Mutua Mugambi Titus and Austin Okothe Omondi
Malindi is a town set apart by its unique, beautiful beaches and shoreline, which make up the vast Malindi Bay. The town is a globally legendary popular tourist attraction. However with time, the vast Malindi Bay (the Bay) has gradually slipped into the bargain of ecological threat.
For instance, silt discharged to the ocean through the rivers, majorly Sabaki River, has over many decades been washed ashore through wave and wind action and has been deposited along the Bay, resulting in the loss of beach frontage. Today, the vastness of the bay, which, in years gone, had a coastline stretching deep into some areas of the town, is characterised by sand dunes, and a unique floral community. An area once covered by the Indian Ocean is now dry land and the Ocean has receded deeper from the mainland.
This formed land along the Malindi sea front has been hotly debated and wrangled over since, in some places, the land added extends up to two (2) kilometres and in others there is a good kilometre of new land which has been deposited through time. This land is prime beach front estate. Suffice it to say that certain unscrupulous individuals have tried (some have succeeded) to ‘give themselves’ plots in this newly formed land.
A legal question then begs: “who lays a claim to this newly gained land?
Doctrines of Avulsion, Accretion and Reliction
Robert Hall, in his “Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm”, 1875 (p.108) writes that “Maritima incrementa” is of three kinds: land washed up by the sea, also termed alluvion (per alluvionem); land left dry by the shrinking or retirement of the sea also termed derelict land (per relictionem); and land categorised as being ‘gradually and suddenly’ forged from the sea, or at river mouths (per insulae productionem).
The terms “avulsion”, “accretion” and “reliction” are at times repeatedly invoked without necessarily circumscribing the exact boughs within which the terms operate. It is paramount to refrain from transfusing the terms with each other without noting the innate differences of the terms invoked to describe each particular phenomenon.
The rationale for the above is that each phenomenon, in its instantiation, generates different legal effects against which the unbridled interchangeable employment of the terms without due regard to those legal effects, results in the blurring of and general confusion on the law surrounding them. Such confusion is ripe culture in which the vice of reading into law which does not exist thrives. As such, the terms cannot, and therefore ought not to, be used interchangeably to refer to the same phenomenon they intend to describe or define.
In ordinary parlance, accretion, (derived from the Latin phrase ‘accrescere’, which literally translates to “grow” or “increase”), connotes the slow and imperceptible addition of soil through deposition on the terrestrial terrain immediately abutting the sea.
Black’s Law Dictionary (6th Ed) has expressed that the terms “alluvion” and “accretion” are frequently used synonymously and goes further to define and distinguish the two terms as follows:
“Accretion: The act of growing to a thing; usually applied to the gradual and imperceptible accumulation of land by natural causes, as out of the sea or a river…
The term “alluvion” is applied to deposit itself, while “accretion” denotes the act.”
Case Law has followed this definition and distinction “mutatis mutandi”. The Bombay High Court in the case of “Anant Vishnu Khare Vs The State Of Bombay (1961) 63 Bomblr 371”, relied on the observation in “Corpus Juris Secundiim, Volume 93”, under the head “Waters” sub-head “Accretion And Alluvion” (Para 76, pp.750-751) that: “The land formed as a result of the process of accretion is usually termed ‘alluvion’ although the term accretion has been used to designate the result as well as the process…”
From these definitions, it is deducible that accretion is the process that leads to deposit of “alluvium” (the materials) leading to subsequent increase of the adjacent “terra firma” (solid earth). It therefore follows that the material that is being moved is called “alluvium” and once deposited it forms a feature known as an alluvion.
As such, for land to qualify as “per alluvionem” there must be an addition of alluvium onto the “terra firma” adjacent to the sea thereby “increasing” it. Not only must that be; in addition, the process of accretion must be slow, gradual, and imperceptible.
Avulsion is said to be the exact opposite of accretion, and in this sense, avulsion is characterised by a sudden and perceptible change which causes the removal of soil and materials from the land abutting the sea.In the case of “Missouri Vs Nebraska, 196 U.S. 23 (1904)”, the court found an avulsion to be the sudden and rapid change whose occurrence is perceptible as it progresses. The Court held that “avulsion is the sudden and rapid change in the course and channel of a boundary river”.
