Njiru v Croton Ridge Gardens Association & 2 others

4. The Petitioner contends that the 1st Respondent has further hired the service of the 3rd Respondent to frustrate him by declining to open the gate with a view of compelling him to involuntarily join the association. 5. He adds that the said conditions are unconstitutional and the same violate Article 36 of the Constitution of Kenya 2010. Additionally, the Petitioner states that the actions of the Respondents of erecting a gate on a public road leading to his residential home limits and violates his rights under Article 40 of the Constitution. He further contends that the decision by the Respondents not to open the gate erected on the public road when he is in exercise of his right to freedom of movement by entering, remaining in and residing at his residential home limits his rights enshrined in Article 39 of the Constitution. 6. The Petitioner thus seeks the following reliefs: a. A declaration that the road in question is public land within the meaning of Article 62 as read together with Section 2 of the Land Act and Land Registration Act respectively. b. A declaration that at the time of erecting the gate, the Respondents failed to comply with the provisions of Section 12(1) of the Land Act. c. A declaration that the Respondents cannot erect a gate on public land. and that neither the petitioner herein nor any other members of public can be barred from accessing or making use of the public land in question. d. A declaration that the conditions placed and pleaded hereto by the petitioner amounts to compelling the petitioner to involuntarily join the Respondents' association, and that the same amounts to a violation of the petitioner's freedom enshrined under Article 36 of the Constitution. e. A declaration that the Respondents' action of erecting a gate on a public land that is restricting the petitioner's free movement amounts to a violation of Article 39 of the Constitution. f. A declaration that the gate constitutes a closure of a public road within the meaning of Section 58(c) of The Kenya Roads Act and that the same amounts to an oence within the meaning of Section 59(f) of the Act. g. A declaration that the Respondents' action of erecting a gate on a public road that is restricting the petitioner's access to his property amounts to a violation of the petitioner's rights enshrine under Article 40 of the Constitution. h. A declaration that the Respondents erected the said gate without undertaking the requisite public participation. i. An order compelling the Respondents herein to demolish and/or remove the oending gate, and allow the petitioner, his family and visitors unrestricted access and movement to and from the estate. j. A declaration that in light of the foregoing violations, the petitioner is entitled to an award of damages. k. An order of prohibition to remove to this Honorable Court prohibiting the Respondents herein from ever denying and/or restricting the Petitioner, his agents, his family members, relatives, servants, and/or any other person whosoever acting under the Petitioner's instructions, ingress and egress to his residence situated within Croton Ridge Gardens https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18677/eng@2025-07-22 2

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more specically on LR. No. Juja/Kiaura Block 8 (Mang'u)/1728 and JUJA/Kiaura Block 8(Mang'u)/1729. 7. l. An order directed to the OCS Kabii Police station to supervise the implementation and compliance of this order. m. Damages. n. Cost of this application be provided for. Contemporaneously with the Petition, the Petitioner led a Notice of Motion of even date seeking the following orders: a. Spent b. Spent c. Spent d. That pending hearing of this petition, this Honourable Court be pleased to issue a conservatory order as against all the Respondents herein, jointly and severally, their servants, agents, assignees and/or nominees compelling them to allow the petitioner, his wife, children and/or visitors free and unrestricted access, ingress and egress to and from the Croton Ridge Gardens, by way of opening the gate barricading the main entrance to the estate any time the petitioner, his wife, his children or his visitors wishes to gain entry into the estate, and to allow unrestricted ingress and egress of Motor Vehicle Reg. No. KBN 289A, KCH525F, KBK 053T AND KBW972M. e. That costs be in the cause. 8. The application is premised on the various grounds set out in the Notice of Motion and the Supporting and Supplementary Adavits of Ndegwa Njiru, sworn on 30th January 2025 and 28th April 2025, respectively. 9. In his Supporting adavit, Ndegwa Njiru averred that he is the registered proprietor of Land Reference Numbers Juja/Kiaura Block 8 (Mang'u)/1728 and Juja/Kiaura Block 8 (Mang'u)/1729, both of which are situated within an area commonly referred to as Croton Ridge Gardens. He annexed ocial searches and title documents in support of his claim. 10. He contended that he had constructed his matrimonial home on the said parcels of land, where he resides with his family, and had attached photographic evidence to support this assertion. 11. It was the Applicant’s position that he holds a freehold interest in the properties, which are free from encumbrances other than those overriding interests recognized by law. He further claimed that these facts were within the knowledge of the Respondents at the time he purchased the said parcels. 12. The Applicant asserted that prior to acquisition, he had veried that the properties were adequately serviced by public roads, with access to the main Kenyatta Road. He maintained that, to this extent, the relevant legal provisions, including those under the Physical and Land Use Planning Act, the Land Act, and the Public Roads Act, had been duly complied with. 13. He further contended that the public road in question serves as the main and only access route for landowners within Croton Ridge Gardens. The Applicant maintained that the road conforms to the legal denition of a public road under Section 2 of the Physical and Land Use Planning Act. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18677/eng@2025-07-22 3

