Center for Litigation on Environment and Governance - CLEG v State Law Office & 4 others

57(b) and (c) of the Constitution, 2010, which guarantee the right to pursue personal development, to live in dignity and respect, and to be free from neglect and abuse. h. The 1st and 2nd Respondents contravened Article 232(1) of the Constitution, 2010, on the values and principles of public service. i. The County Executive Committee Member for Lands, Planning and Housing and the Chief Officer in the Department of Lands, Planning and Housing, both of the 1st Respondent, violated Article 232(1) of the Constitution on the values and principles of public service. j. Mr. Fulgence Mwanyalo Kisomba is entitled to seek general damages from the 1st Respondent for the inconvenience caused. Orders a. An order restraining any further development on the access roads to Plot Nos. 1683 and 1693 at Ziwa La Ngombe. b. An order compelling the 2nd and 3rd Respondents to clearly demarcate and create the access roads connecting the Mombasa–Malindi Main Highway to Plot Nos. 1683 and 1693 at Ziwa La Ngombe, as established and shown in the Registry Index Map (RIM), within thirty (30) days of the Court's judgment. c. An order compelling the 1st Respondent to remove all developments and structures erected on the access roads to Plot Nos. 1683 and 1693 within ninety (90) days of the Court's judgment. d. An order awarding general damages to Mr. Fulgence Mwanyalo Kisomba as against the 1st Respondent for the inconvenience caused. e. An order compelling the Respondents to file an affidavit in this Court within one hundred and twenty (120) days of the judgment detailing compliance with prayers (ii)(a), (b) and (c). f. An order that the Respondents do bear the costs of this suit. g. Any other relief that this Honorable Court may deem just and fit to grant. Petitioner’s Case 2. The Petitioners position is that various provisions of the law pertaining his rights have been violated by the Respondents. The Petitioner asserts that the Respondents acted contrary to the national values and principles of governance under Articles 10 of the and 73 of the Constitution of Kenya by failing to uphold the rule of law, accountability, transparency and good governance. Further, his right to a clean and healthy environment under Article 42 of the Constitution of Kenya by approving developments to access road to plots No. 1683 and 1693. The right to equality and freedom from discrimination under Article 27, by refusing to resolve complaints by the petitioner; the right of access to information under Article 35; the right to acquire and own property under Article 40; the right to accessible and adequate housing under Article 43(1)(b), by failing to remove the obstructions to his plots and the right to fair administrative action under Article 47 , by The Judiciary of Kenya Doc IDENTITY: 2946845286790881552725747765 Tracking Number:OOQNTC2026 2/9

page 2 of 12

failing to act on the complaints by the Petitioner. The Petition also alleges a violation of the rights of older members of society under Article 57, maintaining that the Respondents' The Judiciary of Kenya Doc IDENTITY: 2946845286790881552725747765 Tracking Number:OOQNTC2026 3/9

page 3 of 12

failure to intervene and enforce the law denied the complainant access to and enjoyment of his property and development rights. The Petitioner therefore maintains that the Respondent’s actions and inaction amounted to a breach of their constitutional obligations and occasioned the violation of the complainant's fundamental rights and freedoms. Background 3. The Petition arises from a longstanding dispute concerning access to Plot Nos. 1683 and 1693 situated at Ziwa la Ng'ombe, Mombasa, owned by Mr. Fulgence Mwanyalo Kisomba. 4. The Petitioner states that on 26th June 2014, Mr. Kisomba lodged a complaint with the Mombasa County Land Adjudication and Settlement Officer where he sought intervention to create an access road to his properties so that he can develop them. 5. Upon conducting a site visit, the 3rd Respondent confirmed that Mr. Kisomba had not encroached onto any road reserve, consequently he requested the 1st Respondent to intervene and facilitate the creation of an access road. Mr. Kisomba also followed up with a letter dated 12th February 2015 to the 1st Respondents secretary seeking the same intervention so that he could develop his property. The 1st Respondent subsequently accused Mr. Kisomba of being the one who had encroached on the road reserve, despite the recommendation that none of his property had encroached. 6. Intervention was persistently sought by Mr. Kisomba from the County Government and other relevant public offices. The Commission on Administrative Justice (Office of the Ombudsman) also intervened by issuing several letters and reminders to the Respondents, urging them to resolve the complaint. In response, the County Government shifted responsibility to the Land Adjudication and Settlement Office, while the latter maintained, following a survey, that there were indeed encroachments on the access road and that it was the County Government's responsibility to restore access to the Petitioner's plots. 7. Numerous correspondences, investigations, meetings and recommendations over several years notwithstanding, the Respondents failed to take effective action to open the access road. A demolition action plan was prepared by the 1st Respondent for structures obstructing the road reserve, however, the proposed measures were allegedly never implemented. 8. It is the Petitioner's case that, after exhausting administrative avenues without success, Mr. Kisomba authorized the Petitioner to institute the present proceedings on his behalf. The Petition was consequently filed on the basis that the Respondents had persistently failed to discharge their constitutional and statutory mandates, thereby denying Mr. Kisomba access to and development of his properties. Respondent’s case 9. The respondents did not file any answer to the Petition Interested Partys case 10. The 2nd Interested party filed a Response to the petition dated 5th March 2026 where it states that it received a complaint from the Petitioner concerning an alleged boundary The Judiciary of Kenya Doc IDENTITY: 2946845286790881552725747765 Tracking Number:OOQNTC2026 4/9

