Haron Chepkilot Kipsang v Nairobi City County Government & 3 Others

NAIROBI CITY COUNTY GOVERNMENT .................... 1ST RESPONDENT DEPUTY COUNTY COMMISSIONER, STAREHE SUB COUNTY ……………………………….2ND RESPONDENT OCPD, MAKADARA SUB COUNTY……………………3RD RESPONDENT WATER RESOURCE AUTHORITY(WRA) …………….4TH RESPONDENT JUDGEMENT 1. By an Amended Petition dated 18th November 2025, the Petitioner seeks the following reliefs: a. A declaration that the Petitioner enjoys full right to exclusive possession and indefeasible rights over the land parcel L.R. No.209/14522 and the property annexed to it in exclusion of any party including the Respondents. b. A declaration that the Petitioner enjoys Constitutional rights regarding to the L.R No. 209/14522 including rights to fair trial, right to fair administrative action and the right to be given prior Notices before demolition occurs and the right to the protection to property under Article 40 of the Constitution of Kenya. c. A permanent injunction against actions of the Respondents, their employees, agents or ELCL PETITION NO. E050 OF 2024 2

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servants to desist from causing threats or demolishing the Petitioner's land parcel L.R. No. 209/14522 and/or in any manner issuing threats of demolishing, demolition from marking and/or and/or from from mapping out for demolition and/or from having any dealings at all with the Petitioner's quiet and exclusive occupation and possession of the L.R. No.209/14522. d. Such other orders that this Honourable Court may deem it expedient to meet the ends of justice. e. Costs of the Amended Petition and interest thereon at court rates. 2. The Petition is based on the grounds set out therein together with the supporting affidavit of Haron Chepkilot Kipsang sworn on even date. PETITIONER’S CASE 3. The Petitioner averred that he is the absolute registered proprietor of L.R. No. 209/14522, holding a 99 -year leasehold title from the Government of Kenya under a lease dated 24th April 2002, issued pursuant to a letter of allotment accepted on 1st June 1998. He stated that the title, originally issued under the repealed Registration of Titles Act (Cap. 281), is now protected under Sections 24, 25 and 26 of the Land Registration Act No. 3 of 2012 and Article 40 of the Constitution. ELCL PETITION NO. E050 OF 2024 3

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4. He further averred that he took exclusive possession upon acceptance of the allotment, erected a perimeter wall, and has since operated business stalls and garage services, which use is consistent with Clause 5 of the leasehold terms, which restricts the land to non-offensive light industrial purposes with ancillary offices and stores. 5. He denied that the suit property was riparian land or that it had been used in a manner causing environmental degradation. He further stated that NEMA had never summoned him or served him with any written notice regarding the suit property. He further averred that neither the Ministry of Lands nor the National Land Commission had issued any notice of recall or cancellation of the title for the suit property. He stated that he enjoyed peaceful possession until May 2024, when verbal threats of demolition were first made without prior written notice. 6. He maintained that he constructed the property in accordance with building plans approved by the former City Council of Nairobi, now Nairobi City County. He stated that on 25th November 2009, he paid Kshs. 18,920/- for the site board, building, and structural plans. 7. He stated that the suit property was marked with an "X", which he associated with a demolition notice. He argued that the 1st Respondent purported to justify the threatened demolition on the basis that the land is riparian, despite having approved the development. He contended that the 1st Respondent cannot draw an imaginary distinction ELCL PETITION NO. E050 OF 2024 4

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between the "X" marking and an accompanying "WRA" marking to disclaim responsibility. 8. He averred that the Nairobi City County, Planning and Housing Department, has the statutory responsibility for approving building plans and ensuring compliance with zoning, building codes and environmental considerations, including those relating to riparian land. He cited Section 20 of the Physical and Land Use Planning Act, 2019, which sets out the functions of the County Director of Physical and Land Use Planning. He further averred that the County, as part of the Nairobi Regeneration Programme, is liable for violations of his rights under Articles 40 and 47 of the Constitution and Section 4 of the Fair Administrative Action Act, 2015. 9. He further averred that the demolition marking was carried out under the Nairobi Regeneration Programme through the Multi-Sectoral Agency Consultative Committee (MSACC), of which the Water Resources Authority (WRA) is a member alongside NEMA, the Ministry of Lands and Nairobi City County. He averred that WRA has a statutory mandate over riparian reserves under the Water Act, 2016 and that its involvement is therefore integral. 10. He further averred that the Respondents have repeatedly threatened to demolish his property once other properties within Nairobi County were cleared, without notice, valid reason, summons to show cause, or referral to a land ELCL PETITION NO. E050 OF 2024 5