In addition to the Doctrine of Accretion, Lord Hale, in “De Jure Maris”, illustrates the existence of yet another concept of “maritima incrementa”; “an acquest of another nature”, quite distinct from accretion or avulsion, of which lands are gained “per relictionem” from the recess of the sea. That as a result of natural phenomena, the sea shuts out itself through a process known as reliction, and in the process the seabed once covered with water becomes exposed, forming part of the formerly adjacent “terra firma”.
Black’s Law Dictionary defines derelict land as land uncovered by the gradual subsidence of water. In restating the position of common law as regards such lands gained “per relictionem”, Robert Callis, in “Statute of Sewers 23 Hen Viii” (Chapter 5) concluded that “the same doth belong to the King; as they belonged to the King during submersion, the ownership remains to the King post exposure”.
The Court in the Case of “The King V the Abbot De Ramsey (1369) 2 Roll Abr. 170, Dyer 326” held that lands formerly drowned before the sea left do belong to the King. Lord Hale lays it down that custom “cannot entitle the subject to relicted lands, or make such lands part of a manor”.
Ownership of Marita Incrementa – Ownership of Per Alluvionem
The siltation (process by which earthy matter, fine sand, or the like is carried by moving or running water and deposited as a sediment) by Sabaki River has been the major cause of the alteration of the Malindi shoreline. The focus shall henceforth illuminate on the legal rights accruing per alluvionem in a bid to revert to the legal crux of this editorial.
Once the conditions set for land to be said to have been gained per alluvionem subsist, then what arises is the question as to the ownership of the “terra firma in extenso”. Under the Civil Roman Law as evidenced at “The Institutes of Justinian (Paragraph 20)”, ownership of “per alluvionem” is documented as follows:
“Moreover, soil which a river has added to your land by alluvion becomes yours by the law of nations”
William Blackstone, in his “Commentaries on the Laws of England 262 (1765)” documents the classification of land with consonant processes of their creation, and has this to say regarding ownership “per alluvionem”.
“And as to lands gained from the sea, either by alluvion, by the washing up of sand and earth, so as in time to make ‘terra firma’; …the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it shall go to the owner of the land adjoining…”
Worth noting is that Hall documents that in relation to entitlement to land “per alluvionem”, the owner intended must be the absolute owner of freehold. It cannot be a leaseholder. Notable authors have further attempted to justify the entitlement of “per alluvionem” by arguing that the gains are compensation for risk that the owner of the land might suffer if by nature the sea forges upon the land and engulfs his estate. Blackstone documents:
”…and, besides, these owners being often losers by the breaking in of the sea, or at charges to keep it out, this possible gain is therefore a reciprocal consideration for such possible charge or loss…”
The Doctrine of Ager Limitatus
The doctrines of accretion, avulsion and reliction do not operate in isolation. Each phenomenon, taken in singular, and upon instantiation, operates consonant to the doctrine of “ager limitatus”.
Black’s Law Dictionary defines “ager” as, “A field; land generally. A portion of land enclosed by definite boundaries.”
The import of this doctrine has clearly been demonstrated by a recent South African case of “The Body Corporate of Dolphin Cove V Kwadukuza Municipality and Another (8513/10)  Zakzdhc 13 (20 February 2012)”. The Court held that an ager limitatus is a plot of land enclosed on all sides by artificial boundaries and demarcated by such, whereas an “ager non limitatus” is a plot bounded on one or more sides by some natural feature such as a river or the seashore.
The scope of “ager non limitatus” is rational in the sense that since the edge of the water body is in itself the boundary, then the boundary moves with the shifting water body. The converse is also true; that the doctrines of accretion and avulsion are inoperative to fields that are “ager limitatus”. The boundary in the latter is static and the changes caused to the outer edges of the water body do not affect the boundaries of the “ager”.
The Principle of ‘De Minimis Non Curat Lex-Idem est Non Esse et Non Apparere’
Essential to determining the ownership of “per alluvionem, besides the Doctrine of “ager limitatus”, the Doctrine of Accretion also rests on the Principle of “de minimis”. The literal meaning of the “de minimis” Principle is that the law does not concern itself with trifles.