page 4 of 12

dispute and denial of access to his property. Consequently, it commenced investigations by engaging the relevant government agencies. 11. The 2nd Respondent states that information was sought from the County Government, requested site inspection reports and clarification on the alleged encroachment, and issued several reminders after receiving no substantive response. 12. According to the 2nd Interested Party, the County Government maintained that the matter fell within the jurisdiction of the National Government and the County Government, with the Commission acting only as a facilitator. Further correspondences were made between the County Government, the District Land Adjudication and Settlement Officer and other relevant offices to establish the true boundary position and determine whether there had been any encroachment. 13. The findings of the District Land Adjudication and Settlement Office confirmed that there was no encroachment on the road reserve denying access to the Petitioner's land. 14. The 2nd Interested Party further avers that, since there existed different positions taken by the relevant authorities, a meeting was convened where intervention was sought from the 1st Respondent, the Land Adjudication Office and the Intergovernmental Relations Technical Committee so as to resolve the dispute. However, the Intergovernmental Relations Technical Committee advised that the matter constituted an individual claim against one level of government and therefore fell outside its mandate. 15. It is the 2nd Interested Party's case that, after considering the matter, it issued a formal determination on 16th January 2020 directing the County Executive Committee Member for Lands, Planning and Housing to address the dispute, having found that the complaint fell within the mandate of the 1st Respondent. Despite the determination and subsequent engagements through correspondence and meetings, the dispute remained unresolved. 16. The 2nd Interested Party therefore contends that the Respondent’s continued failure to act on the complaint and implement the Commission's determination amounted to maladministration and resulted in a denial of justice to the Petitioners. Petitioner’s Submissions. 17. The Petitioner submits that that the petition was instituted in the public interest under Articles 22 and 258 of the Constitution on behalf of Mr. Fulgence Mwanyalo Kisomba, seeking declaratory, mandatory and compensatory reliefs arising from the alleged obstruction of access roads serving Plots Nos. 1683 and 1693 situated within Ziwa la Ngombe Settlement Scheme. The Petitioner prayed for declarations that the Respondents had violated Articles 27, 40, 42, 43, 47, 57 and 232 of the Constitution, together with orders compelling the reopening and demarcation of the access roads, removal of structures erected thereon, an award of general damages and costs. 18. The Petitioner submits that since the year 2014, Mr Kisomba had persistently complained to the 1st and 3rd Respondents that developments had been approved on the The Judiciary of Kenya Doc IDENTITY: 2946845286790881552725747765 Tracking Number:OOQNTC2026 5/9

page 5 of 12

designated access roads leading to his parcels, thereby denying him access and preventing him from developing his property. It was contended that the numerous complaints were in vain because the Respondents failed to take corrective action, forcing him to lodge a complaint before the Commission on Administrative Justice, which also unsuccessfully attempted to compel the Respondents to address the matter. 19. According to the Petitioner, although the 1st Respondent acknowledged the encroachment and expressed an intention to reopen the access roads, it instead threatened the complainant and failed to implement the proposed remedial measures. The Petitioner maintained that these prolonged failures necessitated the filing of the present petition. 20. The issues for determination according to the Petitioner were whether the Respondents had violated the Petitioner's constitutional rights under Articles 27, 40, 43, 47 and 57; whether they had infringed the right to a clean and healthy environment under Article 42; whether they had breached the values and principles of public service under Article 232; whether the Petitioner was entitled to compensation; and who should bear the costs of the petition. 21. On the alleged violation of Article 27, the Petitioner argues that the Respondents had discriminated against Mr. Kisomba by failing to address his complaints despite his advanced age. As an elderly member of the society, he had been denied equal protection and equal benefit of the law through the Respondents' prolonged inaction. Reliance was placed on Dida v Debate Media Ltd & Another (Civil Appeal No. 238 of 2017), where the Court of Appeal held that Article 27 prohibits both the specified and analogous forms of discrimination. 22. The Petitioner further submits that the Respondents violated Article 40 of the Constitution by effectively depriving Mr. Kisomba of the enjoyment and use of his property. The Petitioner argues that although he remained the registered owner of the two plots, the obstruction of the access roads prevented him from developing and benefiting from his land without any lawful justification. 23. It is the Petitioners contention that the Respondents infringed Article 43(1)(b) of the Constitution by denying Mr. Kisomba access necessary for the development of his property, thereby undermining his economic and social rights, including the right to accessible and adequate housing. 24. Regarding Article 47, the Petitioner submits that the Respondents failed to accord Mr. Kisomba fair administrative action by neglecting to respond to or resolve his complaints over an eleven-year period and by failing to provide written reasons for their inaction. Reliance was placed on Suchan Investment Limited v Ministry of National Heritage & Culture & 3 Others (Civil Appeal No. 46 of 2012) [2016] KECA 729 (KLR), where the Court of Appeal held that the absence of written reasons gives rise to the presumption that an administrative decision was made without good reason. The Judiciary of Kenya Doc IDENTITY: 2946845286790881552725747765 Tracking Number:OOQNTC2026 6/9

