Sea Star Malindi Ltd v Kenya Wildlife Services

The applicant intended to build a hotel and a septic tank but was restricted and banned from doing so by the Kenya Wildlife Service and the Malindi Marine Park, parties that claimed the land was within 100 feet of the waterline and therefore was under their protection and conservation. He applied to withdraw the suit against the second (and third) respondents. The applicant maintained that the land had not been gazette by the Government and even if it had been, the land in question was between the high water mark of 100ft and the actual plot and was private freehold land, neither crown land in colonial times or Government land in the present times. The respondents claimed that the construction had encroached onto the legally protected Malindi Marine National Park and Reserve, hence interfering and adversely affecting the marine eco-system, which would cause an ecological disaster. Held: The land in question was private land. The respondent’s action was based on misapprehension that the Government had control over part of the land. The gazette area did not affect the piece of land in question and it was not under the jurisdiction of the Government for protection and conservation. As this was private land, if the respondent wanted to have control over it, it had to follow the law when acquiring the land. Any activities that seek to preserve nature must comply with the laws of the land. The decision by the respondent was unjust and ultra vires its powers. The court held in favor of the applicant.