Jaribu Credit Traders Limited v The Cabinet Secretary Ministry of Interior & Administration, Nairobi City County Government & The Honourable Attorney General

rights and freedoms under articles 27 (1), 40 (3), 47 (1) and 47 (2) of the Constitution. (b) Declaration that the actions and conduct of the order issued on 2/5/2024 by the 1st respondent are in breach of Article 47 of the Constitution and the Fair Administrative Action Act, rules of natural justice and therefore null and void. (c) Injunction barring the respondents, their agents, and, more so, the Nairobi regional and county security teams and the multi-agency team under the auspices of the National Disaster Operations Centre (NDOC) from entering into, breaking, destroying, demolishing or in any way interfering with the petitioner’s L.R NO. 209/7994/7 order of compensation for breach of the petitioner’s rights. (d) Order of restitution restoring the petitioner’s property LR No. 209/7994/7 to its current state as on the date of the petition. (e) In the alternative to prayer (v) above, the respondents do pay the petitioner the total costs for the repair of any Page 2 of 47

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damage occasioned to this property pleaded above, as shall be presented in any report to be adduced. (f) The petitioner pleads that it acquired L.R. No. 209/7994/7, hereinafter the subject property, around 1999 as per a title deed issued and a deed plan attached to the affidavit in support sworn by its director Suresh Kumar Nanalal Kantaria on 5.5.2024 as annexure marked SNK (1). 2. The petitioner pleads that it continued to enjoy peaceful occupation of the subject property until around October 2018, when the National Environmental Management Authority (NEMA), under the instructions of the respondent, proceeded to its premises, among other properties located along Dar es Salaam Road, industrial area and purported to allege that all those properties alongside the petitioner’s property encroached upon riparian reserves and thus needed improvement orders. 3. The petitioner avers that, aggrieved by the said allegations and improvement orders issued by the NEMA, proceeded to the National Environment Tribunal (NET) seeking reprieve, whereafter Page 3 of 47

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NET made a finding, among others, that the subject property did not encroach on the riparian reserves. 4. The petitioner avers that by virtue of that determination, its rights over the suit property were not only determined as juxtaposed to the riparian section but it had a legitimate expectation that the issue of its boundary wall and property had been fully determined and was not subject to challenge by any other body. 5. The petitioner avers that, regardless of the determination pursuant to a press release order issued by the 1 st respondent on 2.5.2024, it ordered that all persons residing within a 30-metre riparian corridor of rivers and other water courses across the county vacate immediately and in any case within 24 hours effective may 2nd 2024 at 18.30 hours failing which they will be subjected to mandatory evacuation for their safety and their premises, whether for public or private use hall be removed as per attached copy marked SK (3). 6. The petitioner avers that based on the order and directive, the 2 nd respondent through the Nairobi regional and county security teams and the multi-agency teams under the auspices of the National Disaster operation centre (NDOC), proceeded to the Page 4 of 47

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subject property as per attached photographs marked SK 4 to demarcate the subject property and its premises for demolition scheduled for 7/5/2024, without being allowed to represent its case and make submission on the demolition as per article 47 of the constitution and in breach of its right to own the subject property under article 40 of the constitution. 7. The petitioners aver that Article 27 (1) of the Constitution guarantees them the right to equal protection of the law and its benefits thereof, and in this case it is being denied by the respondents' right to enjoy fruits of its judgment in the Net determination in tribunal case no. 016 of 2018 as consolidated with NET 017, 018, 019, 022 and 023 of 2018, copies attached to the supporting affidavit as annexures SK (2). 8. The petitioner avers that the action by the respondents has therefore threatened and continues to threaten its fundamental rights and freedoms contrary to Articles 40 (3), 47(1) and (2) and 27 (1) of the Constitution, and unless the court intervenes by issuing the reliefs sought, there would be demolition and vandalism of its premises without any care and regard to its Page 5 of 47

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fundamental rights and freedom as guaranteed by the motion for Constitution without any justifiable cause and/or reason. 9. This petition was filed alongside a notice of conservatory dated 8.5.2024, to which an interim order was issued on 14.5.2024. The parties were then directed to file responses within 14 days. The interim orders were later extended on 13.6.2024. respond The respondents were granted more time to on 24/7/2024. The notice of motion was later compromised on 23/10/2024, stating that there will be no demolition until the petition is heard and determined. 10. The petitioner respondents were given time to submit documents before the pre-trial conference on 21.11.2024. The respondents did not comply even up to the pre-trial date on 13.2.2025. 11. When the matter came up on 13.5.2025, the court was told of another related matter, namely petition E012 of 2024. 12. The petition is opposed by the 1st and 3rd respondents' answer to the petition dated 3rd February 2024. 13. The 1st and 3rd respondent in reply to paragraph 5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,20,21,22,23 and 24 of the petition as the same is merely a reproduction of the provision of Page 6 of 47

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the law and no constitutional violation has been cited at all. Page 7 of 47

