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ELCPartially AllowedPetition (not stated in judgment as provided; petition filed 16th December 2020)· [2025] KEELC 7403 (KLR)

Rado Development Company Limited v County Government of Kisumu & another (Environment and Land Petition E003 of 2020) [2025] KEELC 7403 (KLR)

Environment and Land Court
30 October 2025
7,853 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 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, registered leasehold proprietor of Title No. Kisumu Municipality/Block 9/111, which it purchased from the County Council of Kisumu in 2012 for Kshs. 31,000,000/- through a public tender, petitioned against a public notice dated 9th December 2020 issued under the letterhead of the County Government of Kisumu requiring occupants of public parking/playgrounds in Kisumu City to vacate within 7 days failing eviction and demolition. The notice was affixed at the property's gate and required the Petitioner and its 74 tenants to vacate within 48 hours. The Respondents denied issuing the notice, contended the property was public land acquired corruptly during the transition period in breach of the Transition to Devolved Government Act 2012, and filed a cross-petition seeking cancellation of the Petitioner's title, rectification of the register, and eviction. The court found on the evidence that the Respondents issued the notice, noting their failure to deny it when the Petitioner's advocates wrote and their later justification of it. Holding that only a court may determine under Article 40(6) that property was unlawfully acquired, and that administrative action required notice and a hearing, the court found a threatened violation of the right to property and a violation of fair hearing and fair administrative action rights. It declined to entertain the cross-petition as a purely civil claim outside Articles 22 and 23, also noting the property was charged to Bank of Africa Limited, a third party not before the court. Damages and compensation were refused as no loss was proved and the property was not taken. The petition succeeded in part and the cross-petition was dismissed, with costs to the Petitioner.

Key legal issues

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01

Whether the impugned notice violated the Petitioner's rights to property, fair hearing and fair administrative action

Holding

The court found the Respondents issued the notice and thereby threatened the Petitioner's right to property and violated its rights to fair hearing and fair administrative action.

Reasoning

The notice declared the suit property public parking/playground and required vacation within 7 days failing demolition, without notice or hearing. Only a court may determine under Article 40(6) that a title was unlawfully acquired. The Respondents had approved the Petitioner's developments and permits for years, and could not be judges in their own cause.

p. 13
02

Whether the Respondents' cross-petition seeking cancellation of the Petitioner's title was properly before the court

Holding

Declined; the cross-petition raised purely civil claims of fraud and illegality outside the court's Article 22 and 23 jurisdiction.

Reasoning

A claim to recover land allegedly acquired illegally is a civil claim, not a constitutional one; the constitutional avoidance principle applies where a remedy exists in civil law. Further, the property was charged to Bank of Africa Limited, a third party with an interest and a right to be heard before the title is nullified.

p. 15
03

Whether the Respondents issued the impugned notice dated 9th December 2020

Holding

The court was satisfied the Respondents issued and affixed the notice, notwithstanding DW1's denial.

Reasoning

The notice bore the 1st Respondent's letterhead and was signed by the 2nd Respondent. The Petitioner's advocates wrote to the 2nd Respondent the day after it was affixed; the Respondents never denied issuing it, and later justified it in the cross-petition and submissions as lawful enforcement of the public interest.

p. 9

Legal principles established

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  • A finding that property was unlawfully acquired under Article 40(6) of the Constitution can only be made by a court of law through due process; state organs cannot dispossess a registered proprietor without due process.
  • Claims of fraud or illegality in acquisition of land are civil claims outside the jurisdiction conferred by Articles 22 and 23 and should be pursued in a court exercising civil jurisdiction.

Court orders

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  1. 1.A prohibitory order restraining the Respondents jointly and severally from entering upon or attempting to demolish the structures on Title No. Kisumu Municipality/Block 9/111 pursuant to the notice dated 9th December 2020 or otherwise interfering with the Petitioner's quiet possession and enjoyment of the suit property
  2. 2.A declaration that the Public Notice dated 9th December 2020 is null and void and of no legal consequence to the extent that it relates to the suit property
  3. 3.A declaration that the Respondents threatened and violated the Petitioner's constitutional rights to property and fair administrative action
  4. 4.A declaration that the Respondents acted capriciously, arbitrarily, and abused and exceeded their lawful powers
  5. 5.Costs of the petition awarded to the Petitioner
  6. 6.The Respondents' cross-petition dismissed with costs
Jurisdiction invoked
Articles 22 and 23 of the Constitution; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

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, "Rado Development Company Limited v County Government of Kisumu & another (Environment and Land Petition E003 of 2020) [2025] KEELC 7403 (KLR)", Case Analysis (2025). Petition (not stated in judgment as provided; petition filed 16th December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7403/eng@2025-10-30

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