Msechu & 2 others (Suing on their own and on behalf of 10 others and members of Kagujo Self Help Group) v Gichamba & 6 others; Jilo & 13 others (Interested Parties) (Environment and Land Petition 110 of 2015) [2025] KEELC 8612 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed Mombasa residents' constitutional housing-rights petition, ruling the landlord-tenant dispute should have been filed as an ordinary civil suit.
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 petition raises any constitutional questions for determination.
- 2.Who bears the costs?
Key legal issues
#Whether the petition raised constitutional questions
The petition failed the Anarita Karimi Njeru precision threshold; the only right clearly pleaded was Article 43(1)(b), and the dispute was essentially contractual/proprietary between private parties.
The court applied the Anarita Karimi Njeru standard as endorsed in Mukhobi v Mukhobi and Mumo Matemu. It found no dispute about registered ownership, and the claim centred on eviction and lease agreements. Contractual disputes lacking a real constitutional dimension must be litigated in ordinary civil suits, not petitions.
Whether a private landowner can be compelled to provide the right to housing
No. The duty of progressive realisation of Article 43 rights lies with the State; private entities have only a negative obligation not to violate the right.
Applying the Supreme Court's decision in Musembi v Moi Educational Centre, the court held the obligation does not extend horizontally. The petitioners voluntarily entered lease agreements with the 1st respondent, and no state respondent was shown to owe them a duty to protect them against lawful distress for rent.
Costs
Petitioners, having lost and pursued individual rather than public benefit, bear the 1st and 2nd respondents' costs; public-entity respondents bear their own costs.
Exercising discretion under section 27(1) of the Civil Procedure Act, costs follow the event. The court differentiated private respondents, who recover costs, from public entities, which were not awarded costs given the petition's private character.
Legal principles established
#- Constitutional petitions must set out with reasonable precision the complaint, the constitutional provisions infringed and the manner of infringement (Anarita Karimi Njeru standard).
- The obligation to progressively realise Article 43 socio-economic rights rests on the State and does not extend horizontally to private entities, though private entities must not themselves violate those rights.
- Where no constitutional issue arises and adequate remedies exist in other laws, constitutional litigation is an abuse of process; such disputes must be pursued through ordinary civil suits.
Court orders
#- 1.The petition is hereby dismissed.
- 2.The petitioners to bear the costs for the 1st & 2nd respondents.
- 3.The 3rd, 4th and 6th respondents, being public entities, will bear their own costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya 2010, Bill of Rights enforcement jurisdiction (Articles 43, 20, 21, 22-23 as invoked in the petition); land and environment jurisdiction of the ELC
Relief refused
#Declarations that the 1st respondent's threatened sale/evictions violate Articles 2(5), 28, 43(1)(b) and 47(1) of the Constitution
Claim against private entities fails; progressive realisation of Article 43 rights is the State's mandate and does not extend horizontally to private entities
Registration of the petitioners as proprietors by adverse possession and related judicial review orders (certiorari/mandamus)
The petition was an inappropriate vehicle; the dispute is contractual and should have been pursued in an ordinary civil suit
Prohibitory orders restraining interference with the residents' occupation pending NLC determination
Petition failed to meet the Anarita Karimi Njeru threshold and was dismissed in its entirety
Costs
Petitioners to bear the costs of the 1st & 2nd respondents; the 3rd, 4th and 6th respondents, being public entities, to bear their own 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 find that the petition is without merit and is for dismissal.
The petitioners to bear the costs for 1st & 2nd respondents.
The 3rd, 4th and 6th respondents being public entities will bear their own costs.
progressive realization of article 43 rights was the mandate of the State, and that obligation does not extend horizontally to private entities
that does not give the licence to every litigant to come to court by way of a constitutional application even where there is no constitutional issue arising and where there are adequate remedies provided in other laws to cover such situations
Issues in the judgment
#The petition's official case/cause number is not stated anywhere in the judgment text; only the amended petition date (17th April 2019) and the suit property (MN/II/122) appear.
Interested parties are listed in the coram at the end of the judgment ('Interested Parties : No appearance') but their identities and pleadings are not set out in the body of the judgment.
Typographical/date inconsistencies in the judgment: the replying affidavit of the 1st respondent is described as sworn 24th May 2017 despite the petition being dated 2019, and the year 2010 is inconsistently given for PW1's evidence ('sometime in 2010, the 1st respondent refused to accept the payment').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Msechu & 2 others (Suing on their own and on behalf of 10 others and members of Kagujo Self Help Group) v Gichamba & 6 others; Jilo & 13 others (Interested Parties) (Environment and Land Petition 110 of 2015) [2025] KEELC 8612 (KLR)", Case Analysis (2025). ELC Petition (Mombasa) – amended petition dated 17th April 2019 (being Petition MN/II/122 dispute; exact petition number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8612/eng@2025-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.