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14. The 1st and 3rd respondents deny the petitioner's averments at paragraphs 25, 26,27,28,29,30,31,32,33 and 34 and aver that the respondents were not a party to the said NET case no. 016 of 2018 and hence deny the allegations that the ruling arising from the said appeal is not binding on this court and nor does it have the effect to bind the court or the parties herein. 15. The 1st and 3rd respondents, in reply to paragraph 35 of the petition, aver that the petitioner's rights have not been violated at all. It is averred that the acquisition of land and/or any ownership over public land is not protected by law. Instead, it is averred that it is the petitioner who has encroached and trespassed onto the riparian land and who should honourably remove and vacate the riparian land to enable free flow of water and other antecedent functions of the riparian area. 16. The 1st and 3rd respondents aver that Rivers and all land between the high and low watermarks constitute public land under Article 62 of the Constitution, and the same vests in, and is held by the national government in trust for the people of Kenya, and is administered on their behalf by the National Land Commission; hence, it does not constitute private property for development by the petitioner. 17. The 1st and 3rd respondents aver that, notwithstanding the claim for allocation and title held by the petitioner, it does not Page 8 of 47

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take away the riparian right provided for under the law. 18. It is averred that riparian land, as buffers, has both ecological and environmental effects provided for under Articles 42, 69, and 70 of the Constitution and the Bill of Rights to human life and to a clean and healthy environment and safety of life of all within the flooding area. 19. The 1st and 3rd respondents further aver that the ruling of the Environment and Land Court and its observations that the 6meter riparian reserve had been observed, yet in the weather forecast, the country experienced flooding that included the area the petitioner has developed. 20. It is averred that the area in contention is within the riparian reserve, hence free flow likely to cause of Page 9 of 47 interference with the

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water with the attendant risk to cause loss of life arising from flooding out of blockage of the petitioner's building. 21. That the 1st and 3rd respondents aver that, with the coming into effect of the Environment Management and Coordination Act 1999, the said Act did not repeal the Survey Act, the repealed Government Land Act, the Registered Land Act, and the Registration of Titles Act. 22. The 1st and 3rd respondents aver that the impugned directive was to give notice to the affected parties to remove their offending structures that were likely to cause blockage of water and river flow. It is averred, therefore, that the said directive was not in violation of the petitioner's right to property at all, since Article 40 of the Constitution, despite guaranteeing the property right, also does not protect any property that is illegally, irregularly and unlawfully acquired, including the structures built on riparian and public land. 23. The 1st and 3rd respondents aver that, due to the urgency and the situation prevailing at the time of El Niño rains and under the Public Safety Act, the 1st respondent invoked the provisions of the said Act and directed that all persons within the riparian reserve and within areas that were likely to be affected by flooding to voluntarily remove all structures within riparian regions within the set timeline. 24. The 1st and 3rd respondents therefore aver that the right to Page 10 of 47

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be heard and/or notice to vacate given or issued, taking into consideration the circumstances, was adequate to save life and loss of businesses and hence the issue of violation of right to hearing did not apply. 25. The 1st and 3rd respondents, in reply to the petitioner’s allegations at paragraph 34 of the petition, aver that the Constitution at Article 27 on equal protection to every citizen does not exclude the right to protection that will arise from flooding with like loss of life. It is averred that the right is not exclusive to the petitioner on her invasion and blockage of the riparian area, as the riparian reserve is a public good to all and sundry. 26. The 1st and 3rd respondents, in response to the petitioner's allegations, aver further that the notice was conceived out of or was arising from heavy rains that caused several loss of life and displacement of persons. Page 11 of 47

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27. The 1st and 3rd respondents deny that the petitioner’s right to use of his property was denied or any loss was occasioned. It is averred that since rains are acts of God, if the government does not put in place measures to protect the citizens, including the petitioner, there is likely loss of life and property and hence the need to direct for the removal of structures within the riparian areas. 28. The 1st and 3rd respondents aver that the riparian reserve is for the protection of the precipitation of the soil within the river bank, to allow free flow of water during the highest watermark. 29. The 1st and 3rd respondents aver that riparian reserves are overriding interests owing to the provisions of section 28(c), (d), and (h) of the Land Registration Act, No. 3 of 2012 and hence do not form part of the property of the petitioner, making any action within the riparian area unlawful, illegal and unconstitutional. 30. The 1st and 3rd respondents aver that the exercise of the restoration of riparian reserves, therefore, is of utmost necessity and was in compliance with Chapter 3 (3.16 (ii) of Sessional Paper No. 7 of 2017 of the National Land Use Policy. 31. Th e 1st and 3rd respondents aver that to mitigate the problems of the urban environment, the Government intends to restore and reclaim riparian areas, wetlands, escarpments, Page 12 of 47

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forests, open spaces and the parks that may have been allocated, back to public ownership to ensure that they revert to the original state, as provided for under Sessional Paper No. 7 of 2017 on National Land Use Policy. 32. The 1st and 3rd respondents aver that Article 69(1) of the Constitution enjoins the State to meet several responsibilities about the environment, some of which are to ensure the sustainable exploitation, utilisation, management and conservation of the environment and natural resources and to eliminate activities that are likely to endanger the environment. Page 13 of 47

