The Environment and Land Court has blocked the Kiambu County government from forcing a private golf club to cede 20 acres of land, ruling that the move was unlawful and procedurally flawed.
In its judgment, the court held that the county acted outside the law by imposing the surrender as a condition for lease renewal without following statutory requirements.
The Kimani Wamatangi-led administration had argued that it needed the land to create public amenities, including a market, bus park, and public park, to serve Kiambu’s growing population.
But the court ruled that ‘the duty to provide public amenities cannot be discharged by trampling on the rule of law.’ It faulted the county’s approach as arbitrary and unconstitutional.
The dispute pits Kiambu Club Limited, a century-old members’ golf club, against the county, the National Land Commission, and Kiambu Township MCA Francis Koina over control of a 75-acre parcel registered as LR No. 9037.
Founded in 1916, the club has occupied the land for over a century. It first received a 33-year lease in 1956, renewed in 1989 for another 33 years that expired in March 2022.
Ahead of expiry, the club applied for renewal, citing its compliance with lease conditions, including payment of rates and taxes. It argued that past renewals created a legitimate expectation that its application would be fairly considered.
The conflict escalated when the county declined to renew the lease on existing terms and instead demanded that the club cede 20 acres for public utilities, including a market, bus park, and public park.
The club moved to court, arguing that the demand was arbitrary, lacked legal basis, and violated its rights to property and fair administrative action.
The county defended its position, arguing that the lease had expired and the land had reverted to public ownership. It said renewal was conditional and that public interest justified reclaiming part of the land for community use.
The MCA told the court that the land served only about 350 members, while tens of thousands of residents needed space for essential services.
But the court rejected the county’s approach, finding that the demand to surrender land was made without involving the National Land Commission and without issuing the required five-year notice.
‘The demand to cede land without compensation while a pre-emptive right exists is a constructive taking that offends Article 40 of the Constitution,’ the court ruled.
The court found that although the lease had expired, the club’s continued payment of rates, which the county accepted, created a lawful periodic tenancy.
This, the court said, meant the club remained a lawful occupant entitled to legal protection until proper processes were followed.
‘The continued acceptance of rent/rates creates a periodic tenancy. While this is not a 99-year title, it is a lawful possession that entitles the Petitioner to the protection of the law. Property rights under Article 40 are not limited to absolute titles but encompass the bundle of rights held by a lawful occupant,’ the court held.
The court further ruled that the club had a legitimate expectation that its renewal application would be processed fairly and transparently.
It noted that more than a century of occupation and timely renewal application imposed a duty on the state to act lawfully and not capriciously.
‘The state cannot remain silent or act capriciously when a long-term investor seeks renewal,’ the court said.
The court also pointed to procedural breaches, including the failure to involve the National Land Commission and to follow laid-down renewal guidelines.
It dismissed the argument that public interest could override legal requirements, stating that any acquisition of land must follow due process and include compensation.
‘Public interest cannot be used as a shield for a breach of the law,’ the court said.
The court quashed the county’s decision imposing the 20-acre condition and ordered a fresh lease renewal process within 90 days, to be conducted jointly with the National Land Commission.
It also issued a permanent injunction barring the county government and its agents from interfering with the land until the process is completed.
In addition, the court awarded the club Sh3 million in damages for violation of its right to fair administrative action and for property damage linked to the dispute.