Chelsea Marina Court Residents’ Association v Water Resources Authority & 5 others

AND NATIONAL ADMINISTRATION ….................................6 TH RESPONDENT JUDGMENT 1. The petitioner filed the amended petition dated 21 st August, 2024 seeking the following prayers:1. A declaration that the actions of the 1st respondent are unconstitutional and violate the petitioner’s right to own property under Article 40 of the Constitution. 2. A declaration that the actions of the respondents are unconstitutional and violate the petitioner’s right to fair administrative action under Article 47 of the Constitution. 3. A declaration that the actions of the respondents are unconstitutional and violate the petitioner’s right to housing under Article 43 (1)(b) of the Constitution. 4. A declaration that the petitioner is the registered and lawful owner of the parcel of land commonly known as Chelsea Marina Estate (LR. no. 209/13438) and that the respondents have no legal or other interests whatsoever in the said parcel of land. 5. A permanent injunction restraining the respondents, their servants, and or agents from 2 | Page JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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entering, demolishing or any other way interfering with the properties situated within the parcel of land commonly known as Chelsea Marina Estate (LR no. 209/13438). 6. The costs of this petition be provided for. 7. This honourable court be pleased to issue such further orders as it may deem just and expedient for the ends of justice. 2. The facts as pleaded in the amended petition are that on 4 th May 2024, the 1st respondent visited the suit property known as LR. no. 209/13438 commonly known as Marina estate belonging to the registered proprietors who are the members of the petitioner and erected a beacon for the purpose of demolishing the houses thereon. The petitioner pleaded that the 1st respondent alleged that the suit property is on riparian reserve which is next to Nairobi river. Further, that despite the allegations of encroachment, no notice was provided contrary to the requirements of the Land Act, and as a result, they will suffer loss caused by no fault of their own. 3. The petitioner contends that the actions of the 1 st respondent contravene their fundamental right to property and housing as enshrined in Articles 40 and 43 of the Constitution as 3 | Page JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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well as their right to fair administrative action under Article 47. Further, that the procedural missteps by the 1 st respondent are not merely a breach of the constitutional mandate but a clear violation of Section 152 B,C and E of the Land Act. 4. The amended petition was supported by the affidavit of Paskal Martin Opiyo, the chairman of the petitioner sworn on 8th May, 2024. While reiterating the contents of the amended petition, the petitioner deposed that the residents of the said estate are all bona fide purchasers of the 28 homes erected on the suit property, and that no issue has been raised regarding the legality of their title and occupation on the suit property. 5. The 1st respondent filed its replying affidavit sworn on 2 nd October, 2024 by Robinson Kimari, the sub-basin area coordinator. He deposed that following heavy rains experienced across the country in March, April and May 2024 and in line with the 1st respondent’s mandate, they identified areas that were worst affected by the floods which exercise commenced on 15th May, 2024 and continues to take place. 4 | Page JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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They denied issuing threats of demolition to the petitioner’s occupation of the suit property. 6. The 1st respondent deposed that the Water Resources Management Rules 2007 which were applicable to the petitioner at the time the leases were issued required that no person would undertake the activities listed in the sixth schedule of the rules on riparian land unless authorized by the 1st respondent in consultation with other relevant stakeholders. The 1st respondent denied visiting the suit property, and if indeed there was any visit for purposes of demarcating the extent of riparian, the extent of such encroachment would have been pointed to the petitioner through proper mechanisms. Further, that should the 1 st respondent find that the suit property has encroached on riparian reserve, due process will be followed as set out in law. In conclusion, the 1st respondent deposed that the grounds in the amended petition are speculative, ill-advised and do not disclose any cause of action against the 1 st respondent. 5 | Page JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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7. In further response Dr. Ayub Macharia, the director environmental enforcement of the 2nd respondent filed a replying affidavit sworn on 12 th November 2024. The 2nd respondent deposed that in relation to the demolitions, it does not peg riparian reserves as that is within the mandate of the 1st respondent which is the lead agency established under Section 11 of the Water Act. The 2nd respondent deposed that it was not involved in the erection of the beacons on the suit property, and if the same was done as alleged, the 1st respondent must have done the same within the confines of the law. It was further deposed that it was upon the petitioner to demonstrate that it had not encroached on the riparian reserve and convince the court to exercise discretion in granting the orders. 8. The 3rd respondent filed its replying affidavit sworn on 2 nd April, 2025 by Wilfred Masinde. He deposed that following heavy rains experienced in the country in March, April and May 2024, the national government issued a press release on 2nd May, 2024 informing the public and those residing in high-risk fragile areas to vacate immediately. That following the press release, the 2nd respondent formed four groups to 6 | Page JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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join the 1st respondent and other agencies to implement the directives. It was further deposed that the directive was to ensure the immediate vacation or mandatory evacuation of all people within 30 metres of riparian land along the Nairobi river. 9. The 3rd respondent denied that their agent visited the suit property with the intention of demolishing the suit property, and that their office was not involved in the alleged intended demolition. It was deposed that there is no evidence that its officers were involved or had the intention to demolish any development on the suit property and thus, this suit does not disclose any case against the 3rd respondent. Further, that the petitioner has not demonstrated that their rights have been infringed. 