The Oxford English Dictionary defines “trifle” as “a thing of no moment; a trivial, paltry, or insignificant affair”. Thus, a trifle is something of minor consequence which could easily be overlooked.
Lord Hale has observed that “But indeed if such alluvion be so insensible, that it cannot be by any means found that the sea was there… the land thus increased belongs as a perquisite to the owner of the land adjacent.”
Registering maritima incrementa
“Maritima incrementa” do not vest automatically though. The littoral owner of such land must have that property registered as such under the relevant laws of the land. Without registration, such accreted lands are open for allocation to any individual who so wishes as was the dictum of The Supreme Court of the Philippines in the Petition of “Ignacio Grande, Et Al Vs Hon. Court Of Appeals, Domingo Calalung, And Esteban Calalung”.
The Court said “…There can be no dispute that…petitioners are the lawful owners of said alluvial property, as they are the registered owners of the land which it adjoins. The question is whether the accretion becomes automatically registered land … We agree with the Court of Appeals that it does not…The increment, therefore, never became registered property… Consequently, it was subject to acquisition through prescription by third persons.”
“Maritima Incrementa” is quite a novel area of legal jurisprudence in Kenya. It is unknown to many and it has, over the years, eluded thoughtful legal discussions amongst the legal fraternity and fairly a miniature of scholarly opinion can be traced on this area. Notwithstanding the deficiency of jurisprudential growth in this area, the phenomenon has been experienced along the Kenyan coast.
For instance, in the case of “Rhoda Chelagat Kandie Versus The Commissioner Of Lands & 4 Others  eKLR”, the plaintiff visited an oceanfront plot which she had been earlier allocated and could no longer see the sea; the shoreline having receded. In the suit she sought prayers that titles issued over the vacant land formed through the recession of the sea be cancelled and that they be made part of her Grant under the common law doctrine of accretion, and a new Grant be issued in her favour to reflect the change.
Prior to the promulgation of the Constitution (2010) and the enactment of the Land Laws, 2012, the Mombasa Island and other areas in and near the Coast Province, including Malindi, were governed by the repealed Land Titles Act, Cap 282 of the Laws of Kenya (LTA). This Act had exclusive practicality to the Coast region.
Section 17(1) Of The LTA (repealed) provided that all land situated in any district, area or place to which the Act had applicability concerning which no claim(s) for a certificate of ownership had been made, or if, such claim(s) having been made, none had been allowed, were deemed to be government land. This section comes into play vis-à-vis maritima incrementa because once alluvionem had been deposited leading to land being gained from the sea, no one could be said had a certificate of ownership to this land as it was newly formed, hence Government Land.
Section 2 Of The GLA defined government land to mean “land for the time being vested in the government by virtue of sections 204 and 205 of the Constitution (as contained in Schedule 2 to the Kenya Independence Order in Council, 1963), and Sections 21, 22, 25 and 26 of the Constitution of Kenya (Amendment) Act, 1964. The section further defined “unalienated government land” to mean government land which was not for the time being leased to any other person, or in respect of which the Commissioner had not issued any letter of allotment. Hence, following this provision, the exposed terrestrial plains, which stood unallocated or alienated and which formed part of maritima incrementa, would be classified as “Unalienated government land” as defined by the referred section of the repealed GLA for the reason that the Commissioner of Lands had not issued any letter of allotment to any individual.
Under the hospices of the repealed GLA, unalienated government land could be allocated to private individuals. The power to alienate and allocate government land was set out in Section 3 thereof. The said section provided in part; “The President, in addition to, but without limiting, any other right, power or authority vested in him under this Act, may subject to any other written law, make grants or dispositions of any estates, interests or rights in or over unalienated government land.”
Allocation of such land had to be in line with “Regulation 110 Of The Survey Regulations of Kenya, 1994” which require that for purposes of Coast foreshore reservation, where unalienated government land fronting on the area coast is being surveyed for alienation, a strip of land not less than 60 meters in width shall normally be reserved above high-water mark for government purposes. It goes without saying that the land gained from the sea fronts on the Malindi Coast fall under this category.
Subsequent to the retiring the 1964 Constitution, the regime of land law in Kenya transformed in great measure. Article 61 Of the Constitution of Kenya, 2010, classifies land in Kenya as public, community or private. Note that it does not classify any land as “Government Land”.
