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ELCDismissedNotice of Motion dated 27th June 2024 (Judicial Review)· [2026] KEELC 1439 (KLR)

Republic v Attorney General (For and on behalf of the Government of Kenya); Apiyo & 5 others (Ex parte Applicants) (Environment and Land Judicial Review Case E012 of 2024) [2026] KEELC 1439 (KLR)

High Court of Kenya
6 February 2026
2,287 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The High Court dismissed a bid to stop flood-related land demolitions in Nairobi, ruling no unlawful decision existed and emergencies can justify limiting hearing rights.

What this practically means

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Executive summary

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The ex parte applicants moved the High Court by Notice of Motion dated 27th June 2024 under Order 53 rules 3 and 4 of the Civil Procedure Rules and Articles 40, 47, 60 and 64 of the Constitution, seeking an order of prohibition quashing a decision to seize and/or alienate their Highridge Village plots for the development of social housing, parks, roads and other public utilities, with costs against the 2nd respondent. They held lease certificates issued in 2020, contended the plots were surveyed and approved under a land use plan, and complained that a Cabinet directive requiring residents along the Mathare, Ngong and Nairobi rivers to create an additional 30-metre planning corridor had led to their buildings being earmarked for demolition without individualised notices, hearings, reasons or public participation. They further alleged selective enforcement amounting to discrimination. The respondent entered appearance but filed no response. The court framed two issues: whether a proper basis for judicial review was established and whether prohibition ought to issue. Applying the illegality, irrationality and procedural impropriety tests and the scope of prohibition, the court found no specific unlawful decision targeting the applicants existed; the impugned notice was a precautionary flood-emergency measure, and any limitation of the right to fair administrative action was justifiable under Article 24. The discrimination claim failed for want of evidence. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether a decision capable of being prohibited existed

Holding

No specific unlawful decision targeting the applicants was demonstrated; the Cabinet notice was a general precautionary directive on flooding and did not constitute a decision to deprive the applicants of their land

Reasoning

The court examined the impugned notice and found it directed the Nairobi Rivers Commission, County Government and Ministry to work with riverine communities on a 30-metre planning corridor. There was no indication the notice targeted the applicants or their properties, and no decision to compulsorily acquire their land was evident. The claimed proprietary basis - a proposed land use plan and lease certificates - did not establish an unlawful decision by the respondents.

p. 4
02

Whether the applicants' right to fair administrative action (Article 47) was violated

Holding

No violation; any limitation of the right was justified under Article 24 as a necessary emergency measure to protect life and property during the floods

Reasoning

The court accepted that the applicants were not given a hearing, but held that floods are natural disasters that cannot be paused for consultations. The Special Cabinet's immediate priority was evacuating persons at risk and demolishing structures that could intensify flooding. Under Article 24 the limitation was reasonable and justifiable in an open and democratic society given the emergency.

p. 6
03

Whether the applicants were discriminated against contrary to Article 27

Holding

No discrimination proven; no evidence of differential or prejudicial treatment on any Article 27 ground

Reasoning

Although the applicants alleged that other structures within the corridor were not earmarked for demolition, they produced no cogent evidence showing they were treated differently from other persons in similar circumstances, nor any treatment on a ground enumerated in Article 27. The claim therefore failed.

p. 6
04

Misjoinder/identification of the decision-maker

Holding

The court noted that the decision attributed to the Cabinet was not challenged against the Cabinet, which was not joined as a party

Reasoning

The applicants attributed the impugned directive to the Cabinet but sued only the Attorney General on behalf of the Government without identifying the particular authority responsible for the decision. This weakened their claim for a prohibition order directed at the respondent.

p. 4

Legal principles established

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  • The right to fair administrative action under Article 47 is not absolute and may be limited in exceptional circumstances such as emergencies where immediate action is necessary to protect life and property
  • A proposed land use plan does not by itself confer proprietary rights in land
  • Prohibition cannot quash a decision already made; it only prevents a contemplated decision

Court orders

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  1. 1.The application dated 27th June 2024 is dismissed
  2. 2.No orders as to costs
Jurisdiction invoked
Articles 40, 47, 60 and 64 of the Constitution of Kenya, 2010 and Order 53 rules 3 and 4 of the Civil Procedure Rules, 2010

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, "Republic v Attorney General (For and on behalf of the Government of Kenya); Apiyo & 5 others (Ex parte Applicants) (Environment and Land Judicial Review Case E012 of 2024) [2026] KEELC 1439 (KLR)", Case Analysis (2026). Notice of Motion dated 27th June 2024 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1439/eng@2026-02-06

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