Fairplay Enterprises Limited v John Katana & Persons Unknown (Environment and Land Petition E025 of 2024) [2026] KEELC 2115 (KLR)
The bottom line
#A Mombasa court dismissed a landowner's constitutional petition, ruling that evicting private squatters requires a civil suit under the Land Act, not a rights petition.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Bill of Rights can be enforced horizontally against private persons for eviction of unlawful occupiers of private land
- 2.Whether the petitioner's right to property under Article 40 was violated by the respondents' occupation
- 3.Whether the proceedings against persons unknown by substituted service were procedurally proper
Key legal issues
#Horizontal application of the Bill of Rights to a private land dispute
The court affirmed horizontal application under Article 20(1) but declined to entertain the petition because it clothed a pure civil cause in constitutional garb
Article 20(1) binds all persons including private actors, so rights can be enforced horizontally. However, courts must balance rights enforcement against private law causes such as trespass and contractual autonomy. Allowing eviction claims disguised as constitutional petitions would open floodgates of camouflaged civil suits. Article 40 itself, read in whole, contemplates deprivation by the State, not by private individuals. The proper forum is a civil suit for eviction under section 152A of the Land Act.
Correct remedy for eviction of unlawful occupiers of private land
The petitioner should file a proper civil suit for eviction under section 152A of the Land Act
Sections 152A to 152F of the Land Act govern eviction of unlawful occupiers of private land. The court found the petition unfounded as a constitutional claim and held that the statutory civil procedure under section 152A provides the proper avenue for evicting the respondents. The petition therefore had no basis and was dismissed.
Legal principles established
#- Article 40 protects property rights against the State, not against private individuals
- Purely civil disputes such as trespass and eviction must be pursued under civil law, not by constitutional petition
- The Bill of Rights applies horizontally between private parties under Article 20(1), but its application is not absolute
Court orders
#- 1.The petition is dismissed with no order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 20, 22, 23 and 40 of the Constitution of Kenya, 2010; Article 20(2) cited as legal basis of the petition
Relief refused
#Declaration that respondents' occupation is unlawful and violates Article 40
The court held the dispute is purely civil and not enforceable by constitutional petition
Order of eviction from L.R. No. MN/111/520
Petition dismissed; petitioner directed to file a proper civil suit
Permanent injunction restraining trespass
Relief flowed from the dismissed petition
General damages for trespass
Relief flowed from the dismissed petition
Costs
No order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The petition therefore has no basis and is dismissed with no order as to costs.
the petition seeks to resolve a purely civil dispute between the petitioner and the respondents and that the same is actionable under civil law and not constitutional law and therefore the petition is unfounded
If parties were to be allowed to file constitutional petitions to pray for eviction and specific performance of contracts, it will open the flood gates for civil suits camouflaged as constitutional petitions.
I have lifted the whole Article 40 of the Constitution of Kenya to demonstrate that it does not envisage violation of property rights by an individual but by the state.
Under the 2010 Constitution of Kenya, fundamental rights have horizontal application, meaning they are enforceable between private parties and not just against the State, as per Article 20(1).
Issues in the judgment
#The judgment states it was 'DATED, SIGNED AND DELIVERED ELECTRONICALLY AT MOMBASA THIS 16th DAY OF APRIL 2026' but the electronic signature stamp records the date as 2026-04-17
Inconsistent transcription of the property number, appearing variously as MN/111/520, MN/ 1 11/520 and MN/ Ill/ 520
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fairplay Enterprises Limited v John Katana & Persons Unknown (Environment and Land Petition E025 of 2024) [2026] KEELC 2115 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2115/eng@2026-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.