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33. The 1st and 3rd respondents aver that Sustainable Development is one of the national values and principles of governance under Article 10 of the Constitution. It binds all state organs, public officers, and all persons whenever they apply or interpret any law or make or implement public policy decisions. 34. The 1st and 3rd respondents deny that the petitioner is entitled to any of the reliefs sought in the petition in relation to L R 209/7994/4 and the building thereon. 35. The 1st and 3rd respondents aver that they were not a party to the NET appeal number 016 of 2018; hence, the said ruling and/or judgment is not binding on them. 36. The 1st and 3rd respondent herein prays that the suit land, being public land, be protected as such by dismissing the petition. 37.The petition is also opposed by the 2 nd respondent. In a replying affidavit sworn by Boniface Waweru, an acting Director of Litigation of the 2nd respondent, it is admitted that the subject property was earmarked for demolition following the 1st respondent's press release order of 2 nd May ELC PET E013 OF 2024 - JUDGMENT 14

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2024 as an effort to reclaim riparian reserves in Nairobi County. 38.The 2nd respondent states that, going by the decision in Milimani Splendour Management Ltd vs NEMA and others (2019) eKLR, a river includes the bed, the banks, the adjacent land as well as the flood plain and therefore the risk of the river flooding during heavy rains justifies the need for a buffer zone or verge. 39. The 2nd respondent deposes that under Rule 111 of the Survey Regulations of 1994, the 1st respondent could direct that a lower width of the reservation of not less than 30 metres in width above high water be made in special circumstances. 40. Further, the 2nd respondent states that under Rule 6 (c) of the EMCA Water Quality Regulations 2006, it prohibits any person from cultivating or undertaking any development activities within the full width of a river or stream to a minimum of six metres and a maximum of thirty metres on either side based on the highest recorded flood level. ELC PET E013 OF 2024 - JUDGMENT 15

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41. The 2nd respondent deposes that under Black's Law Dictionary, 10th edition, a watermark is defined as the highest or lowest point to which water rises or falls. 42. Additionally, the 2nd respondent deposes that under EMCA (Wetlands, river banks, lake shores and sea shore management regulation 2009, a high water mark is defined as the historically recorded point of the highest level of contact between the water and the bank, while the low water mark is defined as the historical record point of the lowest level between the water and the bank. 43. Going by the definition above and the ruling in Splendour Management Ltd (supra), the 2nd respondent deposes that the petitioner has failed to present any evidence indicating the high and low water marks and not the centre of the river as is required by law. 44. The 2nd respondent deposes that riparian reserves are an overriding interest under section 28 (c), (d) and (b) of the Land Registration Act. 45. The 2nd respondent deposes that the right to own property under Article 40 of the Constitution is not absolute and is ELC PET E013 OF 2024 - JUDGMENT 16

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among the non-derogable human rights under Article 24 of the Constitution and therefore can be limited so long as there are reasonable and/or justifiable reasons, as in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. 46. The 2nd respondent deposes that, going by Sessional Paper No. 17 of 2017, the national land use policy, seeking to give effect to section 21 of part 1 of the fourth schedule, the national government is mandated to formulate principles of land planning and coordination of planning by counties, which law may exempt constitutional property rights. 47. The 2nd respondent deposes that the restoration of riparian reserves is therefore of utmost necessity and, in this case, under Chapter 2 (3.16) (11) of the National Land Use Policy 2017, regarding mitigation of the problems of the urban environment, the government is justified to restore and reclaim riparian areas, wetlands, escarpments, forests, open spaces and parks, that may have been allocated back to ELC PET E013 OF 2024 - JUDGMENT 17

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public ownership to ensure that they revert to the original state. 48.The 2nd respondent deposes that under Article 69 (1) of the Constitution, the State is enjoined to meet several responsibilities in relation to the environment to ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources and to eliminate activities that are likely to endanger the environment. 49. The 2nd respondent deposes that sustainable development is a national value and principle of governance under Article 10 of the Constitution, binding the State, its organs, public officers and all persons whenever they apply or interpret the law or as they make or implement public policy decisions. 50. In this case, the 2nd respondent pleads that the above constitutional imperatives should not only guide the respondents but also the Nairobi Regional and county security teams and the multi-agency teams under the auspices of the Nairobi Disaster Operation Centre (NDOC) as ELC PET E013 OF 2024 - JUDGMENT 18

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they reclaim the riparian reserves in Nairobi since they are state agencies implementing the law. 51.The 2nd respondent deposes that it is empowered by section 29 of the Physical Planning Act to prohibit or control the use and development of plots within its area, and the national director of physical planning, being the lead, advises on matters of physical planning and urban development, is required to map and document disaster-prone areas, riparian areas, wetlands, open spaces, parks and river deltas. 52. The 2nd respondent states that it is aware that rivers and all land between high and low watermarks constitute public land under Article 62 of the Constitution, vested or held by the national government in trust for the people of Kenya and administered in that behalf by the National respondent states that the actions Land Commission. 53. The 2nd of the respondents in this context are not arbitrary, ultra vires or lacking grounding in the law but are based on their mandate to fulfil their constitutional obligation. The 2nd respondent states that, on the contrary, it is the petitioner who has ELC PET E013 OF 2024 - JUDGMENT 19

