Business Owners and Constitutional Petitions: Protecting Property Rights Under Article 40

Business Owners Constitutional Petitions Property Rights Kenya cases under Article 40 are usually assumed to be about farmland and compulsory acquisition. That is where most Article 40 litigation historically concentrated, but the provision protects a considerably wider category of property than title deeds alone, and Kenyan courts have started applying it directly to businesses whose licences, stock or trading premises are interfered with by the state, not only to landowners.

What Article 40 Actually Covers

Article 40(1) guarantees every person the right, individually or in association with others, to acquire and own property of any description, anywhere in Kenya, subject to Article 65. Article 40(2) prohibits Parliament from enacting laws permitting arbitrary deprivation of property. Article 40(3) is the core protection: the state may not deprive a person of property except through a lawful land acquisition process under Chapter Five of the Constitution, or for a public purpose under a law that requires prompt payment in full of just compensation and guarantees court access. Article 40(6) carves out property that has been found to have been unlawfully acquired, which receives no protection under the article at all.

One correction worth making clearly: the commonly assumed carve-out for land held by non-citizens does not sit inside Article 40(3) to (6). It is a separate provision, Article 65, which Article 40(1) merely cross-references. Article 65 caps land held by a non-citizen, including a body corporate not wholly owned by citizens or a trust with any non-citizen beneficiary, at a leasehold of no more than ninety-nine years, with any purported longer grant automatically read down to that limit. A foreign-invested business structuring its asset ownership in Kenya needs to plan around Article 65 specifically, not assume it is simply one more exception buried in Article 40 itself.

A Trading Licence Is Property Too

The High Court confirmed this directly in Leah Wambui Kamau t/a Lewaka Bar & 3 Others v Deputy County Commissioner Rongai Sub County & 2 Others [2024] KEHC 10993. Four bar and restaurant proprietors had their licensed premises shut down by a Deputy County Commissioner and an Assistant Chief acting under a presidential directive on illicit brews, without prior notice or a hearing. The court held that a valid trade licence and liquor licence established the petitioners’ right to property under Article 40, and that closing premises operating under a valid licence, cutting off their income, infringed that right, in addition to a separate breach of Article 47 for the lack of notice or reasons. It is worth being precise about the remedy actually granted: the court issued declarations of unlawfulness but declined both a permanent injunction and damages, reasoning that the underlying enforcement power itself was legitimate and only the process used had been flawed. A declaration establishing that a licence is protected property is still a meaningful outcome, but it is not the same as an award of damages.

Seized or Detained Goods Can Amount to Deprivation

The more consequential recent case for businesses dealing with imports or regulated goods is Osho Chemicals Industries Limited v Attorney General & 2 Others; Mitchell Cotts (K) Limited & 3 Others [2025] KEHC 210. An importer’s fertiliser consignment was held in a bonded warehouse pending testing by the Directorate of Criminal Investigations and the Kenya Bureau of Standards, and the delay caused the goods to expire and lose value. The High Court declared the failure to authorise timely clearance unlawful, capricious and in breach of both Article 47(1) and Article 40(3), and, critically, held the respondents jointly liable for the resulting loss, finding their conduct amounted to arbitrary deprivation of property. The court went further and set a concrete benchmark: detaining an importer’s goods beyond twenty-one days in bonded storage, absent fault on the importer’s part, is inherently unreasonable and unlawful. This gives any business whose stock is held by KRA, KEBS, or another regulator pending investigation or testing a specific number to point to, and a real prospect of recovering the resulting loss rather than only a declaration.

Building the Right Case

The difference in outcome between the two cases above is instructive. Lewaka Bar produced a declaration because the loss claimed was future income from a closed business, harder to quantify and tied to a legitimate underlying enforcement power exercised badly. Osho Chemicals produced an actual damages finding because the loss was a specific, quantifiable consignment of goods that physically expired due to unreasonable delay. A business bringing an Article 40 claim should focus on documenting concrete, quantifiable loss wherever possible, since that is what has translated into more than a declaratory remedy in the reported cases.