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14. The Applicant asserted that upon acquiring an indefeasible freehold title, he had a legitimate expectation that all public utilities, including roads as dened in the Registry Index Map (RIM), would remain accessible to all members of the public. He claimed that at no time did he anticipate that any private individual or association would erect barriers restricting such access. 15. He further averred that the cadastral survey map clearly designates the road in question as public land. Accordingly, he argued that the Respondents could not lawfully erect any barrier or gate on the said road without adherence to due process. A copy of the cadastral map was annexed in support of this position. 16. The Applicant recounted that, notwithstanding the public character of the road, the 1st Respondent, without any public participation, proceeded to erect a gate at the only main entrance to Croton Ridge Estate. He contended that this action had resulted in the restriction of the free movement of persons, goods, and services in and out of the estate. 17. He claimed that the 1st Respondent had engaged the 3rd Respondent to man the said gate and that access was now being arbitrarily regulated. According to the Applicant, only those residents who had complied with the 1st Respondent’s demand to join a residents’ association, by paying a Kshs. 60,000 membership fee were being granted unimpeded entry. 18. The Applicant asserted that non-members, including himself, were subjected to discriminatory and burdensome conditions, including personally opening the gate and being denied service by the 3rd Respondent’s security guards. He maintained that his children were similarly aected. 19. He further contended that the Respondents had denied entry to his guests and family on account of his refusal to join the association, thereby subjecting him and his family to embarrassment and hardship. 20. The Applicant argued that the 1st Respondent had unlawfully enacted by-laws and imposed unconstitutional conditions aimed at compelling him to join the association. He asserted that these actions violated his rights under Article 36 of the Constitution, particularly the right not to be compelled to associate. 21. It was the Applicant’s position that the Respondents’ actions had caused emotional and psychological distress to him and his family. He claimed that his school-going children had on several occasions missed school or been forced to walk long distances to the gate. 22. He stated that he had issued a demand letter dated 20th June 2024 requesting intervention and enforcement of his constitutional rights, but that the Respondents had persisted in their allegedly unlawful conduct. 23. The Applicant, relying on legal advice, recited various constitutional provisions, including Articles 1, 2(1) and (2), 3, 10, 19(1), 20 (4), 25, 27(1), 36 (1) and (2), 39 (1) (3), 40(1) and (2) (b) and 50 of the Constitution of Kenya, 2010. He asserted that the actions of the Respondents violated these provisions in various respects, including the right to property, freedom of movement, and freedom of association. 24. He further cited provisions of the Kenya Roads Act and the Public Roads and Roads of Access Act, arguing that the erection of a gate on a public road amounted to an unlawful obstruction, which constitutes an oence punishable under Sections 58(c) and 59(f) of the Kenya Roads Act. 25. The Applicant contended that the closure of the public road by the Respondents had unlawfully impeded his ability to access his property, thereby violating his rights under Article 40 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18677/eng@2025-07-22 4

