Gathoga v Attorney General (Environment and Land Petition E049 of 2024) [2025] KEELC 18448 (KLR) (27 November 2025) (Judgment) Neutral citation: [2025] KEELC 18448 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ENVIRONMENT AND LAND PETITION E049 OF 2024 J OMANGE, J NOVEMBER 27, 2025 BETWEEN NANCY WARIGIA GATHOGA ........................................................... PETITIONER AND THE HON. ATTORNEY GENERAL ................................................. RESPONDENT JUDGMENT 1. This Petition arises out of the actions of ocials from the Provincial Administration who in the month of May 2024 went to the locality of LR NO 36/IV/ 71 where the Petitioners ats are situated and marked some buildings for demolition arguing that the buildings are on riparian land. The applicant avers that the action followed demolitions of adjourning properties occasioning her real fear that her property could be demolished without notice. 2. It is the Petitioners case that the block of ats is situate on her property and as the lawful registered owner she should be protected from any arbitrary action by the Respondent. 3. The Petition was not opposed as the Respondent who was served did not le a response on behalf of the government ocials. The factual assertions remain uncontested and unrebutted. The Court must determine the constitutionality of the threatened acts on the basis of the Petitioner’s sworn evidence. 4. Counsel for the Petitioner led submissions which the court has duly considered. Arising from the Petition and submissions the court distills the following issues for determination; Whether the marking of the Petitioner’s home for demolition without notice or hearing amounts to an imminent violation of constitutional rights.Whether such threatened demolition would violate Articles 40 (property), 47 (fair administrative action), 28 (dignity) and 43 (adequate housing).Whether the Court should issue declaratory and injunctive relief. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18448/eng@2025-11-27 1
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5. The Constitution of Kenya lays the foundation for protection from arbitrary action by state ocers against citizens. Article 10 enshrines the national values and principles of governance, including human dignity, participation, inclusiveness, transparency, and accountability. All public ocers should be guided by these values and principles in all administrative actions. 6. Article 40 of the Constitution safeguards the right to property, prohibiting deprivation of property except in accordance with the law and upon prompt payment of just compensation. 7. It is the uncontested evidence of the Petitioner that neighboring homes were demolished without engagement, notices or compensation. The ats on the Petitioners property have now been marked. In these circumstances the Petitioner can only assume the worst. Article 22 expressly empowers a person to seek relief where a right is denied, violated, infringed or threatened. 8. Article 40 forbids arbitrary deprivation of property. Demolition constitutes deprivation. In Ibrahim Sangor Osman v Minister of State for Provincial Administration (2011) eKLR, the Court correctly noted that a bulldozer is not a tool of governance in a constitutional democracy. 9. A demolition amounts to an eviction of a land owner from his/ her property. As this court has held before, state led evictions must satisfy the test of legality, procedural fairness and proportionality. 10. Section 152C-152E of the Land Act provide the parameters for notice for eviction to be;Be in writing, published in the gazette and a local dailyBe served personally, posted on the land and to local administrationSpecify reasons for eviction, date and intended steps for resettlementThe notice should also provide avenues for redress or challenge 11. This is in line with internationally accepted guidelines for eviction which provide that eviction must satisfy the following elements; 12. a. appropriate notice to all potentially aected persons that eviction is being considered and that there will be public hearings on the proposed plans and alternatives; b. eective dissemination by the authorities of relevant information in advance, including land records and proposed comprehensive resettlement plans specically addressing eorts to protect vulnerable groups; c. a reasonable time period for public review of, comment on, and/or objection to the proposed plan; d. opportunities and eorts to facilitate the provision of legal, technical and other advice to aected persons about their rights and options; and e. holding of public hearing(s) that provide(s) aected persons and their advocates with opportunities to challenge the eviction decision and/or to present alternative proposals and to articulate their demands and development priorities. The marking of an x on a building falls far short of the Constitutional and statutory requirements for carrying out a lawful eviction or displacement. I therefore nd that the Petitioner has established that this court ought to issue the orders sought. The application is thus allowed in the following terms; a. A Declaration is hereby issued that the impending demolition of the Petitioners block of ats on LR NO 36/1V/71 without notice, and without giving her a hearing is unlawful and that if eected would amount to arbitrary destruction and deprivation of property contrary to Article 40 (3) ,43 and 47 of the Constitution https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18448/eng@2025-11-27 2
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b. A permanent injunction is hereby issued restraining the Respondents from demolishing or interfering with the Petitioner’s block of ats on LR NO 36/1V/71 c. The Respondents shall ensure any administrative actions comply with are in strict compliance with the Constitution. d. There are no orders as to cost. RULING SIGNED DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 27TH DAY OF NOVEMBER, 2025 JUDY OMANGE JUDGE In the presence of Court Assistant Catherine Judgement Pet E049 Of 2024 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18448/eng@2025-11-27 3
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