Tonui & 13 others v County Government of Kajiado & another (Environment & Land Petition E001 of 2023) [2025] KEELC 4712 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed Kajiado property owners' challenge to a demolition notice, ruling road reserves are public land and the petition was poorly pleaded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petition herein is competent
- 2.Whether the Petitioners' rights and fundamental freedoms have been breached, violated and infringed upon
- 3.Whether the Petitioners are entitled to the reliefs sought
- 4.Who should bear costs
Key legal issues
#Competency of the Petition
The Petition is incompetent for failure to satisfy the Anarita Karimi Njeru standard; the proper forum was a suit for determination of contested facts on ownership and compulsory acquisition
The court held the petitioners failed to prove violations of Articles 27, 28, 43 and 47, and that where ownership of parcels and compulsory acquisition are in contest, a suit rather than a petition is the appropriate vehicle so contested facts can be determined. It adopted the Gabriel Mutava principle that constitutional litigation should not substitute statutory forums.
Whether rights under Articles 27, 28, 40, 43 and 47 were violated
No violation established; the notice of 11th May 2023 targeted only structures encroaching on the road reserve and afforded an opportunity to engage the 1st Respondent
The petitioners admitted a 6-metre road reserve existed; the notice did not mention demolition of houses but required realignment within 14 days. The 1st Respondent was executing its mandate under the Physical and Land Use Planning Act. The road reserve is public land, so compulsory acquisition under Sections 107-133 of the Land Act does not apply.
Entitlement to reliefs
Petitioners not entitled to any of the reliefs sought; petition premature as dispute resolution mechanisms were not exhausted
Having found no proved violation and a competent statutory framework governing the road reserve, the court found the petition premature because the petitioners could still engage the dispute resolution mechanisms in the Physical and Land Use Planning Act before resorting to constitutional litigation.
Legal principles established
#- A constitutional petition must cite with particularity the constitutional provisions violated and the manner of violation, supported by evidence or a factual basis (Anarita Karimi Njeru standard)
- Constitutional litigation should not be used where suitable statutory forums exist for resolving the dispute
- A road reserve is public land and is not subject to compulsory acquisition
Court orders
#- 1.The Petition is dismissed
- 2.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 27, 28, 40, 43 and 47 of the Constitution; Section 13 of the ELC Act
Relief refused
#Declaration that the demolition of the Petitioners' property is illegal, irregular and unprocedural contrary to Articles 27, 28, 40, 43 and 47
Petition incompetent; failed Anarita Karimi Njeru standard of pleading and proving violations
Declaration that forceful eviction and demolition without relocation or compensation is illegal
The notice targeted only offending structures on a road reserve which is public land; no violation demonstrated
Permanent injunction against further demolition and forceful eviction
Petition premature; petitioners had an opportunity to exhaust dispute resolution mechanisms under the Act
General damages
Petition dismissed in its entirety; no violation established
Costs
Each party to bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion I find no merit in the Petition and the same is dismissed. As the petitioners are residents of the 1st Respondent I order each party to bear own costs.
I find the petition herein incompetent and as it does not satisfy the conditions set out in the Anarita Karimi Case.
It is public land and cannot be subject of any compulsory acquisition as it is already public land.
This petition is premature as the petitioners had an opportunity to exhaust dispute resolution mechanism set out in the Act.
Issues in the judgment
#The court states the survey of road reserves was to occur 'between 5th and 7th July 2023' whereas the notice itself and earlier paragraphs say 5th - 7th June 2023
The judgment contains an internal contradiction on the character of the road reserve: it first states 'This road reserve is not public land' then later holds it is public land
The case number of the petition is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tonui & 13 others v County Government of Kajiado & another (Environment & Land Petition E001 of 2023) [2025] KEELC 4712 (KLR)", Case Analysis (2025). Not stated in judgment (Petition dated 30th June 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4712/eng@2025-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.