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declined to cooperate with the respondents to protect the environment by protecting the riparian reserve for its own good and the good of the general public, but instead continues to pollute the reserve through encroachment of the same, which interferes with the hydrological and ecological balance of the ecosystem. 54. The 2nd respondent states that the polluter pays principle demands not only the cost of cleaning up any element of the environment damaged by pollution, compensating victims of pollution, the cost of beneficial uses lost as a result of the act of pollution and other costs that are connected with or incidental to the foregoing, to be paid or borne by the person convicted of pollution under the applicable law in accordance with section 2 of the EMCA. 55. The 2nd respondent states that, by encroaching onto riparian reserves or zones, which is equivalent to pollution or destruction of riparian reserves or zones, which has a great impact on natural events such as flooding as experienced in most parts of the county during the rainy season, as has been evidenced in Nairobi County, claiming several lives, ELC PET E013 OF 2024 - JUDGMENT 20

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there is a need to regulate activities on pollution and the amount of water that moves into these systems and its impact. 56. The 2nd respondent states that, in some cases, the rivers and streams that once flowed in these riparian zones will also dry up, leading to water shortages in household living downstream and therefore the dangers of loss of life and public health cannot be emphasised more if at all riparian zones were to be utilised for settlement and other developments. 57. The 2nd respondent states that riparian areas are a priceless resource and impose responsibilities on all to protect and to restore their natural assets to help ensure a clean and healthy environment for future generations, for they are critical for the water quality, water quantity, habitat and flood reduction functions they provide to society. 58. The 2nd respondent states that the reclamation of riparian land by the government is meant to fulfil its constitutional obligation to protect the lives and health for the benefit of the public, which public interest overrides private interests. ELC PET E013 OF 2024 - JUDGMENT 21

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59. The 2nd respondent states that under Article 69 (2) of the Constitution, every person has a duty to cooperate with state organs and other persons to protect and conserve the environment and to ensure sustainable ecological developments. 60. The 2nd respondent states that construction of buildings or any other developments on a riparian reserve would have a deleterious effect on the flow of the river, with serious consequences for the ecology, and therefore this court should apply the prevention principle in preventing activities that may cause damage or harm to the environment for posterity. 61. The 2nd respondent states that the petitioner has failed to demonstrate violation of its constitutional rights and fundamental freedoms as set out in Anarita Karimi Njeru vs AG (1979) eKLR, and in Mumo Matemu vs Trusted Society of Human Rights Alliance & others (2013) eKLR or in Giella vs Cassman Brown (1973) E.A 358. 62. The court has carefully looked at the petition, its supporting affidavits and the responses and replying affidavits by the ELC PET E013 OF 2024 - JUDGMENT 22

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parties. The court has also had a glance at the submissions which were filed outside the timelines set. 63. A party seeking redress for alleged breach, threat or infringement of constitutional and fundamental rights and freedoms must address both procedural and substantive conditions governing constitutional petitions as provided under the Constitution of Kenya (Protection of Rights and Freedoms) and the Practice and Procedure Rules (2013), otherwise known as Mutunga Rules, Articles 22, 23, 258 and 260 of the Constitution. 64. A petition under Rule 10 of the Rules must disclose the names and the capacity of the petitioner, facts relied upon, constitutional provisions violated, the nature of injury caused or likely to be caused, details of pending or past litigation and the reliefs sought. 65. In Moi Teaching and referral hospital and others vs Gikenyi and others (2026) KESC 50 (KLR) 3 rd July 2026 (Judgment) the court said that petition brought without identifying the court said that petition brought without identifying the correct provisions may be fatal. ELC PET E013 OF 2024 - JUDGMENT The court 23

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said that courts must, as a rule of statutory interpretation, ensure it leads to a fair and just outcome, aligning the legislative interpretation with the Constitution and the purpose of the legislature. 66. The court said that it is a well-established legislative interpretative principle that statutes dealing with the same subject matter or which are in pari materia be construed together and harmoniously in order to avoid inconsistencies, as was held in Njuguna vs Republic (2025) KECA 850 (KLR). 67. In Wandi vs Mumira (suing as the administrator ad litem of June Muthoni Wachira, Petition E029 of 2024 KESC 29 (KLR), 31.5.2026 (Judgment) the court said that Article 20 (3) (a) of the Constitution obligates the court, in applying the Bill of Rights, to develop the law to the extent that it does give effect to the right or fundamental freedom. 68. The court cited with approval FAAF vs RFM & others (2025) KESC 45 (KLR) that laws must be interpreted and applied through lens of the Bill of Rights and where an existing laws yield outcomes inconsistent with a right or ELC PET E013 OF 2024 - JUDGMENT 24

