https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4406

Adsite Ltd v Nairobi City County Government & another (Environment and Land Constitutional Petition E005 of 2025) [2026] KEELC 4406 (KLR) (13 July 2026) (Judgment) Neutral citation: [2026] KEELC 4406 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Constitutional Petition E005 of 2025 MN Kullow, J July 13, 2026 Between Adsite Limited Petitioner and Nairobi City County Government 1st Respondent Prosolar Company Limited 2nd Respondent Judgment 1.Vide the Petition dated 17th January 2025, the Petitioner sought the following reliefs against the Respondents:a.A declaration that the Petitioner's billboard situated along Mombasa Road, Nairobi, was lawfully erected on the road reserve managed by KeNHA;b.A declaration that the Respondents lacked any legal authority to remove, interfere with or disrupt the Petitioner's billboard in any manner;c.A declaration that the actions of the 1st and 2nd Respondents violated the Petitioner's constitutional rights;d.An award of damages for violation of constitutional rights;e.A permanent injunction restraining the Respondents, their agents or any person acting under their instructions from removing, interfering with or disrupting the Petitioner's billboard;f.Special damages of Kshs. 1,600,000 being the value of the third-party marketing contract on the subject billboard;g.Special damages of Kshs. 300,000 being the unlawful rent allegedly paid to the 2nd Respondent;h.Special damages of Kshs. 2,860,649.49 being the cost incurred in reinstating the billboard;i.General damages for the Respondents' alleged unlawful interference with the Petitioner's property rights and business operations;j.Costs of the Petition; and Such further or other relief as the Court deemed just and expedient. 2.The Petition was supported by the Supporting Affidavit sworn by Samir Shah, a director of the Petitioner, who deposed that the Petitioner is an outdoor advertising company operating multiple billboards across Kenya and that in 2018 it lawfully erected the disputed billboard on L.R. No. Nairobi/Block 93/1254 pursuant to a valid agreement with the then landowner. He averred that following the compulsory acquisition of the land for construction of the Nairobi Expressway, the billboard was relocated onto a road reserve under the control of the Kenya National Highways Authority (KeNHA), where the Petitioner continuously paid all requisite ground rent and remained fully compliant with the applicable regulatory requirements. 3.The deponent further stated that notwithstanding the relocation of the billboard onto a public road reserve, the 2nd Respondent continued demanding and collecting annual rent from the Petitioner, which the Petitioner paid solely to avoid reprisals and disruption of its business operations. He maintained that these payments were made in good faith despite the billboard no longer standing on the 2nd Respondent's property, while the Petitioner simultaneously continued paying the requisite fees to KeNHA for occupation of the road reserve. Copies of receipts, correspondence and payment records were annexed in support of these assertions. 4.It was further deposed that on 17th December 2024, officers from the 1st Respondent, acting in concert with the 2nd Respondent, visited the Petitioner's offices under the guise of official duties but refused to identify themselves before threatening to remove the billboard. According to the deponent, the officers falsely asserted that the billboard had been illegally erected and obstructed access to the 2nd Respondent's property, allegations which he described as baseless because the billboard was situated entirely on a public road reserve. He averred that the Respondents thereafter proceeded to unlawfully demolish the billboard, causing substantial financial loss and compelling the Petitioner to incur considerable expenses in reconstructing it in order to honour its contractual obligations to third parties. Photographs of the demolition and receipts evidencing the reinstatement costs were exhibited. 5.The deponent also asserted that despite the existence of a court order protecting the Petitioner's interests, the Respondents persisted in issuing threats to remove the billboard, conduct which he termed contemptuous and intended to interfere with the Petitioner's business. He contended that the Respondents' actions amounted to violations of the Petitioner's right to property under Article 40, right to fair administrative action under Article 47, and the principles embodied in the Fair Administrative Action Act, as the threats and demolition were undertaken without notice, justification or due process. He maintained that unless restrained, the Respondents' conduct would continue causing irreparable harm to the Petitioner's business, reputation and revenue. 6.Finally, the deponent averred that it was just and equitable for the Court to grant the reliefs sought in the Petition so as to safeguard the Petitioner's constitutional rights and business interests. He affirmed that the facts contained in the Supporting Affidavit were true to the best of his knowledge, information and belief. 