page 6 of 12

25. The Petitioner further argues that the Respondents violated Article 57 by failing to take The Judiciary of Kenya Doc IDENTITY: 2946845286790881552725747765 Tracking Number:OOQNTC2026 7/9

page 7 of 12

measures to protect the rights of an older member of society. It was submitted that the continued denial of access to the suit properties prevented Mr. Kisomba from pursuing his personal development, earning a livelihood from his land, and living in dignity and respect, contrary to the constitutional protections afforded to elderly persons. 26. On the right to a clean and healthy environment under Article 42, the Petitioner submits that the 1st Respondent unlawfully approved or permitted developments on designated access roads within Ziwa la Ngombe Settlement Scheme, thereby obstructing public access and exposing residents to danger by impeding emergency services. Reference was made to the 1st Respondent's letter dated 30th March 2016 acknowledging that several developments had encroached upon the access roads. It was argued that these actions rendered the environment unsafe and unhealthy, contrary to Article 42 of the Constitution. 27. The Petitioner further submits that the Respondents violated Article 232 of the Constitution by failing to uphold the values and principles of public service. It is contended that despite possessing the constitutional and statutory mandate to resolve the dispute, the Respondents failed to act promptly, effectively, transparently and accountably, and disregarded the recommendations of the Commission on Administrative Justice, thereby falling short of the standards required of public officers. 28. As regards compensation, the Petitioner submits that this Court is empowered under Article 23(3) of the Constitution to grant appropriate relief, including damages for constitutional violations. The Petitioner argues that the Respondents' prolonged failure to address the complaint condemned Mr. Kisomba to financial hardship, emotional distress and deterioration of his health and relies on Robinson v Harman (1848) 1 Exch 850, Cuossens v Attorney General (1999) 1 EA 40, and Mohamed Juma v Kenya Glass Works Ltd, Civil Appeal No. 1 of 1986. 29. In conclusion, the Petitioner urged the Court to find that the Respondents' prolonged inaction violated the Constitution, the Physical and Land Use Planning Act, 2019 and the Public Officer Ethics Act, and to allow the petition by granting the declaratory, mandatory and compensatory reliefs sought together with costs. Analysis and determination 30. This court has looked at the pleadings filed, the evidence on record and the submissions filed by the Petitioner and the following issues are to be determined. a) Whether the Petitioner’s rights and fundamental freedoms were violated. b) Whether the Petitioner is entitled to the orders sought in the Petition. 31. It is the Petitioner's case that Mr. Fulgence Mwanyalo Kisomba is the registered proprietor of Plot Nos. 1683 and 1693 situated at Ziwa la Ng'ombe and intended to develop the said properties. The 1st Respondent has allegedly allowed construction of structures on the access road to the Petitioners Plots thereby denying him access to and enjoyment of his property. Mr. Kisomba has persistently made numerous complaints to the Respondents The Judiciary of Kenya Doc IDENTITY: 2946845286790881552725747765 Tracking Number:OOQNTC2026 8/9

page 8 of 12

and relevant agencies in vain as no action has been taken to restore the access road. It is the The Judiciary of Kenya Doc IDENTITY: 2946845286790881552725747765 Tracking Number:OOQNTC2026 9/9