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fundamental freedom the courts are under a duty to infuse those laws with the normative content of the Bill of Rights in line with the principles of harmonious interpretation under article 159 & 259 of the constitution as was held in Steu vs Ruscone (2013) KESC 11 (KLR) that interpretation must permit development the law and contribute to good governance. 69. In Benjamin vs AG & others, Petition – E042 of 2024 (2026) KESC 5 (KLR), 23rd January 2026 (Judgment), the court cited with approval Albert Chaurembo Mumba & others vs Maurice Munyao & others (that the doctrine of exhaustion is not a blanket bar to preclude litigants from pursuing constitutional petitions and that disputes disguised and pleaded with the erroneous intention of attracting the jurisdiction of superior courts to avoid alternative forums provided by the relevant parent statute would not be entertained. 70. The court said that the appropriateness of the forums, as held in Adeya and others vs Kibos Distillers Limited & others (2020) KESC 36 (KLR), is a relevant factor. ELC PET E013 OF 2024 - JUDGMENT 25

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71. The court further cited Nicholas Abidha vs Ag and others (2023) KESC 113 (KLR), holding that the nonexhaustion doctrine is to be applied on a case-by-case basis and in a nuanced manner to avoid impeding the stifling of the litigant’s access rights to courts for enforcement of fundamental rights of freedom. 72. The court said that the act of seeking constitutional relief is contingent upon the adequacy of an existing alternative means of redress and therefore courts should not be restrained from providing constitutional reliefs. 73. The court cited with approval United Bank of India vs Satyawati Tondor and others (2010) 8 SCC that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion. 74. In Abidha, a case (supra), the court said that where a relief under the alternative mechanism is not adequate or effective, then there is nothing that precludes the court from adopting a nuanced approach to what matters at the end of the day in choosing a path that safeguards a litigant’s right to access justice. ELC PET E013 OF 2024 - JUDGMENT 26

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75. In this petition, the petitioner avers that it owns the subject property, which it has occupied peacefully and uninterruptedly until an improvement notice and orders were issued by NEMA. It is averred that the said improvement notice or orders were set aside by the NET on the basis that the boundaries of the petitioner’s property did not encroach on the riparian reserves and were within the six metres from the centre line of the river as required by the Survey Act. 76. The petitioner avers that, following the NET decision, it acquired a legitimate expectation that the issue of the boundary wall and the subject property had fully been determined and were not subject to challenge by any other body. 77. The petitioner says a permanent injunction was therefore issued against NEMA, its agents, servants or employees from entering, breaking, demolishing, destroying, evicting, defacing, flattening, removing and/or in any way whatsoever interfering with the building wall compound and quiet enjoyment of the subject property and/or enforcing the improvement order. ELC PET E013 OF 2024 - JUDGMENT 27

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78. While utilising the quiet enjoyment of the subject property and the fruits of its judgment from NET, the petitioner avers that on 2nd May 2024 a 24-hour notice was issued by the 1 st respondent to vacate the subject land as allegedly falling within the 30-metre riparian corridor of rivers and other watercourses across Nairobi County, failure of which there will be mandatory evacuation for their safety and their premises whether for public or private use. 79. The petitioner avers that the 2 nd respondent, through various state agencies under the auspices of (NDOC), following the issuance of notice, then proceeded to demarcate its premises for demolition that was scheduled for 7th May 2024. 80. The petitioner avers and deposes that the actions of the respondents infringe on its right under Article 27 (1), (40) (3) and 47 (1 & 2) of the Constitution. 81. In their response to this petition, the respondents admit there was a press release on 2 nd May 2024 over the intended vacation from riparian land or reserves. The respondeta invoke public interest doctrine, public land doctrine, police ELC PET E013 OF 2024 - JUDGMENT 28

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powers, the doctrine polluter pay principles and overriding interests which the subject property is bound by as provided under Survey regulations 1994, EMCA (water Quality regulations 2006, EMCA (wetlands, River banks, lake shores and sea shore management regulations 2009, sessional paper No. 17 of 2017 on the national land use policy, section 21 of part 1 of the fourth schedule to the constitution and Article 62 & 69 (1) of the Constitution. 82. Section 29 of the Physical Land Use Planning Act and section 2 of EMCA, among other provisions regarding riparian zones and the right to a clean and healthy environment. 83. The contestation before this court is whether the respondents are justified in law in issuing a demolition notice over the petitioner’s land alleging that it falls under a riparian zone. Section 2 of the Land Act defines public land to include the coast, foreshore, river dams, lakes and other reserves. Riparian reserve is defined as the land adjacent to the ocean, lake, sea, rivers, dams and watercourses. ELC PET E013 OF 2024 - JUDGMENT 29

