Baljit Sokhi & another v Charity Ngilu, Cabinet Secretary, Ministry of Lands, Housing and Urban Development & another [2021] KEELC 3004 (KLR)

The court found ownership undisputed but noted the right to use property is not absolute. Reports by NEMA and the Water Resources Authority confirmed a 17-metre reserve was observed, meaning construction stood 6 metres from the flood plain. On that basis the 1st Respondent could reasonably have discerned an apparent encroachment on the riparian reserve, and her directive to halt construction was not a deprivation of property.

The Petitioners argued the 1st Respondent issued a verbal stoppage without hearing or expert input, in breach of Article 47. The court held that expert advice would likely not have been forthcoming given the Ministry's failure to provide instructions even to the Attorney General. On the circumstances, the court was not persuaded the right to fair administrative action was contravened.

The 2nd Respondent argued she acted outside her mandate and was personally liable. The court rejected this: regulatory bodies may omit or exceed their mandates, and every person, including the Cabinet Secretary, must cooperate to protect the environment. Stopping construction that appeared to encroach on a riparian reserve was a step to protect Mathare River, and courts should not punish those who speak for the environment.

The 1st Respondent contended the land was a riparian reserve held in trust by the Commissioner of Lands and thus public land whose allocation was null and void. The court noted there was no dispute as to the Petitioners' ownership and the title had not been challenged in any proceedings, and no evidence was tendered showing unlawful allocation of the Suit Property.