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26. He further stated that he was possessed with the right to institute these proceedings under Articles 22 and 258 of the Constitution of Kenya 2010, and that this Honourable Court has jurisdiction to hear the matter pursuant to Article 162(2)(b). 27. In conclusion, the Applicant maintained that he had the requisite locus standi to bring this petition and that the Respondents’ actions, in restricting access to his property and compelling association, amounted to constitutional violations warranting judicial intervention. 28. The application was opposed by the 1st and 2nd Respondents through the adavit of Dr. Wilson Muna, an ocial of Croton Ridge Gardens Association, sworn on 18th February, 2025. 29. Dr. Wilson Muna, deposed in his replying adavit that he was well-versed with the facts of the matter and thus competent to respond. He stated that the Association is a duly registered society under the Societies Act, with a certicate of registration issued in April 2018. It operates under a Constitution and bylaws amended periodically, to manage security and facilitate development projects within the estate. 30. He averred that the Association conducted public participation regarding the formulation and adoption of its bylaws. He added that they involved stakeholders including residents, developers, government agencies, and the County Government, through invitations sent by letter and publicized via national newspapers. He conrmed that the meeting held on 27th October 2022 culminated in the adoption of the bylaws, one of which sanctioned controlled access to the estate and outsourcing of security services. He denied the Petitioner’s allegation that there was no public participation, terming it baseless. 31. Dr. Wilson Muna further stated that when the Petitioner purchased the plots in question, Croton Ridge Gardens was already a gated estate, complete with a gate manned by security guards. He claried that the Association’s jurisdiction encompassed the area previously known as Mutundu Farm, later divided into specied parcels under Juja/Kiaura Block 7 and Block 8 of approximately 2,500 plots. He added that approximately 480 plots were developed, and that 689 residents had voluntarily subscribed to the Association. 32. He explained that the estate was conceptualized as a single-dwelling gated community, a fact he contended was known to the Petitioner at the time of purchase of his properties. He further contended that initially, the estate lacked basic infrastructure such as roads and fencing, prompting the formation of the Association to address these deciencies through member contributions. The Association has since developed roads, erected gates, constructed drainage systems, and enhanced security, all funded by member contributions. 33. In response to allegations of unlawful gate erection, Dr. Wilson Muna contended that the gate existed from inception and was only modernized and slightly relocated within the estate’s internal boundary. He asserted that this was done with authorization, and that guards had been stationed at the gate long before the Petitioner’s acquisition of his properties. 34. He denied that the Petitioner or any other resident was forced to join the Association, stating membership was voluntary. However, members who pay a nominal Kshs. 500 monthly fee benet from gate opening services and 24/7 security coverage across the estate. Non-members, while not denied access, must manually open the gate themselves. The gate remains unlocked and unmanned for such individuals. 35. He denied any discrimination or obstruction of access to the Petitioner, his visitors, or other nonmembers. He questioned the Petitioner’s motive, asserting that he knowingly bought into a gated community and now unfairly seeks to enjoy services he does not contribute towards. He characterized https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18677/eng@2025-07-22 5

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the Petitioner’s conduct as that of a “freeloader” and stated that the refusal to pay a minimal service fee undermines the eorts and contributions of other residents. 36. Dr. Wilson Muna asserted that the requirement to pay for services such as security and gate management does not violate constitutional rights under Article 36, as it does not compel association membership. He contended that individual rights, including those under Articles 27, 28, 40, and 47 of the Constitution, are not absolute and must be balanced against the collective rights of the community. He emphasized that the Association operates lawfully and in the best interest of the estate, in line with both constitutional and statutory frameworks. 37. He cited the Kiambu County Community and Neighbourhood Associations Promotions, Participation, and Engagement Act, 2016 (No. 8 of 2016) and the Public Roads and Roads of Access Act in support of the estate’s controlled access, arguing that the estate roads are private and not subject to unrestricted public access. 38. Dr. Wilson Muna challenged the legitimacy of the Petitioner’s claims, especially since the gate and security structures predated the Petitioner’s occupation. He further alleged that on 16th February 2025, the Petitioner damaged estate property by forcefully ramming his vehicle into the gate, an incident reported to the police under OB No. 19/17/02/2025, and captured by CCTV footage. 39. In conclusion, he prayed that both the Application and Petition dated 30th January 2025 be dismissed with costs, asserting that the Petitioner approached the court with unclean hands, seeking to benet from services he deliberately refused to fund. 40. The 3rd Respondent opposed the Application through a Replying Adavit sworn by Julius Ithai, the managing director of the 3rd Respondent, on 19th February 2025. Julius Ithai asserted that the 1st Respondent contracted the 3rd Respondent on 29th April 2024 to provide security services to its members at Croton Ridge Estate, situated along Exit 14 of Kenyatta Road. He annexed a copy of the contract in support of his claim. He added that under the terms of the contract, the 3rd Respondent was expected to provide monthly security services for a fee payable by the 1st Respondent. He contended that the contract required the deployment of seven guards during the day and four at night, responsible for manning the gate, patrolling various estate sections, including the Petitioner's area. 41. The 3rd Respondent’s managing director further contended that the 1st Respondent issued car stickers to residents who were fully paid-up members, and accordingly, guards of the 3rd Respondent only opened the gate for vehicles bearing valid stickers. He claried that any resident without a sticker, including the Petitioner, was expected to manually open and close the gate, in line with operational guidelines issued by the 1st Respondent. Visitors were cleared through the estate clerk before being allowed access. 42. The 3rd Respondent’s managing director denied any discrimination against the Petitioner, stating that the gate access protocol was uniformly applied to all residents, without exception. He emphasized that the 3rd Respondent adhered strictly to Article 27 of the Constitution, which guaranteed equality and freedom from discrimination. He added that the guards operated under express instructions from the 1st Respondent and did not act with bias or prejudice. 43. He stated that the security procedures, including the sticker policy, are designed to enhance the safety of residents and their property and are neither arbitrary nor unreasonable. He further stated that the allegations of discrimination raised by the Petitioner were dismissed as unfounded and misleading, with the 3rd Respondent insisting that no resident, including the Petitioner, has ever been denied access to the estate. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18677/eng@2025-07-22 6