Nonetheless, Article 62 (1) (A) imports unalienated government land as previously understood. The Article defines public land to be land which at the effective date of promulgation was unalienated government land as defined by an Act of Parliament in force at the effective date. The repealed GLA was in force on the date of promulgation of the 2010 constitution.
Article 62 (1) (L) provides that all land between the high and low water marks is public land. This Article, in effect, echoes Regulation 110 of the Survey Regulations, 1994. By virtue of Article 62 (2), public land falling under Sub Article (1) (A) vests in and is held by a county government in trust for the people resident in the county and by virtue of Sub Article (3) thereof, public land falling under Sub Article (1) (I) vests in the national government in trust for the people of Kenya. The National Land Commission (NLC) created under Article 67 administers such land on behalf of the County and National Governments.
Owning Land Gained From the Sea
Thus far, it has been submitted that no private individual can automatically lay claim to the land newly gained from the sea. More so, it is herein submitted that the doctrine of “ager non limitatus” does not find relevance within the Kenyan Land regime. This is so because firstly, the land between the high and low water marks is public land and secondly, all developments have to be shy of 60 meters above the high-water mark for Government purposes. It thus follows that in Kenya, the land gained from the sea does not go to the owner of the land adjoining it as the concept of per alluvionem denotes. It is, for all practicable reasons, public land. Such land must be gained by private individuals within the confines of the law.
The retired land legal regime vested upon the President discretion with regards to unalienated urban land, powers that, as established by the Ndung’u Land Commission, were widely abused.
The prevailing land legal regime has not obliterated gaining of Public Land by private individuals. Section 9 (1) of the Land Act, 2012, provides that any land may be converted from one category to another in accordance with the provisions of the Act or any other written law, and Sub Section (2) (A) thereof provides that public land may be converted to private land by alienation. Section 2 of the same Act defines “alienation of land” to mean the sale or other disposal of the rights to land.
Pursuant the creation of the National Land Commission, Act No 5 of 2012, The National Land Commission Act, 2012, was enacted to make further provision as to the functions and powers of the NLC. Section 5 (2) of this Act provides that the NLC shall, on behalf of and with the consent of the national and county government, alienate public land.
Article 62 (4) of the Constitution provides that public land shall not be disposed of or otherwise used except in terms of an Act of Parliament specifying the nature and terms of that disposal or use. Under the previous Constitutional dispensation, one had to follow the mandatory procedures of the Government Lands Act.
Section 12 of the Land Act, 2012, provides that the NLC may, on behalf of national or county governments, allocate public land by way of public auction to the highest bidder at prevailing market value subject to and not less than the reserved price and public notice of tenders as it may prescribe. Section 14 of the same Act provides for the notification requirements applicable to allocation of public land. Such disposal of public land has to be in tandem with the Public Procurement and Disposal Act, 2005.
The land gained from the sea along the Malindi Bay is quite vast, running into several hectares, and cannot be considered trifle by whatever measure. Kuria K Kairu, then of the Kenya Marine and Fisheries Research Institute, presented a paper on the Vulnerability of the Kenyan Shoreline to Coastal Instability during the Unesco-Kenya National Seminar on Sustainable Coastal Development through Integrated Planning and Management Focused on Mitigating the Impact of Coastline Instability held at White Sands Hotel, Mombasa, from 23-25 June 1997, showing a comparison of the 1884 and the 1966 Bathymetric Charts, noting shoreline accretion in the 1966 bathymetry. The comparison drawn by Kuria, in his diagrammatic presentations, makes one appreciate that indeed the accreted land along the Kenyan coast cannot be ignored both from a development and legislation point of view.
Moreover, the shore is of strategic importance to the nation in terms of security against which it cannot be said to be insignificant. Regrettably, considerable focus has not been directed towards developing jurisprudence in this area. Legislative framework in this respect has also not been put in place. Encouragingly though, the National Environment Management Authority (Nema) has somewhat shone a little light on this area in an attempt to create pace on the same. Nema has spearheaded the creation of the Integrated Coastal Zone Management (ICZM) Action Plan for Kenya, 2011-2015. ^
Writer is advocate of the High Court; email@example.com
Mutua Mugambi Titus and Austin Okothe Omondi