10. The 4th respondent filed its replying affidavit in support of the amended petition sworn on 16th June, 2025 by Benard Opaa, the deputy director and head of the natural resources management department. The 4 th respondent deposed that it visited the suit property on 4 th June, 2025 and observed that the suit property has an electric fence and 7 | Page JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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borders Nairobi river which connects to Nairobi dam downstream. Further, that the suit property sits on an elevated area and does not experience any flooding during heavy rains, and that the distance between the suit property and the river buffer area is estimated to be about 10 metres. Further, that while the petitioner alleges that beacons were marked on the suit property, they found no markings when they visited the same and perhaps, they were removed. 11. The 4th respondent deposed that the purported claims that the suit property sits on riparian land is disastrous and injurious to the petitioners, and that any threats of eviction must be stopped. Further, that the notice on the standard newspaper dated 29th May, 2024 served no purpose as the action was pre-determined and executed without following due process. In addition, the fact that none of the government entities including the 1 st respondent visited the suit property leaves a lot to be desired. 12. The 6th respondent filed its grounds of opposition dated 12 th February, 2026 challenging the amended petition on the following grounds:- 8 | Page JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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1. That Article 66(1) of the Constitution empowers the state to regulate the use of land in the interest of public safety, public order, public health and land use planning. 2. That pursuant to Section 12 (2)(c) of the Land Act, the allocation of public land situated along watersheds, river and stream catchment areas, public water reservoirs, lakes, beaches, fish landing areas, territorial riparian sea is reserves, expressly consequently, the petitioner and the prohibited, cannot lawfully acquire or assert ownership rights over riparian land, and any cultivation or development thereon is illegal and incapable of protection under Article 40 of the Constitution. 3. That the petitioner has failed to demonstrate on the basis of sufficient evidence, how the respondents have acted or are acting illegally, arbitrarily, or unjustly, or how any of the petitioner’s rights have been violated or are being violated so as to warrant the intervention of this honourable court. 4. That the amended petition is devoid of merit and constitutes an abuse of the process of this honourable court, as the petitioner’s rights and fundamental freedoms have not been breached in 9 | Page the manner alleged or JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER at all, OF 2024 2026. and DELIVERED

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consequently, the orders sought therein ought not to be granted. 13. The amended petition was canvassed through written submissions. The petitioner filed written submissions dated 23rd March 2026, the 2nd respondent filed its written submissions dated 7th April 2026, the 6th respondent written submissions is dated 13th April 2026, while the 3rd respondent filed its written submissions dated 7th May, 2026. The 1st respondent did not file written submissions. Be that as it may, I have considered the amended petition, the replies thereof, and the written submissions filed. In my view, the following issues are for determination:a. Whether the petitioner’s right to property has been infringed, violated and/or threatened. b. Whether the suit property or any part of it has encroached on riparian land. c. Whether the respondents violated Article 47 of the Constitution. d. Whether the petitioner is entitled to the prayers sought. 14. In summary, the petitioner is a body representing the registered proprietors of the residential units erected on L.R. 10 | P a g e JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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No. 209/13438, the suit property. The petitioner alleged that on 4th May 2024, the 1st respondent visited the suit property and erected a beacon with a view to demolishing the houses thereon on the alleged ground that the property encroaches upon a riparian reserve adjoining the Nairobi River. It is the petitioner’s case that no notice was served upon the residents before the threatened action, contrary to the Land Act and the Constitution. 15. The 1st respondent denied visiting the suit property with the intention to demolish and stated that following the heavy rains experienced in March, April and May 2024, it undertook an exercise of identifying areas affected by flooding. It further stated that, should it establish that the suit property encroaches upon a riparian reserve, the law would be followed. The 2nd respondent similarly denied involvement in the erection of the alleged beacons and stated that the demarcation of riparian reserves falls within the mandate of the 1st respondent. 16. The 3rd respondent relied upon the government directive of 2nd May 2024 concerning evacuation from high-risk and 11 | P a g e JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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fragile areas and stated that multi-agency teams had been constituted to implement the directive. It nevertheless denied that its officers had visited the suit property with the intention of demolishing the suit property. The 4 th respondent stated that it visited the suit property and observed that it is elevated, does not experience flooding during heavy rains and borders the Nairobi river. The 4th respondent estimated the distance between the suit property and the river buffer area at approximately 10 metres. It did not find the alleged beacons on the property and expressed the view that any threatened eviction ought to be stopped if due process had not been followed. 17. On the first and second issues, it is incumbent upon the petitioner to prove the alleged violations of the Constitution as regards their right to property and fair administrative action. Article 22 of the Constitution gives every person the right to institute proceedings alleging that a right has been denied, violated, infringed or threatened. That right, however, does not dispense with the obligation to establish the facts of the complaint. In Communications Commission of Kenya & 5 others v Royal Media Services 12 | P a g e JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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Ltd & 5 others [2014] KESC 53 (KLR), the supreme court held that a person invoking Article 22 must demonstrate the rights alleged to have been infringed and the basis of the grievance (See paragraph 349 of the judgement). 