Rado Development Company Limited v County Government of Kisumu & another
The bottom line
#The Environment and Land Court dismissed Kisumu County's attempt to throw out Rado Development's land rights petition, so the case will proceed to a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition discloses a constitutional issue
Although the court agreed the dispute is essentially a civil land matter, it declined to uphold the objection because a prior ruling had found a prima facie constitutional case
The court accepted that trespass and threatened eviction have civil law remedies and that constitutional petitions are inappropriate for determining land ownership disputes. However, Ombwayo J had already found a prima facie constitutional case when allowing conservatory orders. That finding binds the court at the interlocutory stage and can only be displaced on appeal or at the full hearing of the petition, not by a preliminary objection.
What constitutes a valid preliminary objection
Applying Mukisa Biscuit and Oraro v Mbaja, a preliminary objection must be a pure point of law not dependent on ascertainment of facts
The court restated the classic test that a preliminary objection is argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or where judicial discretion is sought. The respondents' grounds, particularly on how the suit property was acquired, required factual inquiry and therefore could not dispose of the petition summarily.
Constitutional avoidance in land disputes
Obiter: constitutional petitions and judicial review are not appropriate procedures for determining land ownership disputes; a civil suit is the proper forum
The court expressed agreement with the respondents that the complaint of trespass and threatened eviction has a civil law remedy and that the petitioner should have filed a civil suit for injunction. Issues of ownership of land arising from an allegedly irregular sale of public land should be determined in a normal civil suit, not a constitutional petition.
Legal principles established
#- A preliminary objection cannot be used to overturn a finding of a prima facie case made in a conservatory order ruling; such a finding can only be rebutted on appeal or at the hearing of the petition
- A preliminary objection must raise a pure point of law on assumed facts; it fails where facts must be ascertained
Court orders
#- 1.The respondents' notice of preliminary objection dated July 6, 2022 is dismissed
- 2.Costs of the preliminary objection to be in the cause
- Jurisdiction invoked
- Constitutional petition invoking the Environment and Land Court's jurisdiction under Article 162(2) of the Constitution (as pleaded by the parties; the judgment does not expressly cite the provision)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wanga & another v Mudeizi (Land Case Appeal E095 of 2024) [2026] KEELC 3428 (KLR)[2026] KEELC 3428 (KLR)8 Jun 2026applied
Cite this brief
#Cite this brief
Caselaw, "Rado Development Company Limited v County Government of Kisumu & another", Case Analysis (2022). Environment & Land Petition E003 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15469/eng@2022-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.