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)
The bottom line
#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 Petitioner has met the threshold for grant of orders under Article 40 of the Constitution
Key legal issues
#Whether the Petitioner's rights under Article 40 of the Constitution were violated
No; Article 40 does not protect unlawfully acquired property and the Petitioner failed to prove lawful acquisition of the suit property
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.
Whether the suit property was public utility land not available for alienation
The 1st Respondent failed to prove the suit property was public land
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.
The effect of the consent order entered in Petition No. 51 of 2011
The consent cannot override Article 40(6) of the Constitution, especially where some of the current parties were not party to it
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.
Legal principles established
#- 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
#- 1.The Petition is dismissed
- 2.Costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22 and 40 of the Constitution of Kenya, 2010 (constitutional petition under Article 22(1))
Relief refused
#Declaration of quiet and peaceful possession and proprietary rights over the suit property
Article 40 does not protect unlawfully acquired property; the Petitioner failed to prove a lawful acquisition process
Permanent injunction against the Respondents
No violation of Article 40 established since the property was unlawfully acquired
General damages of Kshs. 1,000,000,000 / compensation of Kshs. 15,700,000,000
Contingent on proof of a violation of Article 40, which failed
Quashing of Kenya Gazette Notice No. 3829 of 3rd June 2020 and mandatory injunction to vacate
Dismissed with the whole Petition as unmeritorious
Costs
The Petition is dismissed with costs to the Respondents.
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.
For those reasons, the court finds the Petition to be unmeritorious, and the same is hereby dismissed with costs to the Respondents.
Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible.
The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.
The fact that the swap involving such big tracts of land is only evidenced in the title document, without the requisite written agreements or minutes, invalidates the swap, if at all it happened.
a consent between parties cannot usurp a constitutional provision, in this case Article 40 (6), and especially where the some of the parties herein were not part of the consent.
Issues in the judgment
#The case number of the Petition is not stated in the judgment; the record opens only with the Amended Petition dated 23rd June 2022
The Petitioner is never named in the body of the judgment; it is referred to only through its General Manager, Shakhalaga Khwa Jirongo
Inconsistent land parcel references: the surrendered parcel appears variously as L.R No. 18170 and L.R No. 1870
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.