Flora & 29 others v Cabinet Secretary, Ministry of Interior and Co-ordination of National Government & 4 others (Environment and Land Petition E023 of 2024) [2026] KEELC 1115 (KLR)
The bottom line
#The Environment and Land Court in Kisii dismissed 30 Gikomba property owners' challenge to riparian earmarking, holding that riparian reserves override private title.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the specificity test (Anarita Karimi Njeru)
The petition met the specificity test; the Petitioners pleaded with clarity how the impugned actions violated or threatened their rights
The 1st Respondent argued the petition merely cited constitutional articles without relating them to infringements, conflating specificity with burden of proof. The court found the Petitioners pleaded the 24th May 2024 press release, the 11th June 2024 earmarking, and how their rights under Articles 47, 50, 94(5), 29 and 40 were affected. The real question was whether the violations were subsequently proved, not whether the pleading was precise.
Whether the Petitioners' right to fair administrative action under Article 47 was violated
No violation; the earmarking did not amount to a threatened violation of Article 47
If the press release targeted encroachers, only they were entitled to notice or written reasons. The 3rd Respondent marked the properties on its own motion under statute, having published a notice in the Standard Newspaper of 29th May 2024, not pursuant to the press release. Further processes under the Water Act and Water Resources Regulations had to be followed before any demolition, no demolition was proved, and about half the Petitioners were aware of the 3rd Respondent's marking since a 2018 judicial review suit. The threat was not real.
Whether the 1st Respondent's directive usurped parliamentary authority contrary to Article 94(5)
No violation proved; the press release was made under authority conferred by legislation, notably section 42(3) of EMCA
Article 94(5) prohibits making provision having the force of law except under authority conferred by the Constitution or legislation. Section 42(3) of EMCA, a legislation, empowers the Minister to issue orders, regulations or standards for management of river banks, wetlands and coastal zones. The 1st and 2nd Respondents said the press release was made within the law, and the Petitioners did not specifically address this point in submissions, only arguing retrospectivity of the 2009 Regulations.
Whether the 2009 Wetlands Regulations were retrospectively applied in breach of Article 50
No; preservation of riparian reserves existed in legislation predating EMCA, so the Regulations were not being applied retrospectively
The Petitioners alleged their structures were built between 1993 and 1999 and claimed to hold development approvals under the Physical Planning Act 1996 but annexed no evidence of such approvals. Even so, the repealed Physical Planning Act (Cap 286), Rule 111 of the Survey Regulations 1994 and section 28 of the repealed Registered Land Act already regulated ecologically sensitive riparian areas. Petitioners' rights as private owners were always subject to that legislation.
Whether Articles 29(d), (f) and 40 were violated
No violation proved; no evidence of denial of use or psychological torture, and the right to own land is not absolute
Besides stating their properties were earmarked, the Petitioners did not plead when they were denied access, that they ceased using the developments, or that customers stopped using the premises, and none disclosed the psychological torture suffered. The press release did not order cancellation of titles. The impugned actions were land-use regulation under Article 66, and the petition was premature.
Legal principles established
#- A petitioner alleging constitutional violation must plead with specificity under the Anarita Karimi Njeru test and thereafter prove the violation; mere citation of articles is insufficient
- Riparian reserves are overriding interests; the right to own land is not absolute and the State may regulate land use under Article 66 of the Constitution
- Preservation of ecologically sensitive riparian areas was required even before EMCA, under the repealed Physical Planning Act (Cap 286), the Survey Regulations 1994 and the Registered Land Act (Cap 300)
Court orders
#- 1.The petition is dismissed for failure to prove violation of constitutional rights
- 2.Each party is to bear its own costs (the Petitioners were not condemned to pay the Respondents' costs)
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution read with Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Flora & 29 others v Cabinet Secretary, Ministry of Interior and Co-ordination of National Government & 4 others (Environment and Land Petition E023 of 2024) [2026] KEELC 1115 (KLR)", Case Analysis (2026). Petition dated 14th June, 2024 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1115/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.