Watamu Association v Tara Wood & 3 others (Environment and Land Petition E003 of 2023) [2026] KEELC 2457 (KLR)
The bottom line
#A Kenyan court ordered demolition of a beachfront building on protected riparian land and fined the developer and regulators millions of shillings.
What this practically means
#Executive summary
#Key legal issues
#Judicial abstention/exhaustion
The doctrine does not oust this court's jurisdiction; the impugned prayer sought constitutional interpretation within the court's original environmental jurisdiction
The court distinguished Valentini, where the prayers could be dealt with by the National Environment Tribunal or the Physical Planning Liaison Committee. Here, prayer (iv) sought a declaration that approvals were obtained inconsistently with the Constitution, a constitutional question within Article 165(2)(b) and Section 13(1) ELC Act. Referral would also risk time-bar complications, an improper outcome in a dispensation abhorring technicalities.
Whether the development is on riparian land
The structure is within the riparian reserve; the admitted 'coastal foreshore reservation' fixes it within the minimum 60-metre strip above the high-water mark
EMCA, the Survey Act and PLUPA do not define 'riparian zone' or 'coastal foreshore reservation'. Regulation 110 of the Survey Regulations (60m) applies only to unalienated government land being surveyed for alienation, but the court adopted Regulation 14 of the PLUPA Regulations (300m for the Indian Ocean), holding that where titled land has encroached the 300 metres, the 60-metre strip remains the reserved area. The 1st respondent admitted building on government land designated coastal foreshore reservation, within that strip.
Validity of the NEMA and County approvals made in a deceased person's name
The approvals and licences are illegal, null and void ab initio because the Summary Project Report was made and submitted in the name of Cherry Rosanne Wood, who died on 5/5/2021
Relying on Ernest Ngugi Waithaka, Japhet Nzila Muangi and McFoy v UAC, the court held that a suit or process commenced by or in the name of a dead person is a nullity from inception and cannot be cured by substitution. The SPR was acknowledged on 10/11/2022, over 18 months after death, and introduced the deceased as 'project proponent', so no controversy existed that she did not commission or sign it.
Whether an EIA Study Report and licence were required
Yes - the development, wrongly sited on a riparian reserve, falls under the Second Schedule of EMCA as a high-risk project being out of character with its surroundings, requiring a full EIA Study Report under Section 58(2)
Though a single dwelling house would not ordinarily require an EIA study if within a proper planning zone, the structure was in a sensitive ecological zone. Regulation 17(b) of the Wetlands Regulations makes EIA mandatory for all major activities on river banks, lake shores and the seashore, and Kenya's obligations under the CBD and CITES reinforce protection. The cumulative effect of unregulated 'small houses' on riparian reserves risks severe ecological destruction, making sustainability scrutiny mandatory.
Violation of Articles 42, 62, 63(2)(2)(l), 69 and 70
The 1st, 2nd and 3rd respondents jointly and severally violated the petitioner's members' rights under Article 42(a) and 69(1)(a), (e) and (g), and engaged in constructive allocation of public land contrary to Article 62(4)
The 1st respondent built on riparian reserve contrary to Section 58(2) EMCA. The 2nd and 3rd respondents held police powers under their statutes but never ensured implementation within licensed boundaries nor took remedial action, rendering them complicit. Their acts and omissions led to constructive allocation and utilization of public land to the 1st respondent in violation of Article 62(4).
Legal principles established
#- A minimum strip of 60 metres above the high-water mark is a riparian reserve, and land defined as coastal foreshore reservation under Regulation 110 of the Survey Regulations is subsumed within the riparian reserve defined by Regulation 14 of the Physical and Land Use Planning (General Development Permission and Control) Regulations
- No legal process can be commenced by or in the name of a deceased person; an application made by a deceased person is a nullity ab initio and approvals founded on it are illegal, null and void
- A dwelling house erected in a sensitive ecological zone such as a riparian reserve is 'an activity out of character with its surrounding' and thus falls within the high-risk projects of the Second Schedule to EMCA, requiring a full EIA Study Report under Section 58(2)
- Environment-related constitutional petitions coexist with statutory remedies and are not struck out for breach of exhaustion where constitutional violations are alleged
Court orders
#- 1.Declaration that the land created and lying between LR Number 8594/13 and the shores of the Indian Ocean is a riparian reserve and public land by virtue of Article 62(1)(l) of the Constitution
- 2.Declaration that construction or development of multi-storey and permanent concrete structures in riparian zones without any environmental impact assessment study report is inconsistent with sustainable utilization, management and conservation of the environment and a threat to the right to a clean and healthy environment
- 3.Declaration that the construction of the structure by the 1st respondent is being undertaken outside LR Number 8594/13 and on the riparian zone and is therefore illegal
- 4.Declaration that the approval NEMA/SPA/10439 by the 2nd respondent and CGK/P/WTM/192/2022 by the 3rd respondent were obtained in a manner inconsistent with the requirements of the Constitution, rendering the resultant construction illegal
- 5.Permanent injunction restraining the 1st respondent from any construction or further construction of the permanent building outside the boundaries of LR Number 8594/13 or on the adjacent riparian reserve land
- 6.The 1st respondent shall within 30 days, under the supervision and joint direction of the 2nd and 3rd respondents and at her own cost, demolish the structure under construction on the riparian reserve and restore the land and environment on LR Number 8594/13 and adjacent riparian reserve land as nearly as possible to the state before the construction
- 7.In default of order (f), the petitioner shall, under the supervision of the 2nd and 3rd respondents jointly at their own costs, effect the demolition, with enforcement costs quantified and aggregated with taxed costs and recovered from the 1st respondent
- 8.The 2nd respondent shall audit the environmental impact of the construction and take necessary measures to protect the environment, filing a formal report on the restoration, with a mention date assigned within 7 months of the judgment
- 9.The 1st respondent to pay the petitioner Kshs 4,000,000/- as exemplary damages
- 10.The 2nd respondent to pay the petitioner Kshs 10,000,000/- as punitive damages
- 11.Recommendation that the 2nd respondent take appropriate action against responsible officers in Kilifi County for failure to exercise diligence
- 12.The 3rd respondent to pay the petitioner Kshs 10,000,000/- as punitive damages
- 13.Recommendation that the 3rd respondent take appropriate action against its officers who held office during the period of implementation
- 14.The costs of the petition be borne by the 1st, 2nd and 3rd respondents jointly and severally
- Jurisdiction invoked
- Article 165(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court Act, read with Section 3 of EMCA
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Watamu Association v Tara Wood & 3 others (Environment and Land Petition E003 of 2023) [2026] KEELC 2457 (KLR)", Case Analysis (2026). Malindi ELC Petition No. 3 of 2023 (dated 30th January 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2457/eng@2026-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.