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dispute tribunal, and without recalling his title through any prescribed legal process. He described the entire process as unlawful, null and void, and in breach of the Fair Administrative Action Act. 11. He pleaded the following particulars of breach: continuous verbal threats of demolition; the "X" and "WRA" markings; absence of notice or a valid reason; an improper and illegal demolition process; imminent loss and damage; and violation of his right to property under Article 40 of the Constitution. 12. Accordingly, he contended that he sought legal protection and appropriate remedies for the alleged violations of his rights under Articles 40 and 47 of the Constitution. THE 1ST RESPONDENT’S CASE 13. The 1st Respondent filed a Replying Affidavit, sworn by Wilfred Masinde, Acting Deputy Director, Planning, Compliance and Enforcement - Urban Planning, on 2 nd July 2025, in opposition to the application. 14. The deponent denied that the 1st Respondent, its agents, employees, or servants issued any threats of imminent demolition, whether with or without notice. 15. He noted the Petitioner's allegation that the 1 st Respondent infringed his right to property by marking the suit property with an "X" indicating demolition, and cited that the suit property is riparian land. He pointed out that the Petitioner's ELCL PETITION NO. E050 OF 2024 photographs show the "X" mark 6

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accompanied by a separate "WRA" mark, which he argued indicates that the Water Resources Authority is responsible for the marking. 16. The deponent averred that the property's riparian designation remains unproven, that it neither changes ownership nor infringes constitutional rights, but instead imposes management controls on land use to protect water resources. He contended that WRA administers this function under the Water Act, 2016, and that it falls outside the 1st Respondent's mandate or knowledge. 17. He averred that the Petitioner was aware that the 1 st Respondent lacks the legislative mandate to justify or enforce riparian earmarking, as that authority rests exclusively with the WRA. He further contended that the Petitioner improperly seeks declaratory orders asserting exclusive proprietary rights without joining or serving the WRA, thereby risking circumvention of the WRA's lawful conditions and constituting an abuse of the Court’s process. 18. He further averred that the prayer for a declaration of absolute and indefeasible ownership is misconceived, as it disregards the special conditions in the certificate of grant and the regulatory mandates of the 1st Respondent, NEMA and WRA, which collectively limit the Petitioner's claimed rights in the public interest. 19. He averred that the Petitioner failed to establish a prima facie case against the 1st Respondent, as no evidence was ELCL PETITION NO. E050 OF 2024 7

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adduced to show that its officers, employees or agents had placed the "X" mark on the suit property. He described the suit as misconceived and a tactical attempt to implicate the 1st Respondent and other parties in unsubstantiated claims. 20. He contended that the Petitioner has not met the threshold for the grant of the orders sought. He further contended that the Petition is misguided and an abuse of due process, and that it should be dismissed with costs. THE 4TH RESPONDENT’S CASE 21. The 4th Respondent filed a Replying Affidavit, sworn by John Kinyanjui, Manager, Water Resources Assessment and Monitoring, on 2nd March 2026, in opposition to the application. 22. The deponent averred that the 4th Respondent is a state corporation established under Section 11 of the Water Act, 2016, and designated under Section 6 as the National Government's agent for regulating the management and use of water resources. He explained its functions under Section 12, including formulating and enforcing standards for water resource management and flood mitigation, regulating water use, issuing and enforcing water permits, and advising the Cabinet Secretary on water policy. 23. He averred that, following recent heavy rainfall, the 4 th Respondent commenced an exercise on 15 th May 2024 to identify flood-affected areas, georeference and mark highELCL PETITION NO. E050 OF 2024 8