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84. Section 12 (3) of the Act prohibits NLC from allocating public land that is in land along watershed river and stream catchments, public water reservoirs, lakes, beaches, fish landing areas, riparian zones, and the territorial sea. 85. Section 42 of EMCA declares riparian zones as protected areas and prohibits any activity that may have an adverse effect on the environment within such areas without the express written approval of NEMA. NEMA is also mandated to conduct an E.I.A. under section 58 of EMCA for any project to be carried out in or near riparian land. 86. In Seve Lamu & others vs NEMA & others (2019) eKLR, the court emphasised the importance of compliance with E.I.A. requirements when assessing developments like the Lamu Coal plant and ruled in favour of public interest that indeed an E.I.A. ought to have been conducted. 87. The second schedule to the EMCA lists activities including those that are near water bodies as projects requiring E.I.A licenses. 88. Section 143 (1) of the Water Act 2016 provides for protection of ELC PET E013 OF 2024 - JUDGMENT water sources and riparian areas from 30

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encroachment and pollution. Section 144 of the Act empowers the Water Resources Authority (WRA) to declare buffer or protection zones along water bodies and prohibits or restricts certain land uses or developments therein. 89. Where a water body runs through private land, the private land adjoining the riparian land does not automatically become public land under Article 62 of the Constitution. 90. Regulation 2 of the Water Resources Management Regulations 2007 defines riparian land as land in respect of the management obligation imposed on the owner due to its proximity to a water body. In Njogu and 5 others vs Sino Hydro Corporation Ltd and another (2024) KEELC 6536 KLR, the court held that the regulations do not alter or transfer ownership of any portions of riparian land from the owner to either WRA or the public at large, but simply impose restrictions on its use. The court said that an owner is required under section 26 of the Act to seek and obtain a permit from WRA for water abstraction, diversion or interference with natural water bodies. ELC PET E013 OF 2024 - JUDGMENT 31

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91. The court said that the Water (Resources) Regulations 2025 strengthen the legal and institutional framework for conserving riparian and catchment areas, while recognising the crucial role in protecting water resources, preventing erosion, mitigating floods, and supporting both biodiversity and ecosystem services. 92. The court said that the regulations define riparian land as land by virtue of its proximity to a water body, whose management requires W.R.A to impose some restrictions on the landowners. 93. The regulations seek to clarify the boundary limits and to prevent degradation of these sites through a range of prohibited activities, namely tillage or cultivation, clearing of indigenous vegetation or trees, construction of permanent structures, disposal of any form of waste, excavation of soil or development of quarries, planting of exotic trees or species capable of adversely affecting the water resource and land reclamation. 94. Section 21 of the Survey Act requires that all surveys be conducted in accordance with the Regulations issued by the ELC PET E013 OF 2024 - JUDGMENT 32

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Director of Survey, including those on identification and preservation of riparian reserves. As such, riparian areas must be excluded from private land allocation during survey and appropriately documented as part of Kenya’s Environmental and land governance framework. 95. The National Land Commission Act mandates it to administer and manage public land on behalf of the citizens. It is also required to jointly work with other agencies to map and demarcate riparian zones. 96. On the other hand, county governments are tasked with managing riparian land at the local level by securing land for public utilities and recreational purposes. Where riparian land is forested, the Kenya Forest Service takes an active role in its management by issuing special user licenses, such as those issued to improve and rehabilitate mangrove areas or ecosystems. 97. The determination of what a riparian land zone or reserve is is governed by Part XII of the Survey Regulations, Regulation 110, as regard court foreshore reservation provides a minimum of a 60-metre strip above the high water mark to ELC PET E013 OF 2024 - JUDGMENT 33

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be reserved for government use unless varied by the C.S. land for development purposes. 98. Regulation No. 111 provides for a minimum of a 30-metre strip above the high water mark to be reserved for government purposes, subject to variation by the C.S. land for tidal river reservation. 99. Regulation 112 relates to lake reservation for land fronting lakes; a minimum of 30 metres has to be reserved from the high water edge, subject to variation by the C.S. 100. Regulation 113 provides that the surveyor may define all these reservations using straight lines or a series of straight lines close to the specified distance from the relevant watercourse. 101. For any development near water bodies, a landowner or developer has to (i) Conduct a survey to identify and demarcate the riparian reserve while ensuring that the land parcel boundaries exclude the riparian zone. ELC PET E013 OF 2024 - JUDGMENT 34

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(ii) Conduct an environmental impact assessment or, if not required, obtain a waiver from NEMA approval. (iii) Obtain permits from the Water Reserves Authority. 102. The legal consequences of encroaching on riparian land include demolition of unauthorised structures on riparian reserves, criminal actions under Section 144 of EMCA and civil claims for environmental degradation, economic loss and public nuisance due to unlawful development. 103. In this petition, the respondents plead that they were justified in reclaiming, restoring, and protecting riparian reserves to reduce flooding risk and protect water bodies in Nairobi; on the other hand, the petitioner pleads that demolition of his property is being undertaken without due process. 104. As cited above, the Constitution of Kenya requires a harmonious interpretation. There are scattered laws relating to riparian reserve zones and areas. 105. Equally, as indicated above, there are various legal mechanisms mandated to enforce laws governing riparian ELC PET E013 OF 2024 - JUDGMENT 35

