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ELCDismissedPetition No. E-not stated (Amended Petition dated 23rd June 2022)· [2025] KEELC 106 (KLR)

Offshore Trading Company Limited v Attorney General & 2 others; Kenya Deposit Insurance Corporation (Interested Party) (Environment & Land Petition 4 of 2021) [2025] KEELC 106 (KLR)

Environment and Land Court
23 January 2025
5,963 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Petitioner sought declarations that it was entitled to quiet possession of L.R No. 12979/3 I.R No. 61844 (about 404.58 hectares), a permanent and mandatory injunction, general damages, an order quashing Kenya Gazette Notice No. 3829 of 3rd June 2020 declaring the property a protected area, and in the alternative compensation of Kshs. 15.7 billion. It claimed it acquired the land in 1993 from the Nairobi City Council in exchange for L.R No. 18170 plus payment, and relied on a consent order in Petition No. 51 of 2011 quashing an earlier gazette notice revoking its title. The 1st and 3rd Respondents contended the land was hived off L.R No. 12979, public utility land reserved for the Dandora Sewerage Treatment Plant, and not available for private alienation. The 2nd Respondent maintained the allocation was irregular and corrupt, with no records of the swap or of a Town Planning Committee approval. The Interested Party, liquidating agent for Post Bank Credit Limited, asserted a chargee's interest. Framing one issue - whether the Petitioner met the threshold for Article 40 orders - the court held that Article 40(6) does not protect unlawfully acquired property. Applying Dina Management, it found the title an end product of a process lacking evidence of the requisite Town Planning Committee meeting, with payment documents referring to L.R No. 18170 and no allotment letters for the suit property. The 1st Respondent also failed to prove the land was public utility land. The consent order could not override the Constitution. The Petition was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Petitioner's rights under Article 40 of the Constitution were violated

Holding

No; Article 40 does not protect unlawfully acquired property and the Petitioner failed to prove lawful acquisition of the suit property

Reasoning

Before Article 40 protection can attach, the court must be satisfied the property was not unlawfully acquired (Article 40(6)). The Petitioner's title lacked evidence of the requisite Town Planning Committee meeting; correspondence and payment evidence related to L.R No. 18170 rather than the suit property; and the claimed swap was evidenced only in the title without written agreements or minutes. The first Respondent also failed to prove the land was public utility land. On balance the claim of unlawful acquisition raised by the 2nd Respondent was proven.

p. 12
02

Whether the suit property was public utility land not available for alienation

Holding

The 1st Respondent failed to prove the suit property was public land

Reasoning

The 1st Respondent did not produce titles or maps relating to L.R No. 12979, evidence of phased construction of the sewerage plant, or the expert opinions referenced in its affidavits. Only an undated letter, a memo and the Gazette Notice were produced, which proved action taken in 2020 but not that the property was public land.

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03

The effect of the consent order entered in Petition No. 51 of 2011

Holding

The consent cannot override Article 40(6) of the Constitution, especially where some of the current parties were not party to it

Reasoning

The Petitioner relied on the consent order as a bar to revocation of its title. The court held that a consent between parties cannot usurp a constitutional provision, and that some parties in the present petition were not part of that consent. Additionally, the 2nd Respondent contended the Registrar of Titles who entered the consent lacked locus.

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Legal principles established

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  • A certificate of title is an end product of a process; if the process preceding issuance did not comply with the law, the title is not indefeasible and Article 40 protection does not extend to it
  • Public utility land set aside for a public purpose is held in trust and is not available for alienation to a private developer
  • A consent between parties cannot override a constitutional provision, particularly Article 40(6), especially where some parties were not party to the consent
  • A party asserting that land was acquired unlawfully bears the burden of proving that assertion

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Costs to the Respondents
Jurisdiction invoked
Articles 22 and 40 of the Constitution of Kenya, 2010 (constitutional petition under Article 22(1))

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Offshore Trading Company Limited v Attorney General & 2 others; Kenya Deposit Insurance Corporation (Interested Party) (Environment & Land Petition 4 of 2021) [2025] KEELC 106 (KLR)", Case Analysis (2025). Petition No. E-not stated (Amended Petition dated 23rd June 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/106/eng@2025-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.