamp forest reserve.
Maraga JA likewise found that the land had not ceased to be protected forest and was not available for allocation. Registration did not supply missing authority. Githinji JA also distinguished protection of a purchaser's certificate under section 23 from this original grant. See Githinji JA, paragraphs 8–17, and Maraga JA, paragraphs 34–45.
The area and purpose still needed lawful approval
Even assuming the land had been trust land, the court identified serious procedural failures. The final grant exceeded the area set apart, without the necessary further approval. The required public-notice and representation process had not been demonstrated. The documents also did not establish the prescribed compensation application arrangements.
The approved purpose was a boat landing base, while a hotel had been developed. The court found no corresponding notice supporting that change. Paying additional premium for a larger survey area did not itself answer the statutory approval problem. See Githinji JA, paragraphs 18–22, and Maraga JA, paragraphs 43–44.
What was decided and what happened later
The appeal was allowed. The setting apart, Gazette notice and grant were quashed; Maraga JA also expressly quashed the allotment letter. The appellants received appeal and lower-court costs. Prohibition had been abandoned as overtaken by events; no new prohibition order should be inferred.
The judges agreed on the outcome but expressed procedural nuance. Karanja JA considered an ordinary civil claim better suited to some disputed issues, while agreeing that excess of statutory authority fell within judicial review. See Githinji JA, paragraph 24; Karanja JA, paragraphs 2–7; and Maraga JA, paragraphs 20 and 49.
An intervening Supreme Court ruling, Pati Limited v Funzi Island Development Limited & 4 others [2019] KESC 23 (KLR), on 6 August 2019 granted certification, continued a stay pending filing and hearing of the appeal, and left costs in the cause. That was permission to appeal, not success on title. See paragraphs 41–42.
The Supreme Court then dismissed Pati's appeal in Pati Limited v Funzi Island Development Limited & 4 others [2021] KESC 29 (KLR) on 16 July 2021, affirming the outcome with appeal costs against Pati. It relied on preservation of forest status and the area-and-purpose failures, not acceptance that the old Forests Ordinance necessarily remained law. See paragraphs 53–64 and orders (i)–(iii).
Questions about a coastal grant
- Does the land fall within a protected area or foreshore description?
- Do the approved area, survey and grant agree?
- Where is lawful authority for any change in area or purpose?
- What documents establish the required public process?
Official searches, advocate review, survey interpretation and field follow-up are separate. Use the parcel identifier and request dated evidence, sources, confidence and outstanding land-category questions. ArdhiScore concerns accessible recorded indicators, not certification of coastal boundaries or protected-area status. Explore ArdhiScore screening and its limits.
This is educational information, not legal advice. Later searches located no post-2021 altering decision, but were not exhaustive. These historical decisions do not establish the current register or current site conditions.