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zones. It is now not in doubt that the manner in which efforts have been undertaken to restore, reclaim, protect and safeguard riparian land, reserves and zones have in recent past created uncertainty, disputes and economic losses. 106. on Courts have been faced with various cases or disputes the issue of riparian reserve being subject to development control as envisaged in Article 66 of the Constitution. 107. Multiple laws, as indicated above, have differing technical definitions and lack a harmonised standard on the identification, demarcation, management and development approvals relating to riparian land. 108. The petitioner in this matter, for instance, takes the view that the construction protects private property rights and any deprivation thereof must follow due process, including fair hearing and adequate notice; otherwise, its land was lawfully surveyed, acquired and registered as per the title deed and a deed plan. ELC PET E013 OF 2024 - JUDGMENT 36

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109. the The petitioner pleads that the NET ruling confirmed that improvement notice by NEMA was illegal, and development approvals were lawfully granted. On the other hand, and despite the ruling, the respondents urge this court to find the title deed and deed plan used to obtain ownership subject to the law. 110. The constitutional question which is raised in this petition is whether there can be subsequent redefinition or expansion of riparian reserve limits which can be applied retroactively to deprive the petitioner of its land parcel without due process in the name of mitigating flood under Article 40 (3) of the Constitution as read together with Section 28 of the Land Registration Act. 111. It is not the respondents' case that the petitioner’s land was illegally or fraudulently acquired or obtained. It is not the respondents' case that there had been a clear determination of riparian boundaries before the petitioner obtained a title deed and the deed plan. It is not the respondents' case that before the 2 nd May 2024 notice and perhaps after the NET ruling that there was a harmonisation ELC PET E013 OF 2024 - JUDGMENT 37

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of the measurements of the riparian boundary distances, reference points and standards under the Survey Act, EMCA, Water Act, Land Act, Land Registration Act and the Physical and Land Use Planning Act and its 2021 Rules. 112. There is no evidence that tmpoprhous entit called (NDOC) and the multi-agency teams have taken into consideration, on account, a clear definition for high and low water marks, seasonal rivers and buffer zones, the historical survey record and the physical condition on the ground by way of a scientific report. 113. The court has not been supplied with a clear mapping and definition of riparian reserve by the Director of Surveys, which is the authority on boundaries in Kenya, given the deed plan availed to this court by the petitioner, which is yet to be recalled, reviewed, set aside and/or invalidated. The respondents, other than invoking acts of God, public interest, eminent domain, and public safety, have not supplied the court with any scientific report which the entities alleged to have marked or mapped the petitioner’s land used to hold, ELC PET E013 OF 2024 - JUDGMENT 38

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find, and believe that its land falls within a riparian reserve of land. 114. The petitioner is alleging lack of adequate notice, protection of the right to fair administrative action and the right to ownership before the demolition exercise is undertaken. The respondents, other than responding to these key constitutional imperatives, have invoked mitigation of flood and the right to a clean and healthy environment, which are not backed by any scientific evidence showing that the petitioner's land, developments or activities are the sole cause of flooding and pollution. 115. The court is asked by the respondent to find and hold that sustainable environment management and protection of water bodies and public interest supersede the petitioner’s constitutional rights under Article 27 (1), 40 (3) and 47 (1) and (2) of the Constitution. 116. Section 3 of EMCA mandates and allows this court to issue orders to prevent, stop or discontinue any act or omission deleterious to the environment. In exercising that mandate, the court has to be guided by the six principles of ELC PET E013 OF 2024 - JUDGMENT 39

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sustainable development, including the precautionary principle that it is better to be safe than sorry when dealing with activities that endanger the environment. 117. The court has gone through the various laws which allow the respondent and the respective state agencies with the mandate to investigate, inquire, assess, recall, review, withdraw, enforce and/or issue stop orders or notices against any owner of developments interfering with riparian land, zones, reserve and/or sites. 118. The respondents' answer and response, other than making general allegations, have not supplied any material showing that the petitioner has been investigated and/or found liable for encroaching onto or interfering with the watercourse to the extent that the land or its developments pose danger to the public. 119. No single prohibition notice or order arising out of the statutory laws alluded to above has been issued to the petitioner pursuant to the regulatory frameworks on riparian land; for instance, under Section 108 and 111 of EMCA, only NEMA is empowered to issue an environmental restoration ELC PET E013 OF 2024 - JUDGMENT 40

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order, demolition and removal of unauthorised structures as well as institution of legal proceedings. 120. In Milimani Splendour Management Ltd vs NEMA & others (2019) KEELC 1225 (KLR), the court noted that EMCA regulations came in later than those under the Survey Act of 1994 and the Physical and Land Use Planning Act of 1998. The court held that for the prosecution of riparian zones, there is a need to have a base map and cadastral drawing. 121. The identification and designation of riparian reserves is a function to be undertaken by NEMA in conjunction with the Survey of Kenya, alongside water inspections under the Water Act pursuant to EMCA (Water Quality) Regulations 2006 and Rule 116 of Part IV of the Water Resources Management Rules 2006. 122. In JAJ Superpower Cash and Carry Ltd vs Cabinet Secretary, Ministry of Interior and National Administration and 4 others (2025) KEELC 5273 (KLR). There is no evidence that EMCA invoked Section 42 of its Act to limit the rights of the petitioner as required under Article ELC PET E013 OF 2024 - JUDGMENT 41

