Mbae & 4 others (Suing on behalf of the affected Residents and Landowners of Kihoto Area, Naivasha Sub County, Nakuru County) v Cabinet Secretary, Ministry of Interior and National Administration & 2 others (Environment and Land Petition E009 of 2025) (Constitutional and Human Rights) [2026] KEELC 111 (KLR)
The bottom line
#Kenya's government must now resettle or compensate Naivasha flood victims after a court ruled its years of inaction violated their constitutional rights.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioners proved their constitutional petition to the required standard in an undefended cause
Held that the petitioners proved their case; the 2021 Parliamentary Report and minutes shifted the burden of proof to the absent respondents and established the State's actual knowledge of the crisis
The court applied the Anarita Katimi Njeru standard requiring precision in pleading constitutional violations. The petitioners identified specific articles (26, 28, 40, 42, 43, 69, 70) and annexed a Parliamentary Report, minutes of Committee sittings, title deeds, photographs and a video link. The respondents, despite service, did not participate. The Parliamentary investigation officially confirmed the severity of the flooding and recommended specific action, making the State's inaction actionable negligence.
Whether the respondents violated the petitioners' rights to life, dignity, housing, property and a clean and healthy environment
Held that the respondents violated articles 2(1), 23(1)(3), 28, 40, 42, 43, 69 and 70 of the Constitution through their inaction and failure to implement the Parliamentary recommendations
Living in floodwaters contaminated by sewerage threatened the right to life; makeshift shelters without sanitation violated dignity and housing rights; submersion of titled property without compensation breached article 40(3); failure to mitigate contamination and enforce riparian buffers breached environmental rights. Ignoring the Parliamentary recommendations breached the State's foundational duty under article 21(1) to respect, protect, promote and fulfil Bill of Rights rights.
Whether the State breached its environmental and disaster management obligations, including the precautionary principle
Held that NEMA failed its supervisory role and the Ministry of Interior failed to coordinate disaster response; the respondents' 'wait and see' approach violated the precautionary principle under section 2 of EMCA and principle 15 of the Rio Declaration
The rising lake levels were not sudden; the Parliamentary Report identified Kihoto as a high-risk zone, so NEMA had a statutory duty to enforce land-use guidelines and riparian buffers. The National Disaster Risk Management Policy 2018 required proactive risk reduction and a continuum of care from relief to rehabilitation. Failure to declare the disaster short-circuited emergency funding triggers. The precautionary principle required immediate action despite scientific uncertainty.
Whether the State's engagement with the Kihoto community created a legitimate expectation
Held that the Committee's direct engagement with the Kihoto Homeowners Self-Help Group created a legitimate expectation under article 47 of the Constitution
The minutes of the 33rd and 57th sittings showed the State, through the Departmental Committee, engaged directly with the Kihoto Homeowners Self-Help Group regarding their displacement. This engagement, combined with the adoption of recommendations, created a legitimate expectation of action under administrative law principles, which the State's total silence betrayed.
Whether the court should grant structural, supervisory remedies
Held that restorative, protective and forward-looking structural interdicts were appropriate, with the court retaining supervisory jurisdiction through 60-day reporting
Relying on article 23(3), the court found the reliefs sought were not punitive but restorative and forward-looking. Given the continuing humanitarian and environmental crisis and the respondents' non-participation, the court issued a suite of mandatory orders including a resettlement action plan, compensation in the alternative, remarking of the riparian boundary, a multi-agency task force, and retained jurisdiction with 60-day compliance reporting until full compliance.
Legal principles established
#- A constitutional petitioner must prove violation on a balance of probabilities by identifying with precision the provisions infringed and the manner of infringement (Anarita Katimi Njeru rule)
- The right to housing accrues to every individual by virtue of citizenship and is a component of the right to dignity; the State cannot watch a community become homeless due to a foreseeable disaster and do nothing
- The precautionary principle forbids postponing cost-effective measures to prevent environmental degradation on grounds of lack of full scientific certainty
- Article 21 of the Constitution demands proactive and sustained commitment by the State, not passivity, in fulfilling Bill of Rights obligations
Court orders
#- 1.The respondents shall implement the recommendations of the Report by the Departmental Committee on Environment and Natural Resources of the National Assembly into the rising water levels in Kenya's Rift Valley Lakes, including Lake Naivasha
- 2.The respondents shall immediately mobilize national emergency resources for the provision of clean water, sanitation, and medical supplies to the displaced residents of Kihoto
- 3.The respondents shall formally initiate the Resettlement Action Plan as recommended by the 2021 Report by identifying and allocating alternative safe land for relocation of all persons affected by the floods
- 4.The respondents shall thereafter facilitate the evacuation of all residents currently affected by the flooding and rising water levels
- 5.In the alternative, the respondents shall valuate and compensate all affected landowners/victims holding genuine ownership documents and/or whose land has been submerged or repossessed for the riparian reserve, with such victims surrendering the titles to the repossessed land to the State
- 6.The respondents are directed to remark the riparian boundary of Lake Naivasha and thereafter create and enforce a buffer zone
- 7.The respondents shall establish and operationalize a multi-agency task force to enforce the orders and file a Comprehensive Action Plan in court within thirty (30) days detailing timelines for resettlement and/or compensation, steps to restore damaged infrastructure in Kihoto, and measures for permanent protection of the Lake Naivasha riparian zone
- 8.The respondents shall appear every sixty (60) days to report on progress of implementation of the Action Plan until full compliance is achieved, the court retaining jurisdiction
- 9.No costs, the petition having been brought in public interest
- Jurisdiction invoked
- Articles 23(1)-(3), 70 of the Constitution and section 3 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Mbae & 4 others (Suing on behalf of the affected Residents and Landowners of Kihoto Area, Naivasha Sub County, Nakuru County) v Cabinet Secretary, Ministry of Interior and National Administration & 2 others (Environment and Land Petition E009 of 2025) (Constitutional and Human Rights) [2026] KEELC 111 (KLR)", Case Analysis (2026). Petition dated 4th November, 2025 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/111/eng@2026-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.