Wamaua & 2 others v Attorney General & 4 others (Petition E002 of 2022) [2025] KEELC 925 (KLR)
The bottom line
#A Kenyan court cancelled two private titles covering Nagami Dam, confirming that riparian land is public land that can never be privately owned.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit land constitutes riparian land
Yes. The Survey Report dated 22nd August 2023 found that parcels Mitubiri/Wempa/Block 1/13337 and 13338 lie within the dam's water mass and spill way, making the disputed area riparian land and therefore public land.
The Court relied on the court-ordered Survey Report by Lazarus M. Ndivo, which found the planned subdivisions did not respect the existing dam boundaries; the spill way passes through the two titles and cannot belong to a different owner than the dam. The earlier 2021 District Survey report also suggested clarification of a riparian reserve. The Interested Party failed to prove the survey was a desk exercise, since he who alleges must prove under Section 107 of the Evidence Act.
Whether riparian land is subject to private ownership
No. A riparian reserve cannot be allocated to a private owner; the titles over the two parcels offend Sections 2 and 12(2) of the Land Act and are liable to rectification by cancellation.
Section 12(2) of the Land Act prohibits allocation of public land along watersheds, public water reservoirs and riparian land. Although the Water Regulations 2021 contemplate riparian status imposing management obligations on private owners, the doctrine of hierarchy of laws under the Judicature Act requires priority to the primary legislation, the Land Act. Titles subsuming the dam area were therefore obtained by mistake and fall within Section 80 of the Land Registration Act for rectification.
Whether the Petitioners are entitled to the orders sought
No. The Petitioners established no traditional farming rights or overriding interests; their socio-economic rights claim fails because farming on riparian land poses environmental risks, and no EIA could be imposed retrospectively on a 1985 dam.
The Petitioners admitted they own no land adjoining the dam. Citing Veronica Njeri Waweru and Mitu-Bell (CA and SC), the Court held socio-economic rights cannot confer rights in alieno solo and courts cannot re-engineer property rights. Horticultural farming risks chemicals washing into the dam; riparian land is public land where such activity is strictly controlled or outlawed. The dam predates EMCA, so no EIA was required. The Court nevertheless granted the 'any other relief' prayer by cancelling and rectifying the two offending titles.
Legal principles established
#- Riparian land, including a dam's water mass and spill way, constitutes public land under Article 62 of the Constitution and cannot be allocated to private owners; by virtue of Sections 2 and 12(2) of the Land Act a riparian reserve cannot be allocated to a private owner.
- Under the hierarchy of laws, primary legislation (the Land Act) prevails over subsidiary legislation (the Water Regulations 2021).
- Enforcement of socio-economic rights cannot confer property rights in the land of another; courts may not create novel categories of land rights such as 'traditional farming rights'.
- A court may order rectification of the register under Section 80 of the Land Registration Act where a registration was obtained by fraud or mistake.
Court orders
#- 1.The two titles held by the Interested Party being Mitubiri/Wempa/Block 1/13337 and 13338 be cancelled and rectified
- 2.The District Surveyor to mark the boundaries of Nagami Dam and the two parcels of land referred above and new titles be issued conforming to the County Surveyor's findings of 23rd August 2023
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Articles 22, 23, 70 and 165 of the Constitution of Kenya 2010 (enforcement of Bill of Rights and environmental jurisdiction of the High Court/ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wamaua & 2 others v Attorney General & 4 others (Petition E002 of 2022) [2025] KEELC 925 (KLR)", Case Analysis (2025). Petition No E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/925/eng@2025-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.