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level flood marks and the 30-metre riparian reserve boundary, and to identify pollution sources. He further averred that public notice of this exercise was published in the Standard Newspaper on 29th May 2024. 24. He denied that the 4th Respondent visited the Petitioner's premises or issued any threats of demolition, whether oral or otherwise. 25. Without prejudice to that denial, he averred that if officials had visited the suit property to demarcate the riparian boundary and found encroachment, they would have issued a formal Order under Regulation 130 of the Water Resources Regulations, 2021, specifying the required remedial measures, the compliance period, and that enforcement action would be taken in the event of noncompliance. He averred that the Petitioner had not been issued with such an Order, rendering the proceedings premature as against the 4th Respondent. He asserted that, if encroachment were established, due process, including the issuance such an Order, would be followed. 26. He invoked Articles 66(1) and 69(1) of the Constitution, which set out the State's regulatory authority and its obligation to ensure the sustainable and equitable management of natural resources. He stated that the 4 th Respondent's regulatory function serves those obligations. 27. He further averred that on 2nd May 2024 the Government issued Public Security (Vacation or Mandatory Evacuation) Orders under ELCL PETITION NO. E050 OF 2024 the Public Security Act and related 9

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constitutional provisions, directing occupants of illegal structures on riparian land to vacate voluntarily or face forced eviction. The orders also required those within the 30-metre riparian corridor to comply for public safety. He also referred to a Government press release dated 27 th May 2024 on the Nairobi Rivers reclamation and regeneration exercise, which confirmed fatalities from flooding among occupants of structures illegally constructed within the riparian reserves. 28. The deponent asserts that the prayers and grounds of the Petition are speculative and ill-advised, and that they disclose no reasonable cause of action against the 4 th Respondent. In conclusion, he urged the Court to dismiss the Amended Petition with costs to the Respondents. 29. The Petition was canvassed by way of written submissions. THE PETITIONER’S SUBMISSIONS 30. The Petitioner filed his submissions dated 17th April 2026. 31. On behalf of the Petitioner, Counsel identified the following issues for the Court's determination: a) Whether the Petitioner is the lawful registered proprietor entitled to Article 40 protection: b) Whether the Respondents' threatened demolition without notice or due process violated Article 47 and the Fair Administrative Action Act, 2015; and ELCL PETITION NO. E050 OF 2024 10

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c) Whether the Petitioner is entitled to the relief sought. 32. Counsel submitted that the Petitioner's registered proprietorship of L.R. No. 209/14522 under a 99-year leasehold, following allotment, acceptance, payment and the issuance of title, was undisputed and followed due legal process. To support this point, Counsel relied on Dr Joseph N.K. Ngok v Justice Mijo Ole Keiwua & 4 Others, Civil Application No. NAI 60 of 1997. Counsel argued that the title is protected under Sections 24, 25 and 26 of the Land Registration Act and Article 40 of the Constitution. Counsel relied on Rutongot Farm Ltd v Kenya Forest Service & 3 Others [2018] eKLR to submit on the safeguard against arbitrary deprivation of property. Counsel further relied on Dina Management Limited v County Government of Mombasa [2023] eKLR to submit that a title is indefeasible in the absence of any evidence impeaching its root. Counsel submitted that the title can only be impeached for fraud attributable to the Petitioner or through lawful compulsory acquisition, neither of which is shown here. 33. Counsel submitted that the suit land is not riparian land. To support this point, Counsel relied on the Environmental Management and Co-ordination (Wetlands, Riverbanks, Lakeshores and Seashores) Management Regulations, 2009, which defines riparian land as a 6 to 30-metre reserve measured from the highest watermark. Counsel ELCL PETITION NO. E050 OF 2024 11

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also relied on the definition of riparian land under Regulation 2 of the Water Resources Management Regulations, 2007, which defines it as land subject to use restrictions, rather than a transfer of ownership. 34. Counsel argued that the 1st Respondent's refusal to designate the land as riparian, together with the absence of any inspection report or notice from the 4 th Respondent, demonstrated collusion among the Respondents rather than absolving them of liability, as the "X" and "WRA" markings were attributed to persons acting under the Respondents' instructions. Counsel invoked Anarita Karimi Njeru v Republic 1979 eKLR to submit that the amended petition met the threshold of precision. Counsel described the Respondents' shifting positions on mandate as both approbating and reprobating, and submitted that no party may do both. 35. Counsel submitted that the 1st Respondent's argument that the Petitioner's failure to obtain an EIA licence was misplaced, since the Petitioner's activities fell within the permitted inoffensive light industrial use under clause 5 of the lease and did not fall within EMCA's Second Schedule. To support this point, Counsel cited Kwanza Estates Limited v Kenya Wildlife Services [2013] eKLR. Counsel further submitted that any EIA-compliance grievance lay with NEMA, not the Court. Counsel relied on Speaker of the National Assembly v Karume [1992] ELCL PETITION NO. E050 OF 2024 12