7.On 11th November 2025, the Court directed that the Petition be disposed of by way of written submissions. Thereafter, the matter came up for mention on 5th February 2026 to confirm compliance with those directions. On that date, counsel for the 1st Respondent informed the Court that the Respondent had not yet filed its submissions and sought fourteen (14) days within which to do so. The Court granted the request and fixed the matter for further mention to confirm compliance. 8.The matter was subsequently mentioned on several occasions, the last being on 14th May 2026. At that mention, counsel for the Petitioner confirmed that the Petitioner's written submissions had been duly filed and served. However, counsel for the Respondents had still not filed any submissions despite the indulgence granted by the Court. As at the time of preparation of this judgment, no written submissions had been filed on behalf of the Respondents, and the Court has therefore proceeded to determine the Petition on the basis of the pleadings, affidavits, evidence on record, and the Petitioner's written submissions. 9.In its written submissions, the Petitioner identified five issues for determination, namely: whether it had a protectable proprietary and business interest in the billboard and the site on which it stood; whether its right to property under Article 40 had been violated; whether its rights to fair administrative action under Article 47 and fair hearing under Article 50 had been infringed; whether the Respondents unlawfully interfered with its business operations; and whether it was entitled to the reliefs sought. 10.The Petitioner submitted that the disputed billboard constituted a lawful commercial asset erected after the compulsory acquisition of the original parcel and its relocation to a road reserve managed by KeNHA, thereby attracting constitutional protection against arbitrary interference. In support of this position, reliance was placed on Dina Management Ltd -Vs- County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), Patrick Musimba -Vs- National Land Commission & 4 Others [2016] eKLR, and Alliance Media (Kenya) Ltd & Another -Vs- City Council of Nairobi [2014] eKLR. 11.On the alleged violation of Article 40 of the Constitution, the Petitioner submitted that it had lawfully occupied the road reserve with the authority of KeNHA and had continuously paid the requisite charges pursuant to Section 49(1) of the Kenya Roads Act, 2007. It argued that the Respondents' demolition of the billboard without lawful authority amounted to arbitrary deprivation of property contrary to Article 40(3) of the Constitution. 12.The Petitioner relied on Elizabeth Wambui Githinji & 29 Others -Vs- Kenya Urban Roads Authority & 4 Others [2019] eKLR, where the Court of Appeal held that property rights cannot be interfered with absent a lawful finding, and Rutongot Farm Ltd -Vs- Kenya Forest Service & 3 Others [2018] eKLR, for the proposition that lawfully acquired proprietary interests enjoy constitutional protection against arbitrary deprivation. 13.Regarding the alleged infringement of Articles 47 and 50 of the Constitution, the Petitioner submitted that the Respondents acted without issuing prior notice, providing reasons, or affording it an opportunity to be heard before demolishing the billboard. It argued that the Respondents failed to comply with Sections 4(3) and 4(4) of the Fair Administrative Action Act, 2015, thereby rendering their actions procedurally unfair and unconstitutional. 14.In support of this contention, the Petitioner relied on Judicial Service Commission -Vs- Mbalu Mutava & Another [2015] eKLR, Gregory Magara Magare -Vs- University of Nairobi & Another [2017] KEHC 7858 (KLR), David Oloo Onyango -Vs- Attorney General [1987] KECA 56 (KLR), and Kenya Human Rights Commission -Vs- Non-Governmental Organisations Co-ordination Board [2016] KEHC 5405 (KLR), all of which underscore the constitutional requirement that administrative decisions affecting rights must be lawful, reasonable and procedurally fair. 15.On the remaining issues, the Petitioner submitted that the demolition of the billboard unlawfully interfered with its advertising business, resulting in loss of revenue, disruption of contractual obligations and substantial reconstruction costs. It further argued that the 2nd Respondent's continued demand for rent over land allegedly no longer under its ownership amounted to duress, unjust enrichment and abuse of process. In that regard, reliance was placed on Madhupaper International Limited & Another -Vs- Kenya Commercial Bank Limited & 2 Others [2003] KEHC 725 (KLR). 16.The Petitioner finally urged the Court to grant the declaratory, injunctive and compensatory reliefs sought, contending that it had specifically pleaded and proved its special damages and was further entitled to general damages for violation of its constitutional rights. It cited Imanyara & 2 Others -Vs- Attorney General [2016] eKLR for the proposition that damages constitute an appropriate constitutional remedy where violations of fundamental rights have been established. Issues for Determination 17.Having considered the Petition, the responses on record, the evidence adduced, and the Petitioner's written submissions, the Court is of the view that the following issues arise for determination:I.Whether the Respondents violated the Petitioner's constitutional rights, including its rights to property and fair administrative action, by interfering with and demolishing the Petitioner's billboard.II.Whether the Petitioner is entitled to the reliefs sought. Analysis and Determination Issue No. 1: Whether the Respondents violated the Petitioner's constitutional rights, including its rights to property and fair administrative action, by interfering with and demolishing the Petitioner's billboard. 