16. Article 40 of the Constitution protects the right to acquire and own property. The protection is, however, expressly qualified by Article 40(6), which provides that the rights under Article 40 do not extend to property that has been found to have been unlawfully acquired. The court must therefore distinguish between two propositions. First, a registered proprietor is ordinarily entitled to the protection of the law in respect of his or her registered property. Secondly, registration cannot confer private proprietary rights over land which the Constitution or statute reserves as public land. 17. Article 62 of the Constitution identifies various categories of public land, including rivers and other water bodies and land between the high and low water marks. The Land Act further regulates including riparian land falling reserves. within Courts protected have areas, consistently recognized that land constituting a riparian reserve is public 13 | P a g e JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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land and cannot ordinarily be acquired as private land. It follows that the mere production of a title document does not, without more, resolve the question whether the particular portion of land claimed falls within a constitutionally protected public reserve. The court must determine the nature and extent of the land in dispute. 18. In the present case, however, the evidence before the court as presented by the petitioner is that the 1 st respondent visited the suit property and erected beacons on the allegations that the suit property is on riparian land. The 1 st respondent denies visiting the suit property and denies erecting the alleged beacons. The 2nd and 3rd respondents similarly deny involvement in any intended demolition. More importantly, there is no evidence before the court, in the material placed before it, of a survey report, determination, coordinates, approved riparian demarcation or technical report conclusively establishing that the 28 residential houses complained of are situated within the riparian reserve. Although the affidavit of the 4 th respondent estimates the distance between the suit property and the river buffer at approximately 10 metres, it does not itself constitute a formal 14 | P a g e JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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determination by the designated authority establishing the precise extent of the riparian reserve. 19. The question whether the suit property lies within a riparian reserve is therefore not properly resolved merely by assertion. It requires appropriate technical determination. In Kimani v Chief Githurai 44 Location & 8 others [2025] KEELC 3358 (KLR), the court observed that determination of the extent and scope of a disputed riparian reserve requires intervention by the designated authority and that the extent of the riparian reserve is a fundamental matter requiring determination before consequential claims can properly be addressed. In my view, I find that it was not sufficient for the petitioner to supply copies of the titles and an image of the erected beacon. Merely showing title deeds does not mean that the suit property is not on riparian land. Instead, they would have gone ahead and obtained expert opinion and report to confirm that the suit property is not on riparian reserve. Should the 1 st respondent find that a portion of the suit property falls within the riparian reserve, the petitioner’s proprietary claim to the suit property can be challenged. 15 | P a g e JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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20. On the third issue, Article 47(1) of the Constitution guarantees every person administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 47(2) further requires that where a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person is entitled to written reasons for the action. The right to fair administrative action is therefore not confined to situations where an administrative decision has already been implemented. It is capable of protection where there is a sufficiently established threatened adverse administrative action. 21. Equally, the court must be satisfied that there was, in fact, an administrative decision or action attributable to the respondents complained against it. A constitutional remedy cannot be issued merely because a party fears that a public authority might act unlawfully in the future. The evidence before this court presents conflicting positions. The petitioner alleges that the 1st respondent visited the suit property and erected beacons for purposes of demolition. The 1st respondent expressly denies the allegation. The 2 nd and 3rd 16 | P a g e JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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respondents likewise deny involvement. There is no cogent documentary evidence before the court demonstrating that a final decision to demolish the suit had been made by any of the respondents. Neither is there evidence of a demolition order specifically directed at the suit property. Nevertheless, if the 1st respondent intends to take administrative action specifically directed at the suit property, such action must comply with Article 47 and the Fair Administrative Action Act. 22. On the fourth issue, it is my finding that the petitioner has not sufficiently proved the alleged violations of Article 40, 43 and 47 of the Constitution. There is no demonstration that there is a final decision that the suit property is on riparian reserve and must be demolished. The alleged erection of beacons and intended demolition have not been proved to the requisite standard against the respondents. Consequently, the petitioner has not established actual violations of Articles 40, 43 or 47 of the Constitution. Nevertheless, any future administrative action specifically directed at the petitioner’s property must comply with 17 | P a g e JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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Article 47, the Fair Administrative Action Act and the applicable laws. 23. From the above, I find no merit in the amended petition dated 21st August 2024, and it is hereby dismissed. Each party to bear its own costs. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 3RD DAY OF SEPTEMBER, 2026. HON. MBOGO C.G. JUDGE 03/09/2026. In the presence of:Mr. Benson Agunga – Court assistant Mr. Steve Kibenei holding brief for Dr. Kwenjera for the Petitioner Ms. Akello holding brief for Mr. Otieno for the 3rd Respondent No appearance for the rest of the Respondents 18 | P a g e JUGDMENT ELCLPET NO. E035 VIRTUALLY ON 3RD SEPTEMBER OF 2024 2026. DELIVERED

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