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eKLR to emphasize the requirement to follow due process. 36. Counsel submitted that the Respondents violated the Petitioner’s right under Article 47 and the Fair Administrative Action Act, which requires written reasons and an opportunity to be heard administrative action is taken. Counsel relied on Dry before adverse To support this point Associates Ltd v Capital Markets Authority & Another Petition No. 328 of 2011, Speaker, County Assembly of Kisumu v Clerk, Kisumu County Assembly Service Board [2015] eKLR, Geothermal Development Company Ltd v Attorney General & 3 Others [2013]eKLR, Kuria Greens Limited v Registrar of Titles & Another [2011]eKLR, Onyango Oloo v Attorney General, Human Rights Commission v NGO Co-ordination Board and another [2018] eKLR; Attorney General v Kituo cha Sheria & 7 Others [2017] eKLR and Shree Visa Oshwal Community Nairobi Registered Trustees v Nairobi City County & 2 Others [2023] eKLR. 37. Counsel submitted that Sections 29, 30 and 38 of the repealed Physical Planning Act empowered County Governments to control land use and to take lawful and fair enforcement action. Counsel further submitted that the 1st Respondent's pleadings placed it at the centre of the dispute. Counsel also cited Republic v Public ELCL PETITION NO. E050 OF 2024 13

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Procurement Oversight Authority Ex Parte Getrio Insurance Brokers and Padfield v Minister of Agriculture, Fisheries and Food [2011] eKLR to support the proposition that administrative discretion, though not judicial, remains subject to judicial correction when exercised unreasonably or unfairly. 38. Counsel submitted that the Respondents' actions were unlawful and violated the Petitioner’s rights under Articles 40 and 47 of the Constitution. Counsel contended that the marking of the suit property, coupled with threats of demolition, was carried out without procedural fairness, as no written notice, inspection report or formal engagement was issued. Counsel further submitted that the Petitioner had established ownership, the absence of lawful justification for demolition, and the risk of irreparable harm. In conclusion, Counsel urged the Court to allow the Petition as prayed. THE 1ST RESPONDENT’S SUBMISSIONS 39. The 1st Respondent filed its submissions dated 29 th April 2026. 40. On behalf of the 1st Respondent, Counsel identified the following issues for the Court’s determination: a) Whether the Petitioner's constitutional rights were violated by the 1st Respondent; and b) Whether the Petitioner is entitled to the orders sought. ELCL PETITION NO. E050 OF 2024 14

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41. Regarding the first issue, Counsel submitted that a party alleging a constitutional violation must plead, with reasonable precision, the specific Articles infringed and the manner of infringement. Counsel submitted that the Petitioner invoked Articles 22, 23, 40, 47 and 50 of the Constitution, with the real gravamen being the alleged "X"/"WRA" markings and the threatened demolition without notice. Counsel reiterated the 1st Respondent's denial of placing any markings and its position that riparian designation Respondent's falls mandate. within the 4 th submitted that no exclusively Counsel evidence was adduced linking the 1 st Respondent's officers to the markings. Counsel argued that the Petitioner's reliance on Sections 29 and 30 of the repealed Physical Planning Act to impute liability to the 1 st Respondent for general county enforcement powers misrepresented the 1st Respondent’s actual role. 42. Counsel submitted that riparian land is statutorily defined as lying between 6 and 30 metres from the highest watermark. Counsel further submitted that NEMA, in conjunction with WRA, ordinarily maps the extent of riparian land. Counsel further contended that no evidence was adduced to show the property's distance from any water body. Counsel disputed the Petitioner's description of riparian land as private, contending that the land between the high and low water marks is public land on which development is prohibited. Counsel further noted ELCL PETITION NO. E050 OF 2024 15

