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ELCDismissedConstitutional Petition filed 25th August 2023 (number not stated in judgment)· [2025] KEELC 4971 (KLR)

Ndambuki v County Government of Makueni & 4 others (Environment & Land Petition E001 of 2023) [2025] KEELC 4971 (KLR)

Environment and Land Court
3 July 2025
2,930 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A landowner's constitutional challenge to a Makueni county borehole failed because he couldn't prove his rights were actually violated.

What this practically means

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Executive summary

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The Petitioner, registered owner of Makueni/Uvaleni/1761 and claimed beneficiary of the adjacent deceased-owned Makueni/Uvaleni/161, petitioned against a county-funded Mbiini borehole project drilled from May 2023 on a 20x15 metre portion of the latter title. He sought declarations that the drilling, piping and purported compulsory acquisition violated his rights under Articles 40 and 42; that the 4th and 5th Respondents lacked capacity to sign the May 2023 proposal document; certiorari to quash that document; permanent injunctions; compensation for trespass; prohibition; and reclamation of the land. The Respondents entered appearance but filed no response; a preliminary objection by the 1st Respondent had earlier been dismissed on 22nd May 2024, and the project was completed before injunctive relief could be heard. The court applied the Communication Commission of Kenya (Anarita Karimi Njeru) principle requiring a demonstration of the rights infringed and the manifestation of contravention. On Article 40, it found no compulsory acquisition occurred, noting the Petitioner's own averment that the portion fell on riparian land, which is not private land capable of acquisition; damage from machinery, if any, sounded in tort. On Article 42, the Petitioner failed to demonstrate any effect on the Kwangole River ecosystem or surrounding environment of the completed, community-benefiting project. The court also observed the Petitioner never disclosed his relationship with the 4th and 5th Respondents, suggesting lack of good faith. The petition was dismissed in its entirety with no orders as to costs on 3rd July 2025.

Key legal issues

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01

Alleged violation of Article 40 property rights by compulsory acquisition without compensation

Holding

No compulsory acquisition was undertaken; the Petitioner's own pleadings place the 20x15m portion on riparian land, which is not private land, so no acquisition arose

Reasoning

The court found that no compulsory acquisition occurred over either title. The Petitioner himself stated that a survey showed the borehole portion fell on riparian land. Since riparian land cannot be privately owned or acquired, the compulsory acquisition claim failed. The claim of pipes laid and machinery passing over Makueni/Uvaleni/1761, if proved, sounds in tort, not under Article 40.

p. 6
02

Alleged violation of Article 42 right to a clean and healthy environment

Holding

The Petitioner did not remotely demonstrate how the completed borehole would affect the Kwangole River ecosystem, vegetation or water catchment areas

Reasoning

The court applied the Communication Commission of Kenya requirement of a link between the aggrieved party, the constitutional provisions and the manifestation of contravention. The project was complete and benefiting the community, and the Petitioner adduced nothing showing how groundwater drawing would destabilise the ecosystem or degrade the river basin, so the Article 42 claim failed.

p. 7
03

Validity of the 4th and 5th Respondents' consent/proposal document over the deceased's land

Holding

The claim failed because the Petitioner did not disclose his relationship with the 4th and 5th Respondents, indicating lack of good faith

Reasoning

Although the Petitioner argued the consent was a nullity for want of capacity or power of attorney, the court observed he never disclosed his relationship to the 4th and 5th Respondents while asking the court to nullify their signature. This absence, coupled with the failure to prove constitutional violations, led to dismissal of the petition in its entirety.

p. 7

Legal principles established

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  • A party invoking Article 22(1) must show the rights alleged to be infringed and the basis of the grievance - the Anarita Karimi Njeru principle
  • Riparian land is not private land capable of compulsory acquisition
  • Claims in tort for damage caused by machinery passing over land do not found a constitutional petition under Article 40

Court orders

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  1. 1.The constitutional petition is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Articles 22(1), 23, 40, 42 and 70 of the Constitution of Kenya (constitutional petition for violation of fundamental rights)

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, "Ndambuki v County Government of Makueni & 4 others (Environment & Land Petition E001 of 2023) [2025] KEELC 4971 (KLR)", Case Analysis (2025). Constitutional Petition filed 25th August 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4971/eng@2025-07-03

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