Joshua Kimani v Minister for Public Works & 2 others [2018] KEELC 4682 (KLR)
The bottom line
#A Machakos court ruled that a private landowner's title beat the county's claim because no approved plan proved the land was reserved for a stadium.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit land was reserved for public use as a stadium
The court found no approved Part Development Plan proving reservation for a stadium; the exhibited 1992 plan reserved land for 'proposed Industrial Development', not public purpose.
The 3rd Respondent relied on a Part Development Plan of 13th March 1992, but that plan reserved 3.6Ha for proposed Industrial Development and did not support the assertion that the land was set aside for a stadium or any public purpose. The assertion that the land was reserved as far back as 1970 was similarly unsupported by an exhibited approved plan.
Whether the Petitioner's title is protected by Article 40
Yes. The Petitioner held a Grant, had paid stamp duty, rent and rates, and there was no evidence the title was obtained unlawfully.
The property was registered in favour of Simon Kilonzo Kyatha on 12th February 1997 and transferred to the Petitioner on 15th July 2009. Before transfer the Petitioner paid the requisite stamp duty, rent and rates. With no evidence of unlawful acquisition, the constitutional protection of property rights under Article 40 attached to the Petitioner's title.
Legal principles established
#- A registered owner in possession of a Grant enjoys constitutional protection under Article 40 absent evidence that the title was obtained unlawfully
- A party alleging land is reserved for public purpose must exhibit an approved Part Development Plan proving the reservation
Court orders
#- 1.Declaration that land known as L.R. No. 337/2393 situate in Mavoko within Machakos County belongs to the Petitioner
- 2.Declaration that the Respondents' acts of fencing off and developing L.R. No. 337/2393 are unconstitutional and amount to breach of the Petitioner's constitutional rights to own property
- 3.Permanent injunction restraining the Respondents from entering, acquiring, developing, trespassing or otherwise interfering with the Petitioner's quiet possession of L.R. No. 337/2393
- 4.Order directing the Respondents to demolish the fence, buildings or structures standing on L.R. No. 337/2393 within sixty (60) days of the Judgment
- 5.Respondents to pay the costs of the suit
- Jurisdiction invoked
- Article 40 of the Constitution (protection of right to property), via a constitutional petition under Article 22/23 framework
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Kimani v Minister for Public Works & 2 others [2018] KEELC 4682 (KLR)", Case Analysis (2018). Amended Petition dated 29th November, 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4682/eng@2018-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.