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that the 1st Respondent's demolition notices are marked "NCC" in red and do not match the markings relied upon by the Petitioner. 43. Counsel relied on Miller v Sonko & Another [2022] eKLR and Tharuiya v Kailemia & 7 Others [2023] eKLR to support the principle that a constitutional breach must be proved by tangible and cogent evidence. Counsel also relied on Otieno v Airtel Kenya Limited [2018] eKLR and Sections 107(1) and (2) of the Evidence Act to submit that the legal burden lies on the party asserting the fact. Counsel argued that constitutional violations cannot rest on a factual vacuum or unsupported hypotheses. Counsel submitted that the Petitioner's case rested entirely on the markings, with no evidence linking the 1st Respondent's officers to them or establishing an intention to demolish. 44. Counsel submitted that the reliefs sought are contingent upon proof of infringement by the 1st Respondent, which the Petitioner failed to establish. In conclusion, Counsel urged the Court to dismiss the Petition with costs. THE 4TH RESPONDENT'S SUBMISSIONS 45. The 4th Respondent filed its submissions dated 20 th May 2026. 46. On behalf of the 4th Defendant, Counsel identified the following issues for the Court’s determination: ELCL PETITION NO. E050 OF 2024 16

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a) Whether reasonable the cause Amended of Petition action discloses against the a 4 th Respondent; b) Whether the Petition improperly invokes constitutional jurisdiction against the 4 th Respondent; and c) Whether the 4th Respondent acted within its statutory mandate under the Water Act, 2016. 47. Regarding the first issue, Counsel submitted that the Petitioner failed to demonstrate any act, omission or decision by the 4th Respondent that gave rise to the alleged violations. Counsel further submitted that the "WRA" marking alone does not give rise to civil or administrative liability, as riparian boundary identification is a data-gathering exercise for environmental conservation and public safety, not an enforcement, eviction, or demolition action. Relying on DT Dobie & Company (Kenya) Limited v Muchina & Another [1980] eKLR, Counsel submitted that the claim against the 4th Respondent is speculative and should be struck out with costs. 48. Regarding the second issue, Counsel relied on Anarita Karimi Njeru v Attorney General [1979] KLR 114 and Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR to emphasize that a Petitioner must specify, with reasonable precision, the constitutional provisions infringed, the particular acts ELCL PETITION NO. E050 OF 2024 17

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or omissions relied on, and the clear nexus between the facts and the alleged violation. Counsel submitted that the Petitioner's claims were broad, generalized, and speculative as no demolition order was issued or produced; and that no evidence was adduced to show that the 4th Respondent visited the premises or issued demolition threats. 49. Counsel explained the statutory compliance procedure under Regulation 130 of the Water Resources Regulations, 2021, which requires an Order in the prescribed form specifying remedial measures and a compliance timeframe before any enforcement measures can be taken. Counsel submitted that no such Order was issued, and therefore, no cause of action arose. Counsel further argued that due process would be followed if encroachment were later established. 50. Counsel submitted that the mapping and georeferencing exercise carried out in May 2024 was lawful and in accordance with Section 12(a) of the Water Act, 2016. Counsel further submitted that it is grounded in Articles 69(1) and 66(1) of the Constitution, which address sustainable resource management and the State's regulatory power in the public interest. Counsel further argued that a preliminary survey or marking exercise does not violate property rights. Counsel cited Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others 2014 (KLR), ELCL PETITION NO. E050 OF 2024 18

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where the Court held that regulators may exercise lawful, proportionate, and statutory mandates without undue procedural restrictions. 51. Counsel relied on Kamal Mechanical Engineering Works Limited v NEMA & Others, ELC Petition No. E047 of 2024, which clarified that protection under Article 40 does not extend to unlawfully developed structures on public or riparian land. Counsel further submitted that the Petitioner bears the burden of proving demolition and of attributing it to the Respondents. Counsel further submitted that a permanent injunction requires proof of an existing or threatened violation, not merely markings. Counsel relied on Sultan Palace Development Limited v WRA, ELC Petition No. E017 of 2021, where it was held that WRA's measures were within its constitutional and statutory mandate; Further reliance was placed on Jagit Singh v Cabinet Secretary Ministry of Interior & Others, ELC Petition No. E023 of 2024, where it was held that WRA's markings, made on its own statutory motion following public notice, did not amount to a violation of Article 47 or the Fair Administrative Action Act in the absence of actual evidence. 52. Counsel submitted that the Amended Petition dated 18 th November 2025 discloses no reasonable cause of action against the 4th Respondent and should be dismissed with costs to the Respondents. ELCL PETITION NO. E050 OF 2024 19