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24 of the Constitution under Sections 52 (2), (3) and 53 of the Physical and Land Use Planning Act; the county has powers to regulate development within its jurisdiction, including on riparian zones. 123. In Superior Homes (K) PLC vs Water Resources Authority and others (Civil Appeal) E330 of (2020) (2024) KECA (Judgment), an (KLR) (19th enforcement order 1102 August had been 2024) issued requiring the appellant to demolish and remove the eight units in its estate and to restore the riparian reserve to its original state within 21 days, on an alleged encroachment of riparian reserve issues of flooding had been raised as a justification. 124. On what riparian land is the court of appeal relied on the definition in rule 2 of the Water Resources Management Rules 2007 through not precise, that it is land where the water regulation authority had imposed obligations upon the owner due to its proximity to a water body. 125. The court said that Part IX of the rules provides for conservation of riparian land by imposing management ELC PET E013 OF 2024 - JUDGMENT 42

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controls on land use. The court held that the declaration of land as riparian does proprietorship, but management controls not merely on affect its character imposes on the proprietor and that land use or the determination of riparian land is governed by Rule 116 (2) thereof, with reference to a watercourse as 6 metres minimum on either side of the watercourse, or equal to the full width of the watercourse up to the maximum of 30 metres on either side of the river bank. 126. The court further said that Rule 116 (4) relates to how riparian land is measured and that a watercourse as per the Act is different from a river. 127. The court found that from 2007 up to 2013 neither NEMA nor the 1st respondent had alleged encroachment on riparian land. 128.The court made a finding that under Section 12 of the Water Act 2007, the Water Resources Authority was responsible, inter alia, for the formulation and enforcement of standard procedures and regulations for the management of water resources ELC PET E013 OF 2024 - JUDGMENT and flood mitigation as well as 43

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demarcation of riparian boundary under Section 117 (1) of the Water Act. 129.Flowing from the cited case law, it is quite evident that the notice dated 2nd May 2024 cannot pass the constitutional and statutory master as to whether the petitioner's land falls under riparian land in the 1st instance; secondly, whether the respondents can rely on an unscientific basis to allege that the subject property falls under riparian land where the relevant state agencies, in conjunction with the Survey of Kenya, have not, with clarity, certainty and precision, defined the land to be so. 130.In Entick vs Carrington (1765) EWHC KB J98, Lord, the court said that the right to secure property is preserved, sacred and incommunicable in all instances to be taken away or abridged by some public law for the good of the whole. 131.The court said that no man can set his foot upon it without justification that some positive law has empowered or excused him.The court said that the state may do nothing but that which is expressly authorised by law, while ELC PET E013 OF 2024 - JUDGMENT 44

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individuals may do anything but that which is forbidden by law. 132.In Kenya Railways Corporation vs Birah and others (2025) KECA 545 (KLR) (21st March 2025) (Judgment), the court said that failure to follow section 152 of the Land Act, which is the statutory procedure for eviction by giving sufficient police whether forceable or otherwise, offended the constitutional and statutory provision on fair administrative action. 133.I think I have said enough to show that the respondents have admitted in their pleadings non-compliance with both the Constitution and statutory imperatives before the 1 st respondent issued, without compliance with the law, a socalled eviction or demolition notice of 24 hours. 134.The C.S. had no such powers in the alluded raft of law and regulation on riparian land, zones and reserves. The 1 st respondent acted ultra vires. A nullity is a nullity as held in Macfoy vs United Africa Co. Ltd. ELC PET E013 OF 2024 - JUDGMENT 45

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135.It is only the National Land Commission under section 11 of the Land Act which can act on endangered land or protected land and take action. 136.Section 2 of the Land Act defines eviction as an act of depriving or removing a person from the possession of land. All evictions must be done in accordance with the law, including demolition of unauthorised structures. 137. There is no evidence that the 1 st respondent issued a prescribed notice under form LA 57 as read together with regulation 63, 64, 65, 67 and 70 of the Land Regulations 2017. 138.The court, in the circumstances, finds the petition proved to the required standard. 139. The court only allows prayer no. II. prayers have not been substantiated. The rest of the There will be no orders as to costs. Orders accordingly. DATED, SIGNED AND DELIVERED THIS 30TH SEPTEMBER 2026 ELC PET E013 OF 2024 - JUDGMENT 46

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…………………………… HON. JUSTICE C.K NZILI JUDGE C/A: JULIUS LEGALR RESEARCHER ; Ms Bevalyn ELC PET E013 OF 2024 - JUDGMENT 47

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