page 9 of 12

Petitioners contention that the Respondents inaction infringed Mr. Kisomba's constitutional rights and necessitated the institution of the present Petition. 32. The Respondent on the other hand has not filed a response to the petition nor tendered any evidence in rebuttal. Consequently, the Petitioners evidence remains uncontroverted. 33. The Petitioner herein is empowered by Articles 22 and 258 of the Constitution to bring the Petition herein on behalf of Mr. Kisomba as the provisions confer upon every person the right to institute court proceedings where a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or where the Constitution has been contravened or is threatened with contravention. These provisions also permit proceedings to be instituted by a person acting on behalf of another person who cannot act in their own name or in the public interest. 34. Article 40 of the Constitution of Kenya 2010 provides thus; (1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property (a)of any description; and (b)in any part of Kenya. (2) Parliament shall not enact a law that permits the State or any person (a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or (b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specified or contemplated in Article 27(4) (3)...... 35. The rights guaranteed under Article 40 of the Constitution of Kenya 2010 encompass not only ownership rights but also right to access, use and enjoyment of one’s property without unlawful interference. Therefore, by failing to restore the access road to the Petitioners plots, the respondents have violated the rights of the Petitioner guaranteed under Article 40 of the Constitution of Kenya 2010. 36. The Supreme Court in Rutongot Farm Ltd vs. Kenya Forest Service & 3 others [2018] eKLR, expressed this position thus: “Once proprietary interest has been lawfully acquired, the guarantee to protection of the right to property under Article 40 of the Constitution is then expressed in the terms that no person shall be arbitrarily deprived of property. The same guarantee existed in Section 75 of the repealed Constitution.” 37. The record before court demonstrates that the Petitioner persistently engaged the Respondents and other public agencies through numerous complaints, investigations and correspondence seeking restoration of the access road serving Plot Nos. 1683 and 1693. Despite those efforts and the intervention of the Commission on Administrative Justice, no effective action was taken. 38. The court finds that the denial of access to the Petitioners parcel has had a ripple effect resulting to the enjoyment of other constitutional rights as pleaded in the Petition. The The Judiciary of Kenya Doc IDENTITY: 2946845286790881552725747765 Tracking Number:OOQNTC2026 10/ 9

page 10 of 12

Respondents have infringed on the Petitioners Rights to Fair Administrative Actions under Article 47 of the Constitution which guarantees expeditious, efficient, lawful, reasonable and procedurally fair administrative action. By prolonging the denial of access to his property the Respondent has impeded the Petitioners ability as an elderly member of the society to enjoy his property in a dignified manner which is protection accorded under Article 47 of the Constitution of Kenya 2010. The Respondents have further failed to uphold the Public Service principles as enshrined under Article 232 of the constitution by failing to provide public service that responsive, accountable and efficient. 39. The upshot of the foregoing is that this court finds that the petition herein has been proved on a balance of probabilities as the Petitioner has sufficiently demonstrated to court that his rights have been infringed. Consequently, the Petitioner is entitled to the Orders sought in the petition. This court therefore Orders as follows; a. A declaration is hereby issued that the 1st Respondent violated the Petitioner's rights under Articles 40, 42, 47, 57 and Article 232 of the Constitution. b. An order is hereby issued restraining any further development on the access roads serving Plot Nos. 1683 and 1693 at Ziwa la Ng'ombe. c. A mandatory order is hereby issued compelling the 2nd and 3rd Respondents, in conjunction with the 1st Respondent where necessary, to survey, demarcate and restore the lawful access roads connecting the Mombasa–Malindi Highway to Plot Nos. 1683 and 1693, as reflected in the Registry Index Map, within thirty (30) days from the date of this Judgment. d. A mandatory order is hereby issued compelling the 1st Respondent to remove all unlawful structures or developments erected on the access road reserve within ninety (90) days from the date of this Judgment, in accordance with the law. e. The Respondents shall jointly file in this Court, within one hundred and twenty (120) days from the date of this Judgment, a comprehensive compliance report, supported by affidavits and documentary evidence, setting out the steps taken to comply with Orders 2, 3 and 4 of this Judgment, including survey reports, photographs, notices issued, enforcement actions undertaken, and confirmation that the Petitioner's access to Plot Nos. 1683 and 1693 has been fully restored. f. This matter shall be mentioned before this Court upon the expiry of the one hundred and twenty (120) days for purposes of confirming compliance with this Judgment and for such further directions as the Court may deem necessary. g. The Petitioner shall have the costs of the Petition. SIGNED BY/FOR: The Judiciary of Kenya Doc IDENTITY: 2946845286790881552725747765 Tracking Number:OOQNTC2026 11/ 9

page 11 of 12

★ TH E JUDICIAR Y O F KENY A ★ HON. JUSTICE ANTONY O. OMBWAYO Mombasa Environment and Land Court Environment and Land Court Date: 2026-08-07 12:40:11 The Judiciary of Kenya Doc IDENTITY: 2946845286790881552725747765 Tracking Number:OOQNTC2026 12/ 9

page 12 of 12