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ELCOtherConstitutional Petition (Notice of Motion dated 21st May 2025)

Gachau & 6 others (Suing on their own behalf and on behalf of appropriately 40 residents of Kangemi Central Ward-Kangora Location in Westlands Constituency, the Riruta Muslim Community in Dagorretti North Constituency, and residents of Kabiro Ward, all within Nairobi County) v County Executive Committee Member-Built Environment & Urban Planning-Nairobi City County & 5 others; Kenya Human Rights Commission & 2 others (Interested Parties) (Environment and Planning Petition E018 of 2025) [2025] KEELC 8186 (KLR)

High Court of Kenya (Environment and Land / Constitutional jurisdiction under Article 165(3)(b))
24 November 2025
TMT. Murigi
3,740 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Nairobi court ruled the Nairobi River corridor land dispute is too important for one judge, sending it to the Chief Justice to appoint a larger bench.

What this practically means

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Executive summary

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The Petitioners, alleging to be registered or beneficial owners of parcels within the Nairobi River Corridor occupied for over four decades, moved the court by Notice of Motion dated 21st May 2025 seeking conservatory orders restraining the Respondents from entering, demolishing, evicting or interfering with their land, from declaring the Nairobi River Corridor and its tributaries a Special Planning Area (SPA), and from constructing affordable housing on the Nairobi River Basin. They contended that the 1st Respondent's Notice of Intention to declare the corridor an SPA was intended to alienate private land, including land hosting schools and mosques, for affordable housing without compensation, in violation of Articles 28, 29, 32, 40(1), 42, 43, 47, 48, 53, 54 and 57 of the Constitution, and that public participation was inadequate as the notice was published only in English. The Respondents countered that the SPA responds to flooding, that planning duties are mandated by the Constitution and county legislation, and that property rights under Article 40 are not absolute. Rather than determining the conservatory orders on their merits, the court posed the question whether the Petition raises a substantial question of law warranting referral to the Chief Justice under Article 165(4). Applying established certification principles, the court held that the Petition raises substantial questions of general public importance affecting communities along the river across Nairobi, Kiambu and Machakos Counties, and directed that the file be placed before the Chief Justice for empanelment of an uneven number of judges, not less than three.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application and Petition raise a substantial question of law to warrant the file being placed before the Chief Justice for empanelment of a bench under Article 165(4) of the Constitution

Key legal issues

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01

Certification of a petition as raising a substantial question of law under Article 165(4) of the Constitution

Holding

The Petition raises substantial questions of law of general public importance affecting communities along the Nairobi River across three counties, warranting referral to the Chief Justice for empanelment of an uneven number of judges, not less than three.

Reasoning

The court traced the jurisprudence on certification under Article 165(4), drawing from Community Advocacy and Awareness Trust, the Indian Supreme Court's test in Sir Chunilal Mehta, and Kenyan Court of Appeal and Supreme Court pronouncements. It found that the threatened declaration of the Special Planning Area affects a broad cross-section of the public across Nairobi, Kiambu and Machakos Counties, and that the determination would be enriched by input of more than one judge.

p. 9

Legal principles established

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  • A substantial question of law under Article 165(4) is one of general public importance or one that affects the rights of a large cross-section of the public, and each case must be considered on its merits by the certifying judge

Court orders

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  1. 1.The Petition is certified as raising substantial questions of law of general public importance under Article 165(4) of the Constitution
  2. 2.The Petition be placed before the Honourable Chief Justice to consider constituting an uneven number of judges, not less than three, to hear and determine the Petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

TM
majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23 and 165(3)(b) of the Constitution; certification under Article 165(4)

Relief refused

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Conservatory orders restraining eviction, declaration of the Special Planning Area, and interference with title deeds were not granted at this stage; the court instead directed certification for empanelment of a bench

The court determined that the substantial questions raised should first be placed before the Chief Justice for empanelment of an uneven number of judges

p. 10

Costs

No costs order made in the ruling.

Quotable passages

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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 find and hold that this Petition raises substantial questions of law of general public importance which directly and substantially afiect the rights of the Petitioners herein and communities living around the Nairobi River and whose determination will have a significant bearing on the public interest.
p. 9Certification under Article 165(4)
Consequently, this Petition should be placed before the Honourable Chief Justice for Her Ladyship to consider constituting an uneven number of judges, not less than three, to hear and determine this Petition.
p. 10Final orders / referral to Chief Justice
Accordingly, a substantial question of law is one that is of general public importance or one that afiects the rights of a large cross-section of the public.
p. 9Definition of substantial question of law

Issues in the judgment

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minor

Petitioners invoke Sections 28, 29 and 30 of the 'Physical Planning Act' in submissions while the supporting affidavit refers to the 'Physical and Land Use Planning Act'; the naming is inconsistent within the judgment

minor

Interested parties referenced at paragraphs 43–45 without their names being stated in the judgment

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, "Gachau & 6 others (Suing on their own behalf and on behalf of appropriately 40 residents of Kangemi Central Ward-Kangora Location in Westlands Constituency, the Riruta Muslim Community in Dagorretti North Constituency, and residents of Kabiro Ward, all within Nairobi County) v County Executive Committee Member-Built Environment & Urban Planning-Nairobi City County & 5 others; Kenya Human Rights Commission & 2 others (Interested Parties) (Environment and Planning Petition E018 of 2025) [2025] KEELC 8186 (KLR)", Case Analysis (2025). Constitutional Petition (Notice of Motion dated 21st May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8186/eng@2025-11-24

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