18.The Petition arises from the Petitioner's complaint that following the relocation of its billboard onto a road reserve after the compulsory acquisition of the original parcel for the construction of the Nairobi Expressway, the Respondents unlawfully interfered with the billboard, culminating in its demolition. The Petitioner contends that the impugned actions were undertaken without lawful authority and without adherence to due process, thereby violating its constitutional rights. 19.The determination of this issue turns on three questions. First, whether the Petitioner established a legally recognizable interest in the billboard and the site upon which it stood. Secondly, whether the Respondents demonstrated that the impugned administrative action was undertaken pursuant to lawful authority. Thirdly, whether the procedure leading to the impugned action complied with the requirements of the Constitution and the Fair Administrative Action Act. 20.The Petitioner relied, inter alia, on Article 40 of the Constitution. While Article 40 protects the right to property, that protection extends only to interests lawfully acquired. The Court must therefore first examine whether the evidence establishes a legally protectable interest before considering whether that interest was infringed. 21.The Petitioner exhibited receipts issued by the Kenya National Highways Authority (KeNHA) acknowledging payment of road reserve charges, correspondence relating to the relocation of the billboard following the compulsory acquisition of the original parcel, and documents indicating that the billboard continued to operate from the road reserve. Those documents demonstrate that the Petitioner maintained a commercial interest in the billboard and that payments relating to the occupation of the road reserve were received by KeNHA. 22.The occupation and use of road reserves is governed by the Kenya Roads Act, 2007. Under Sections 4 and 22, KeNHA is responsible for the management and control of national roads and road reserves, while Section 49(1) prohibits the erection or maintenance of structures on a road reserve without the written permission of the responsible roads authority. Although the Petitioner exhibited receipts evidencing payment of road reserve charges, it did not exhibit the written permission contemplated under Section 49(1). The Court is therefore unable to conclusively find that the billboard was lawfully erected solely on the basis of those receipts. Equally, the absence of the written approval does not, without more, establish that the billboard was unlawfully erected. 23.The absence of the written approval is, however, not dispositive of the present dispute. The issue before the Court is whether the administrative action complained of was undertaken in accordance with the law. Significantly, there is no evidence that KeNHA declared the billboard unlawful, revoked any permission that may have existed, issued a notice requiring its removal, or otherwise invoked the enforcement mechanisms available under the Kenya Roads Act. The record is equally silent as to whether KeNHA authorised or participated in the impugned action. In those circumstances, the Court cannot infer that the billboard had been declared an unlawful structure by the authority statutorily charged with the management of the road reserve. 24.The Court has also considered the constitutional and statutory mandate of the 1st Respondent the Constitution assigns the regulation of outdoor advertising to County Governments. That mandate, however, must be exercised harmoniously with the Kenya Roads Act where an advertising structure is situated on a national road reserve. The Respondents did not place before the Court any material demonstrating that the suit billboard stood outside a national road reserve, that KeNHA had authorised the impugned action, or that the action complained of was undertaken pursuant to any lawful inter-agency enforcement process. Likewise, although the Petition attributes the impugned action to the Respondents, no material was placed before the Court demonstrating that the 2nd Respondent possessed any statutory authority in relation to the road reserve after the compulsory acquisition of the original parcel. 25.The Court must next consider whether the impugned administrative action complied with the Constitution. Article 47 guarantees every person the right to administrative action that is lawful, reasonable and procedurally fair. Sections 4(3) and 4(4) of the Fair Administrative Action Act, 2015 require that before administrative action likely to adversely affect a person's rights or legitimate interests is taken, the affected person must be given prior notice, adequate reasons and an opportunity to be heard. In Judicial Service Commission -Vs- Mbalu Mutava & Another [2015] eKLR, the Court of Appeal observed that:“Article 47 marks an important and transformative development of administrative justice... the administrative actions of public officers, State organs and other administrative bodies are now subjected by Article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires."The import of that decision is that every administrative action must satisfy both the substantive authority conferred by law and the procedural safeguards guaranteed by the Constitution. 