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ANALYSIS AND DETERMINATION 53. Having considered the Petition, the responses and rival submissions, the following issues arise for determination: a. Whether the Petitioner has established a registered proprietary interest in the suit property; b. Whether the Respondents have violated the Petitioner’s rights under Articles 40 and 47 of the Constitution; and c. Whether the Petitioner is entitled to the orders sought. WHETHER THE PETITIONER HAS ESTABLISHED PROPRITARY INTEREST IN THE SUIT PROPERTY 54. The Petitioner contends that he is the registered owner of the suit property. The record shows that the Petitioner holds a leasehold title, dated 24th April 2002, for a term of 99 years, following allotment and acceptance. It is trite that registration confers upon a registered proprietor rights subject to the Constitution and the law. Section 24(a) of the Land Registration Act provides for the interest conferred by registration. It provides as follows: Subject to this Act; The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto. ELCL PETITION NO. E050 OF 2024 20

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55. Section 25 of the Land Registration Act provides for the rights of a proprietor. It provides as follows: (I) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of the court, shall not be liable to be defeated except as provided by this Act and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject; 56. Section 26(1) of the Land Registration Act provides as follows: “The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer shall be taken by all the courts as prima facie evidence that the person named as the proprietor of the land is absolute and indefeasible owner and the title of that proprietor shall not be subject to challenge except; a) On the ground of fraud or misrepresentation to which the person is proved to be a party or; b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” ELCL PETITION NO. E050 OF 2024 21

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These provisions vest in the registered owner of land with rights and privileges and provide for instances when the right can be taken away. 57. In the present case, there is no evidence before the Court that the Petitioner’s title has been revoked, cancelled or impeached by lawful process. Similarly, there is no evidence of compulsory acquisition of the suit property. In light of the foregoing, I find that the Petitioner has established that he is the registered proprietor of the suit property. WHETHER THE RESPONDENTS VIOLATED THE PETITIONER’S RIGHTS UNDER ARTICLES 40 AND 47 OF THE CONSTITUTION 58. It is trite that the standard of proof in constitutional petitions is higher than the ordinary civil balance of probabilities. In Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others [2020] eKLR, the Supreme Court held that: “It is already the standpoint of this Court, as regards standard of proof, that this assumes a higher level in respect of constitutional safeguards than in the case of the ordinary civil-claim balance of probability. The explanation is that virtually all constitutional rights-safeguards qualifications, bear which call generalities, for or scrupulous individual appraisal for each case.” ELCL PETITION NO. E050 OF 2024 22

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59. It is a settled principle of litigation that a claimant bears the burden of proving the facts he asserts. This is pursuant to Section 107 of the Evidence Act: (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 60. The Petitioner contends that the Respondents actions of marking his property for demolition violated his right to property. 61. The right to own and acquire property is protected by Article 40 of the Constitution, which states as follows: (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire property. (a) of any description; and (b) in any part of Kenya. (2) Parliament shall not enact a law that permits the state or any person(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or ELCL PETITION NO. E050 OF 2024 23

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b) to limit or in any way restrict the enjoyment of any right under this article on the basis of any grounds specified or contemplated in Article 27(4). (3) The state shall not deprive a person of property of any description, or an interest in, or right over, property of any description, unless the deprivation(a) results from an acquisition of land or an interest in land or conversion of an interest in land, or title to land, in accordance with Chapter Five; or (b) is for public purpose or in public interest and is carried out in accordance with the Constitution and any Act of Parliament that(i) requires prompt payment in full, or just compensation to the person; and (ii) allows any person who has an interest in, or right over that property, access to a court of law. 62. The purpose of Article 40 is to protect the right to acquire and own property and to prevent the state from depriving any person of their property without due process and prompt payment of compensation. Although Article 40 ELCL PETITION NO. E050 OF 2024 24

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protects the right to property, this protection does not extend to property unlawfully acquired or developed on public land. 63. The Petitioner bears the burden of proving that the Respondent intended to demolish his property. 64. The gravamen of the Petition is the marking of "X" and "WRA" on the property, and the verbal threats of demolition the Petitioner alleges followed. The Petitioner asserts that he received verbal threats of demolition and that markings of “X” and “WRA” were made on his property for allegedly constructing on riparian land. He annexed photographs of these markings. 65. The 1st Respondent denied placing the markings or threatening demolition, while the 4 th Respondent denied issuing any threat of demolition. The 1 st Respondent deposed, without rebuttal, that its demolition notices are marked "NCC" in red, a marking distinct from that relied upon by the Petitioner. 66. On its part, the 4th Respondent concedes that on 2nd May 2024 the Ministry of Interior and National Administration issued a mandatory evacuation order for persons residing in the immediate neighbourhood of dams and water reservoirs, and for those residing within 30 metres of the riparian corridor of rivers. Subsequently, on 29 th May 2024, the 4th Respondent published a public notice of its intention to identify, mark and beacon the highest flood marks on rivers, dams and wetlands. The 4th Respondent ELCL PETITION NO. E050 OF 2024 25