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44. The 3rd Respondent’s managing director also referenced an incident that allegedly occurred on 16th February 2025, where the Petitioner is said to have deliberately rammed his vehicle (KBN 289A) into the gate, causing damage. He stated that the incident was reported both to the 1st Respondent and to the police. 45. The 3rd Respondent’s managing director concluded by asserting that the Petition lacks merit and that the application and Petition dated 30th January 2025 should be dismissed with costs. 46. The court directed that the Application be canvassed by way of written submissions. The Petitioner led written submissions dated 28th April 2025 through M/s Gichigo Kamangu & Associates LLP, while the Respondents led their written submissions dated 24th March 2025 through M/s Moka Advocates. Determination 47. Having considered the Application, the Replying Adavits by the Respondents and the submissions by all the parties, the only issue for determination is whether the orders sought should be granted. 48. Conservatory orders are temporary constitutional reliefs granted to preserve the status quo pending the hearing and determination of a Petition. The threshold for granting such orders is now wellestablished, as stated in Centre for Rights Education and Awareness (CREAW) & 7 Others vs AG [2011] eKLR: “ At this stage, a party seeking a conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the Court grants the conservatory order, there is real danger that he will suer prejudice as a result of the violation or threatened violation of the Constitution”. 49. The applicant must demonstrate: (i)A prima facie case with likelihood of success; (ii) Imminent threat to constitutional rights, and (iii) that the public interest or balance of convenience favours granting the order. Prima Facie Case and Likelihood of Success 50. The Petitioner has argued that the Respondents are violating his freedom of movement under Article 39, right to property under Article 40, equality and freedom from discrimination under Article 27, and right to fair administrative action under Article 47 by requiring him to open the gate manually if he does not pay a service fee. 51. In response, the Respondents have stated that no one is denied access of the said gate. The Petitioner and his guests can enter freely, albeit without the assistance provided to members of the 1st Respondent by the 3rd Respondent. The Petitioner is simply expected to open the gate for himself. 52. At this interlocutory stage, the court is not required to make any conclusive nding on whether the Applicant’s rights have been infringed as this will only become clear after a full hearing. All that the Applicant is required to show is that he has a prima facie case and the fact that him and his family have been subjected to dierent treatment from other residents of Croton Ridge Gardens as far as accessing the estate is concerned in sucient to to demonstrate that he has a prima facie case. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18677/eng@2025-07-22 7

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Prejudice likely to be suered by the Applicant 53. As regards the prejudice that the Applicant is likely to suer if the conservatory orders are not granted, the Applicant has demonstrated the inconvenience occasioned by the restrictions imposed by the Respondents which aect his right to access the public road in the estate. Balance of Convenience 54. I will now turn to the question of the balance of convenience. From the material placed before the Court so far. I am of the considered view that this is a proper case in which I should apply the balance of convenience. In the case of Amin Suleiman v. Amboseli Resort Limited (2004)eKLR the Court observed as follows:“ A fundamental principle is that the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to be wrong.” 55. Applying the principle in the above cited case and noting that the Court will have to ascertain the issue raised by the Applicant such as the classication of the roads serving Croton Ridge Gardens, I am of the opinion that it is in the interest of justice that the order of status quo earlier issued ought to be extended pending the hearing and determination of the main suit. That means that main gate shall be opened for the Petitioner and his family members pending the hearing of the main suit. 56. Consequently, I make the following orders; a. The status quo obtaining as at the date of this order be maintained pending the hearing and determination of this suit. This means that the Respondents shall allow the Petitioner, his wife and his children as well as his visitors unrestricted access to and from Croton Ridge Gardens by opening the gate to the said estate to allow the Petitioner and his family to gain entry into the estate pending the hearing and determination of the main suit. b. The Petitioner shall ensure that the suit is xed for hearing within a period of one year failing which the orders herein issued shall automatically lapse. c. The costs of this application shall abide the outcome of the petition. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 22ND DAY OF JULY 2025. ..................................... J M ONYANGO JUDGE In the presence of: Mr. Gitau for Mr. Gichigo for the Petitioner Mr. Anyona for the Respondents Court Assistant - Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18677/eng@2025-07-22 8

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