26.The record before the Court does not disclose any enforcement notice, notice to show cause, decision declaring the billboard unlawful, or any correspondence inviting the Petitioner to make representations before the impugned action was undertaken. Neither have the Respondents exhibited any statutory notice, enforcement order or other material demonstrating compliance with the procedure prescribed under Article 47 of the Constitution and the Fair Administrative Action Act. Even where a public authority believes that a structure has been unlawfully erected, that belief does not dispense with the obligation to observe due process. 27.Upon considering the evidence as a whole, the Court is not in a position to conclusively determine whether the billboard was lawfully erected for purposes of Article 40, given the absence of the written approval contemplated under Section 49(1) of the Kenya Roads Act. Nevertheless, the Court is satisfied that the administrative action complained of, and attributed to the Respondents, was not shown to have been undertaken in accordance with the Constitution or the Fair Administrative Action Act. Issue No. 2: Whether the Petitioner is entitled to the reliefs sought. 28.Having found that the administrative action complained of, and attributed to the Respondents, did not comply with the procedural safeguards guaranteed under Article 47 of the Constitution and the Fair Administrative Action Act, 2015, the Court must determine whether the Petitioner is entitled to the reliefs sought. 29.It is now settled that the grant of constitutional remedies is discretionary and must be guided by the nature of the violation established and the circumstances of each case. In Gitobu Imanyara & 2 Others -Vs- Attorney General [2016] eKLR, the Court of Appeal observed that constitutional remedies are intended primarily to vindicate the Constitution and protect the rights guaranteed thereunder rather than to punish a public authority. 30.The Petitioner seeks, inter alia, declaratory reliefs, a permanent injunction, special damages, general damages and costs. In view of the Court's finding that the impugned administrative action failed to meet the constitutional threshold of procedural fairness, the Court is satisfied that the Petitioner is entitled to an appropriate declaration vindicating its right to fair administrative action under Article 47 of the Constitution. 31.The Petitioner also seeks a permanent injunction restraining the Respondents from interfering with its billboard. Injunctive relief is an equitable remedy granted to prevent the repetition or continuation of unlawful conduct. In the circumstances of this case, the Court is satisfied that an order restraining the Respondents from taking administrative or enforcement action affecting the Petitioner's billboard otherwise than in accordance with the Constitution and the law is appropriate. 32.The Petitioner further claims special damages comprising Kshs. 1,600,000 allegedly lost under a third-party advertising contract, Kshs. 300,000 allegedly paid as rent to the 2nd Respondent, and Kshs. 2,860,649.49 allegedly incurred in reconstructing the billboard. The law is settled that special damages must not only be specifically pleaded but must also be strictly proved. In Hahn -Vs- Singh [1985] KLR 716, the Court of Appeal reaffirmed that principle. 33.Although the Petitioner specifically pleaded the sums claimed and produced various invoices and receipts, the Court is not satisfied that the evidence tendered establishes, to the requisite standard, the entirety of the losses claimed or demonstrates a sufficient legal nexus between those losses and the procedural violation established in this Petition. Accordingly, the claim for special damages fails. 34.The Court has equally considered the prayer for general damages for violation of constitutional rights. While the Court has found that the Petitioner's right to fair administrative action under Article 47 was infringed, an award of damages does not automatically follow every constitutional violation. As stated in Gitobu Imanyara & 2 Others -Vs- Attorney General (supra), the appropriate remedy depends on the circumstances of each case. In the present matter, the Court is satisfied that the declaratory and injunctive reliefs granted adequately vindicate the constitutional violation established. Consequently, the Court declines to award general damages. Disposition 35.In the result, judgment is hereby entered in favour of the Petitioner against the Respondents in the following terms:a.A declaration is hereby issued that the administrative action complained of in relation to the Petitioner's billboard violated Article 47 of the Constitution.b.A permanent injunction is hereby issued restraining the Respondents, their servants, agents or any person acting under their authority from interfering with or demolishing the Petitioner's billboard otherwise than in accordance with the law.c.The prayers for special damages and general damages are hereby declined.d.Each party shall bear its own costs of the Petition.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 13TH DAY OF JULY, 2026.MOHAMMED N. KULLOWJUDGEJudgement delivered in the presence of: -N/A for the PetitionerN/A for the RespondentMs. Mwangi Court Assistant