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denies visiting the suit premises, issuing a demolition notice thereat, or issuing any notices to the Petitioner. 67. No evidence was placed before this Court identifying who made the markings, on whose instructions, or when. Similarly, no demolition order, enforcement notice, eviction order, or other formal decision authorizing the demolition of the Petitioner’s property was produced. The 4th Respondent expressly confirmed that no order under Regulation 130 of the WRA Regulations 2021 was issued against the Petitioner. 68. While the 1st Respondent bears the general statutory functions in urban planning in Nairobi, this obligation, without more, does not establish that it acted against the Petitioner. A finding of constitutional violation cannot rest on inference from statutory capacity alone. This court is not satisfied, on the material before it, that the Petitioner has discharged the burden of linking the 1 st Respondent to the markings or to any threat of demolition. 69. The evidence on record establishes that the 4 th Respondent undertook a mapping and georeferencing exercise concerning flood-affected areas and riparian reserves, and that this exercise was preceded by a public notice published in the Standard Newspaper on 29 th May 2024. It does not establish that the exercise culminated in the demolition, acquisition, cancellation or extinguishment of the Petitioner’s proprietary rights. ELCL PETITION NO. E050 OF 2024 26

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70. No document or evidence shows that any part of the Petitioner’s property encroached on a riparian reserve. It is therefore not established that the eviction notice dated 2nd May 2024 applied to the Petitioner. Further, the Petitioner has not proved that the Respondents denied them access to their property, destroyed their developments, or interrupted their businesses. 71. It follows that the alleged infringements of Article 40, Article 47, and the Fair Administrative Action Act have not been established to the requisite standard. The markings, without more, do not constitute proof of an existing violation, and no threatened violation has been shown to be real, as neither Respondent has issued an Order, notice, or other communication indicating enforcement intent directed at the Petitioner. 72. The Petitioner contends that the Respondents' actions in marking his property without any reason violated his right under Article 47 of the Constitution. 73. Article 47 (1) and (2) of the Constitution provide: (1) Every administrative person action has the that is right to expeditious, efficient, lawful, reasonable, and procedurally fair. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person ELCL PETITION NO. E050 OF 2024 27

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has the right to be given written reasons for the action. 74. Section 4 of the Fair Administrative Action Act, 2015 imports the rules of natural justice and provides as follows: 1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 2)Every person has the right to be given written reasons for any administrative action that is taken against him. 3) Where an administrative action is likely to adversely affect the rights or fundamental freedoms of any person, the administrator shall give the affected person the decisiona. prior and adequate notice of the nature and reasons for the proposed administrative action. b. an opportunity to be heard and to make representations in that regard. c. notice of a right to review or internal appeal against an administrative decision where applicable. d. a statement of reasons pursuant to section 6. e. notice of the right to legal representation where applicable ELCL PETITION NO. E050 OF 2024 28

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f. f. notice of the right to cross-examine. g. information, materials and evidence to be relied upon in making the decision or taking the administrative action. A The administrator shall accord the person against whom administrative action is taken an opportunity tob attend proceedings in person or in the company of an expert of his choice; c be heard; d cross examine persons who give adverse evidence against him; and e request for an adjournment of the proceedings where necessary to ensure a fair hearing. 75. It is clear from the above provisions that the tribunal or authority entrusted with the mandate of making decisions must act in a fair manner. Procedural fairness is a Constitutional requirement in administrative actions. 76. The right to fair administrative action cannot be gainsaid. In Judicial Service Commission -v- Mbalu Mutava & another (2015) eKLR, the Court of Appeal held that: “Article 47(1) marks an important and transformative development of administrative justice for it not only lays a constitutional foundation for control of the powers ELCL PETITION NO. E050 OF 2024 of state organs and other 29

