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ELCDismissedPetition dated 14 February 2023 (as amended on 21 July 2023)· [2025] KEELC 3505 (KLR)

Sanders v Shella Beach Management Unit & 3 others (Environment & Land Petition E005 of 2023) [2025] KEELC 3505 (KLR)

Environment and Land Court
30 April 2025
3,066 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a Lamu beachfront petition because the owner offered no evidence to prove her constitutional claims.

What this practically means

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Executive summary

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The Petitioner, registered owner of beachfront plot Lamu/Block IV/8 at Shella, Lamu, petitioned against the Shella Beach Management Unit, the State Department of Fisheries, NEMA and the Attorney General, alleging violations of Articles 35, 40, 42 (with 69), 47 and 67(2) of the Constitution after the 1st Respondent replaced wooden pillars on pre-existing bandas with concrete pillars on 9 February 2023 on the beachfront in front of her gate. She sought declaratory orders, injunctions and an order of mandamus. The 1st Respondent asserted the site is a traditional fish landing site with communal interest predating the Petitioner's 2005 purchase, operated under the Fisheries (Beach Management Unit) Regulations, 2007, and that the works were mere renovations aligned with mangrove-restoration initiatives. NEMA's joint inspection report of 27 February 2023 found no dumping, littering or ecological violations, and questioned its joinder. The Attorney General argued no specific allegations were made against it. The court applied the Anarita Karimi Njeru rule on reasonable precision in constitutional pleadings, found the Article 47 and legitimate-expectation claims insufficiently pleaded, held that the Petitioner discharged no evidentiary burden on the alleged dumping and pollution, and held that neither the Constitution nor EMCA requires an environmental impact assessment for such renovations. The court found no disposition of public land contrary to Article 67(2). The Petition was dismissed with costs, the court declining to apply the public-interest exception to costs.

Key legal issues

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01

Whether the right to a clean and healthy environment (Article 42) was violated

Holding

Not violated; no evidence of dumping, littering or pollution, and the joint NEMA inspection report raised no ecological violations

Reasoning

The Petitioner alleged dumping of degradable and non-degradable waste by the 1st Respondent but produced no evidence. A joint inspection by NEMA and state agencies on 27 February 2023 found no dumping, littering or threat of violation, and noted the renovations had reduced environmental impact. The grievance actually concerned renovation of bandas that predated the Petitioner's acquisition of the plot, works not requiring an EIA.

p. 6
02

Whether the right to fair administrative action (Article 47) and legitimate expectation were violated

Holding

Not violated; the claim failed the reasonable-precision standard and no administrative action was identified

Reasoning

The Petition merely reiterated Article 47 without specifying the administrative action contested, the Respondent responsible, or the elements of legitimate expectation invoked. The court applied the legitimate-expectation principles from the Communications Commission of Kenya case and held the claim did not meet the required standard of reasonable precision for a constitutional claim.

p. 7
03

Whether the 1st Respondent managed public land in contravention of Article 67(2)

Holding

No; the 1st Respondent acted within the BMU Regulations and there was no conveyance or disposition of the land

Reasoning

The structures were renovations, not new constructions, and the 1st Respondent, a registered Beach Management Unit, acted within the Fisheries (Beach Management Unit) Regulations, 2007 which grant registered units rights over their constituted areas, including authority to construct necessary structures with the director's permission. The claim of conveyance or disposition of the land was unsupported by evidence.

p. 7
04

Whether the right of access to information (Article 35) was violated

Holding

Not violated; no evidence of any request for information was presented

Reasoning

The Petition alleged denial of access to reports on the 1st Respondent's developments, but no evidence was presented of any request for information directed to any Respondent or other party. The claim therefore failed for want of substantiation.

p. 5

Legal principles established

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  • A party who asserts a fact bears the burden of proving it; a petitioner claiming an actual violation of a constitutional right must substantiate it with evidence
  • Constitutional petitions must be pleaded with reasonable precision, identifying the provision violated, the manner of violation and the violator (Anarita Karimi Njeru rule)
  • Renovations of pre-existing bandas do not require an environmental impact assessment under EMCA

Court orders

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  1. 1.The Petition is dismissed
  2. 2.The Petition is dismissed with costs to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 35; Article 40; Article 42; Article 47; Article 67(2); Article 69; Article 159; Fourth Schedule, Part 2, paragraph 1(e)
  • Evidence ActSection 107
  • Environmental Management and Coordination Act, 1999 (EMCA)Section 58(1) and Second Schedule
  • Fisheries (Beach Management Unit) Regulations, 2007 (Legal Notice No. 402 of 2010)Sections 3(1), 5(1), 6(7)
  • Fair Administrative Action Act (FAA)Section 6(1)
  • Civil Procedure ActSections 1A and 1B
  • Appellate Jurisdiction ActSections 3A and 3B

Cases cited (5)

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] KECA 445 (KLR)
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    SC Petition No 14, 14A, 14B and 14C of 2014; [2014] eKLR
  • Rai & 3 others v Rai & 4 others
    [2014] KESC 31 (KLR)
  • Anarita Karimi Njeru
  • Thorp v Holdsworth
    (1876) 3 Ch. D. 637
Jurisdiction invoked
Constitution of Kenya, 2010 (original jurisdiction over alleged violations of Articles 35, 40, 42, 47 and 67(2); Article 162(2)(b) jurisdiction of the Environment and Land Court over public land disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sanders v Shella Beach Management Unit & 3 others (Environment & Land Petition E005 of 2023) [2025] KEELC 3505 (KLR)", Case Analysis (2025). Petition dated 14 February 2023 (as amended on 21 July 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3505/eng@2025-04-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.