Ndambuki v County Government of Makueni & 4 others (Environment & Land Petition E001 of 2023) [2025] KEELC 4971 (KLR)
The bottom line
#A landowner's constitutional challenge to a Makueni county borehole failed because he couldn't prove his rights were actually violated.
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's rights under Article 40 of the Constitution were violated through alleged compulsory acquisition of Makueni/Uvaleni/161 and trespass/piping on Makueni/Uvaleni/1761
- 2.Whether the Petitioner's rights under Article 42 (clean and healthy environment) were violated by the drilling and operation of the Mbiini borehole
- 3.Whether the 4th and 5th Respondents had capacity to sign the proposal document of May 2023 over the deceased's land
- 4.Whether the Petitioner is entitled to the reliefs sought in the petition
Key legal issues
#Alleged violation of Article 40 property rights by compulsory acquisition without compensation
No compulsory acquisition was undertaken; the Petitioner's own pleadings place the 20x15m portion on riparian land, which is not private land, so no acquisition arose
The court found that no compulsory acquisition occurred over either title. The Petitioner himself stated that a survey showed the borehole portion fell on riparian land. Since riparian land cannot be privately owned or acquired, the compulsory acquisition claim failed. The claim of pipes laid and machinery passing over Makueni/Uvaleni/1761, if proved, sounds in tort, not under Article 40.
Alleged violation of Article 42 right to a clean and healthy environment
The Petitioner did not remotely demonstrate how the completed borehole would affect the Kwangole River ecosystem, vegetation or water catchment areas
The court applied the Communication Commission of Kenya requirement of a link between the aggrieved party, the constitutional provisions and the manifestation of contravention. The project was complete and benefiting the community, and the Petitioner adduced nothing showing how groundwater drawing would destabilise the ecosystem or degrade the river basin, so the Article 42 claim failed.
Validity of the 4th and 5th Respondents' consent/proposal document over the deceased's land
The claim failed because the Petitioner did not disclose his relationship with the 4th and 5th Respondents, indicating lack of good faith
Although the Petitioner argued the consent was a nullity for want of capacity or power of attorney, the court observed he never disclosed his relationship to the 4th and 5th Respondents while asking the court to nullify their signature. This absence, coupled with the failure to prove constitutional violations, led to dismissal of the petition in its entirety.
Legal principles established
#- A party invoking Article 22(1) must show the rights alleged to be infringed and the basis of the grievance - the Anarita Karimi Njeru principle
- Riparian land is not private land capable of compulsory acquisition
- Claims in tort for damage caused by machinery passing over land do not found a constitutional petition under Article 40
Court orders
#- 1.The constitutional petition is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22(1), 23, 40, 42 and 70 of the Constitution of Kenya (constitutional petition for violation of fundamental rights)
Relief refused
#All twelve reliefs sought in the petition (declarations under Articles 40 and 42, certiorari, permanent injunctions, compensation, prohibition and reparation)
The Petitioner failed to demonstrate any infringement of his rights under Articles 40 and 42; no compulsory acquisition took place and no environmental impact was demonstrated
Costs
Dismissed with no orders 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.
I therefore find that the constitutional petition by the Petitioner is devoid of merit. The same is dismissed with no orders as to costs.
As the Petitioner has not demonstrated any infringement of his rights under Article 40 and 42 of the Constitution, he is not entitled to any of the reliefs in the petition.
all riparian land is not private land which can be acquired by either the County Government or National Government
If the heavy machines destroyed his land in whichever form, his remedy lies elsewhere but not through a Constitutional Petition.
Issues in the judgment
#The judgment refers to the parcel inconsistently as Makueni/Uvaleni/161 and 1761 and at one point '1761' appears where '161' may be intended; also repeated OCR-type errors ('afiect', 'ofioading', 'eficacy')
The Respondents are never formally identified by full names in the judgment, only by number; the court and station are also not expressly stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndambuki v County Government of Makueni & 4 others (Environment & Land Petition E001 of 2023) [2025] KEELC 4971 (KLR)", Case Analysis (2025). Constitutional Petition filed 25th August 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4971/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.