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ELCDismissedELC Petition (Mombasa) – amended petition dated 17th April 2019 (being Petition MN/II/122 dispute; exact petition number not stated in judgment)

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)

Environment and Land Court
10 December 2025
3,667 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The petitioners, occupying portions of parcel MN/II/122 (Mainland North, Mombasa), petitioned under the amended petition dated 17th April 2019. They alleged they paid a stand premium ('Kilemba') exceeding seventy per cent of the nominal value plus ground rent to the 1st respondent, who nonetheless threatened to sell and evict them without providing alternative housing, violating Articles 2(5), 28, 43(1)(b) and 47(1). They sought declarations, prohibitory orders pending NLC review, judicial review orders against the Land Registrar, and registration as proprietors by adverse possession. The 1st and 2nd respondents maintained the suit property was private land, the petitioners were tenants under leases allowing construction of Swahili houses 'without land', and they had defaulted on ground rent prompting distress. The 4th respondent said the dispute was purely contractual and raised no constitutional issues. Evidence was taken from PW1, DW1 (the 1st respondent) and DW2 (a Land Registrar confirming the 1st respondent's registered title). Framing two issues (whether constitutional questions arose, and costs), the court applied the Anarita Karimi Njeru precision standard and the Supreme Court's Musembi decision, holding that the duty of progressive realisation of Article 43 rights rests on the State and does not bind private entities horizontally, save for a negative obligation not to violate rights. The court found the dispute essentially contractual and held it should have been pursued by ordinary civil suit. The petition was dismissed; the petitioners were ordered to pay the 1st and 2nd respondents' costs, while the 3rd, 4th and 6th respondents, being public entities, were to bear their own costs. Judgment delivered virtually by S. M. Kibunja, J, on 10th December 2025.

Questions the Court framed

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

  1. 1.Whether the petition raises any constitutional questions for determination.
  2. 2.Who bears the costs?

Key legal issues

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01

Whether the petition raised constitutional questions

Holding

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.

Reasoning

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.

p. 8
02

Whether a private landowner can be compelled to provide the right to housing

Holding

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.

Reasoning

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.

p. 8
03

Costs

Holding

Petitioners, having lost and pursued individual rather than public benefit, bear the 1st and 2nd respondents' costs; public-entity respondents bear their own costs.

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.The petition is hereby dismissed.
  2. 2.The petitioners to bear the costs for the 1st & 2nd respondents.
  3. 3.The 3rd, 4th and 6th respondents, being public entities, will bear their own costs.

The bench

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

majority

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

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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

p. 8

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

p. 8

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

p. 9

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

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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 that the petition is without merit and is for dismissal.
p. 9Disposition – dismissal of the petition
The petitioners to bear the costs for 1st & 2nd respondents.
p. 9Final orders – costs against petitioners
The 3rd, 4th and 6th respondents being public entities will bear their own costs.
p. 9Final orders – public entities bear own costs
progressive realization of article 43 rights was the mandate of the State, and that obligation does not extend horizontally to private entities
p. 8Horizontal application of socio-economic rights
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
p. 8Abuse of constitutional process where adequate civil remedies exist

Issues in the judgment

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minor

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.

minor

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.

minor

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

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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, "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.