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administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public officers. State organs and other administrative bodies are now subjected to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under common law developed.” 77. Similarly, in Evans Odhiambo Kidero & 4 Others v Ferdinand Ndungu Waititu & 4 Others [2014] eKLR.the Court held that; 257.Fair hearing, in principle incorporates the rules of natural justice, which includes the concept of audi alteram partem (hear the other side or no one is to be condemned unheard) and nemo judex in causa sua (no man shall judge his own case) otherwise referred to as the rule against bias. Peter Kaluma, Judicial Review: Law, Procedure and Practice 2nd Edition (Nairobi: 2009) at page 195, notes that the rules of natural justice generally refer to ELCL PETITION NO. E050 OF 2024 30

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procedural fairness in decision making. Further, he analyses the two mentioned concepts of the rules of natural justice and states [at pages 176 and 177] that it is the duty of the courts, when dealing with individual cases, to determine whether indeed the rules of natural justice have been violated and noting that “although the necessity of hearing is well established, its scope and contests remain unsettled.” 78. The Petitioner has established the presence of markings on the suit property, which he contends signified that his property had been earmarked for demolition. He further contends that he was verbally informed that demolition would follow after other properties had been cleared. The Respondents deny having made any decision to demolish his property. 79. The Court must determine whether the markings proved the Respondents' decision to demolish the Petitioner’s property. The 1st Respondent denied placing the X markings on the suit property and threatening the Petitioner with demolition. Similarly, the 4 th Respondent denied visiting the Petitioner’s premises or threatening demolition. 80. No demolition order or enforcement notice directed at the Petitioner has been produced. No eviction order has been produced. No order under Regulation 130 of the Water Resources Regulations 2021 has been shown to have been ELCL PETITION NO. E050 OF 2024 31

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issued against the Petitioner. Had the Respondents proceeded from the mapping exercise to issue an enforcement or demolition decision against the Petitioner, different considerations would arise. The 4 th Respondent specifically stated that, if encroachment were established, the prescribed process would require an order specifying the remedial measures and the period within which compliance was to be effected. 81. There is also no evidence of any administrative action by the 1st or 4th Respondents that would affect the Petitioner’s rights and interests within the meaning of Section 4 of the Fair Administrative Action Act, 2015. A preliminary survey and marking exercise, conducted pursuant to public notice and for the stated purpose of identifying flood risk and riparian extent, is investigatory rather than determinative of rights and does not, of itself, trigger the notice and hearing obligations the Petitioner invokes. 82. In Jagit Singh v Cabinet Secretary, Ministry of Interior & Others, ELC Petition No. E023 of 2024, it was held that WRA marking, undertaken on its own statutory motion following public notice, does not, by itself, constitute a violation of Article 47 or the Fair Administrative Action Act. 83. Based on the evidence on record, I find that the Petitioner has not proved to the requisite standard that the Respondents made a final decision to demolish his property, or that they took an adverse administrative ELCL PETITION NO. E050 OF 2024 32

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decision against him that would require the Court to declare it unlawful. WHETHER THE PETITIONER IS ENTITLED TO THE ORDERS SOUGHT 84. The Petitioner sought a permanent injunction restraining the Respondents from issuing threats of demolition or from demolishing the suit property. Given that the Petitioner has not established a prima facie case of an existing or imminently threatened unlawful act by either Respondent, the prayer for a permanent injunction cannot be sustained. 85. The prayer for a declaration of exclusive possession and indefeasible rights, excluding all parties, including the Respondents, is, in any event, broadly framed. Such a declaration would foreclose the 4 th Respondent's lawful mandate to regulate riparian land should encroachment later be established. 86. The upshot of the foregoing is that this Court finds and holds that the Petitioner is the registered proprietor of L.R. No. 209/14522, as his title has not been impeached. The other orders sought in the Petition are without merit and are hereby declined. Each party shall bear its own costs. JUDGMENT SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 2ND DAY OF OCTOBER, 2026. ……………………………………. ELCL PETITION NO. E050 OF 2024 33

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HON. T. MURIGI JUDGE IN THE PRESENCE OF: Kibet holding brief for Arusei for the Petitioner Muthoni holding brief for Maina for the 1 st Respondent Kirina for the 2nd and 3rd Respondents Ms Makori for the 4th Respondent ELCL PETITION NO. E050 OF 2024 34

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