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ELCDismissedNot stated in judgment (Petition dated 30th June 2023)· [2025] KEELC 4712 (KLR)

Tonui & 13 others v County Government of Kajiado & another (Environment & Land Petition E001 of 2023) [2025] KEELC 4712 (KLR)

Environment and Land Court
19 June 2025
LKL. Komingoi
2,695 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed Kajiado property owners' challenge to a demolition notice, ruling road reserves are public land and the petition was poorly pleaded.

What this practically means

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Executive summary

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The Petitioners, residents and property owners at Helena Estate, Kajiado North Sub-County, petitioned against the County Government of Kajiado following a public notice dated 11th May 2023 requiring owners who had encroached on road reserves (including a 6-metre reserve known as Fatima Road) to realign fences and demolish offending structures within 14 days, failing which the County Government would demolish them. The Petitioners sought declarations that the threatened demolition and eviction violated Articles 27, 28, 40, 43 and 47 of the Constitution, a permanent injunction against demolition, and general damages, contending that any deprivation of private property required compulsory acquisition under Sections 107-133 of the Land Act, 2012. The 1st Respondent, through its County Land Surveyor, maintained that the road reserve was public land, that only offending encroaching structures were targeted, that no approvals had been obtained for structures on the reserve, and that compulsory acquisition did not apply. The 2nd Respondent did not participate. L. Komingoi J framed four issues and found the Petition incompetent for failing the Anarita Karimi Njeru standard of pleading and proving constitutional violations, and for raising contested factual questions about ownership and compulsory acquisition that required a suit rather than a petition. On the merits, the court held that a road reserve is public land not subject to compulsory acquisition, that the notice was lawful and gave the Petitioners an opportunity to engage the County, and that the Petition was premature for failure to exhaust statutory dispute resolution mechanisms under the Physical and Land Use Planning Act. The Petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Competency of the Petition

Holding

The Petition is incompetent for failure to satisfy the Anarita Karimi Njeru standard; the proper forum was a suit for determination of contested facts on ownership and compulsory acquisition

Reasoning

The court held the petitioners failed to prove violations of Articles 27, 28, 43 and 47, and that where ownership of parcels and compulsory acquisition are in contest, a suit rather than a petition is the appropriate vehicle so contested facts can be determined. It adopted the Gabriel Mutava principle that constitutional litigation should not substitute statutory forums.

p. 7
02

Whether rights under Articles 27, 28, 40, 43 and 47 were violated

Holding

No violation established; the notice of 11th May 2023 targeted only structures encroaching on the road reserve and afforded an opportunity to engage the 1st Respondent

Reasoning

The petitioners admitted a 6-metre road reserve existed; the notice did not mention demolition of houses but required realignment within 14 days. The 1st Respondent was executing its mandate under the Physical and Land Use Planning Act. The road reserve is public land, so compulsory acquisition under Sections 107-133 of the Land Act does not apply.

p. 7
03

Entitlement to reliefs

Holding

Petitioners not entitled to any of the reliefs sought; petition premature as dispute resolution mechanisms were not exhausted

Reasoning

Having found no proved violation and a competent statutory framework governing the road reserve, the court found the petition premature because the petitioners could still engage the dispute resolution mechanisms in the Physical and Land Use Planning Act before resorting to constitutional litigation.

p. 7

Legal principles established

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  • A constitutional petition must cite with particularity the constitutional provisions violated and the manner of violation, supported by evidence or a factual basis (Anarita Karimi Njeru standard)
  • Constitutional litigation should not be used where suitable statutory forums exist for resolving the dispute
  • A road reserve is public land and is not subject to compulsory acquisition

Court orders

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  1. 1.The Petition is dismissed
  2. 2.Each party to bear own costs
Jurisdiction invoked
Articles 27, 28, 40, 43 and 47 of the Constitution; Section 13 of the ELC Act

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, "Tonui & 13 others v County Government of Kajiado & another (Environment & Land Petition E001 of 2023) [2025] KEELC 4712 (KLR)", Case Analysis (2025). Not stated in judgment (Petition dated 30th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4712/eng@2025-06-19

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