https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3943

REPUBLIC OF KENYA IN THE ENVIRONMENT & LAND COURT AT NAIROBI ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 IN THE MATTER OF: ARTICLES 2, 2(5), 3, 10, 19, 20, 21, 22, 23, 26, 27, 28, 29, 40, 43, 47, 258 AND 259 OF THE CONSTITUTION OF KENYA, 2010 IN THE MATTER OF: ACTUAL AND THREATENED CONTRAVENTION OF THE CONSTITUTION IN THE MATTER OF: ACTUAL AND THREATENED VIOLATION OF CONSTITUTIONAL RIGHTS AND FUNDAMENTAL FREEDOMS IN THE MATTER OF: THE LAND ACT, 2012 AND THE COMMUNITY LAND ACT, 2012 IN THE MATTER OF: THE PHYSICAL AND LAND USE PLANNING ACT NO. 13 OF 2019 IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT, 2015 IN THE MATTER OF: THE GAZETTE NOTICE NO. 11792 OF 17TH AUGUST, 2012 IN THE MATTER OF: THE GAZETTE NOTICE NO. 1414 VOL. CXXV – NO.30 OF 10TH FEBRUARY, 2023 ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 1 of 65 IN THE MATTER OF: GRANT IR 149108 REGISTERED IN THE NAME OF KIBRA NUBIAN COMMUNITY LAND TRUST. BETWEEN KIBERA LINDI FRIENDS & NEIGHBOURS WELFARE ASSOCIATION (SUING THROUGH ITS CHAIRPERSON JAMES WAINAINA KIARIE) ……………………..….. 1ST PETITIONER BUKHUNGU CBO 047 (SUING THROUGH ITS CHAIRPERSON, JOHN SHIKOKOTI) ………………………..………….. 2ND PETITIONER VERSUS THE HON. ATTORNEY GENERAL ………..……… 1ST RESPONDENT CABINET SECRETARY, MINISTRY OF LANDS, PUBLIC WORKS, HOUSING AND URBAN DEVELOPMENT ………………………..…. 2ND RESPONDENT THE NATIONAL LAND COMMISSION ………… 3RD RESPONDENT NAIROBI CITY, COUNTY GOVERNMENT ...... 4TH RESPONDENT ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 2 of 65 THE CHAIRPERSON, BOARD OF TRUSTEES OF THE KIBRA NUBIAN COMMUNITY LAND TRUST ... 1ST INTERESTED PARTY THE TASKFORCE ON THE OPERATIONALIZATION OF THE RE-DEVELOPMENT & AFFORDABLE HOUSING PROJECT FOR THE NUBIAN COMMUNITY LAND TRUST …………………………….……. 2ND INTERESTED PARTY KATIBA INSTITUTE ……………………..…. 3RD INTERESTED PARTY NUBIAN RIGHT FORUM …………………. 4TH INTERESTED PARTY KENYAN NUBIAN COUNCIL OF ELDERS ……………………... 5TH INTERESTED PARTY KIBRA LAND COMMITTEE …….……….. 6TH INTERESTED PARTY JUDGEMENT 1. The Petitioners commenced this suit vide a Petition dated 29th January 2024 and amended on 17th September 2024, ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 3 of 65 alleging violations of their rights under Articles 10, 27, 40, 43 and 47 of the Constitution. 2. They contended that it is discriminatory and a violation of Article 27 of the Constitution for land measuring 288 acres under Grant IR 149108, herein referred to as the ‘suit land’, which their members have allegedly lived in for years to be allocated to the Nubian community, excluding other fourty two (42) tribes living in Kibra. Further, that their members’ constitutional rights to property under Article 40 of the Constitution are under threat of violation if the suit land is re-developed for purposes of settling Nubians thereon. 3. They also contended that their members’ developments on the suit land are in imminent danger of demolition, which is likely to occasion them huge financial losses to the tune of kshs.10 billion. Further, that they also face a threatened violation of their Right to Housing under Article 43 of the ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 4 of 65 Constitution if they are not given an alternative place to relocate to or adequately compensated to rebuild their lives. 4. The Petitioners also alleged a violation of their Constitutional rights to administrative action under Article 47 of the Constitution, contending that while their members will be the most affected by alleged planned evictions from the suit land, their objections have never been addressed by any of the Respondents, thus they have been condemned unheard, contrary to Article 10 of the Constitution. 5. They therefore sought for the following Orders: a) A declaration that the conversion of Grant IR 149108 from public land to community land and its allocation to the Kibra Nubian Community Land Trust was unlawful, unprocedural, and hence unconstitutional, null and void ab initio. b) A declaration that the Petitioners’ members have legally recognized rights of occupation and ownership to their respective portions of the 288-acre land under Grant IR 149108. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 5 of 65 c) An order that the said conversion be revoked and the notice of that conversion be gazetted. d) A declaration that the registration /allocation of the suit property in the name of the Kibra Nubian Community Land Trust, the 1st Interested Party herein, is unconstitutional, null and void. e) A declaration that the Taskforce on the operationalization of the Re-development and Affordable Housing project for the Nubian Community Land Trust, the 2nd Interested Party herein, is unconstitutionally constituted. f) An order of prohibition restraining any of the Respondents from proceeding with the planned or intended re-development of the 288-acre land parcel known as Grant IR 149108. g) A declaration that PDP No. 42 /32 /2012 /01: The proposed site for Nubian Village is unconstitutional, null and void ab initio. h) A declaration that the process which led to the declaration of Grant IR No.149108 as ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 6 of 65 community land is flawed and fraught with illegalities. i) An order revoking the Gazette Notice No. 1414 of 2023 on the appointment of the Taskforce on the Operationalization of the Redevelopment and Affordable Housing Project. j) A declaration that there is an imminent and actionable threat of contravention of the constitution and violation of the constitutional rights of members of the Petitioner to property, housing, and dignity through forceful evictions and demolition. k) An order directing the Registrar of community land to deregister land parcel number IR 149108 as community land. l) A declaration that the Petitioner’s members are entitled to humane, dignified treatment and adequate compensation and/or relocation to an alternative piece of land before the Respondents can evict them from land parcel Grant No. 149108. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 7 of 65 m) A declaration that any forceful eviction and/or demolition without relocation option is illegal, oppressive, and violates the rights of the members of the Petitioners. n) An order directing the Registrar of Land and the National Land Commission to ensure that any conversion or declaration of the suit property as community land fully considers the interest of the Petitioners’ members. o) A declaration that the purported public participation exercise by the Taskforce on the operationalization of the Redevelopment & Affordable Housing Project for the Nubian Community Land Trust, the 2nd Interested Party herein, is a mere sham for failing to give the Petitioner’s members sufficient opportunity to make their presentations. p) A declaration that the Petitioner’s members are entitled to the full enjoyment of the constitutional right to economic and social rights that are threatened with violation by the Respondents. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 8 of 65 q) An order directing the Respondents to pay the Petitioners and/or their members the sum of Kenya Shillings (Kshs.10,000,000,000/=) ten only, billion being compensation for damages, demolition, and destruction of the Petitioner’s members’ properties, houses, shops, schools, churches, structures, sources of income and livelihoods. r) Costs of the petition. s) Interests on (q) and (r) above at Court rates till payment in full. 6. The petition was supported by the affidavit and supplementary affidavit of James Wainaina Kiarie, Chairperson of the 1st Petitioner, sworn on 29th January 2024 and 17th October 2025 respectively. He averred that land in Kibera was initially classified as public/government land and that in the 1880s, the British government enlisted Nubian soldiers from Sudan to fight in the World War (1) and (11) as the King’s rifles and that they were stationed in Kibera which was then a forest. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 9 of 65 7. He claimed that from a reading of historical accounts, the British government settled ex-Sudanese Soldiers in Kibera in early 1900s, where they were given temporary ownership rights, with an understanding that upon independence, they would be granted permanent rights. However, post- independence, the government encouraged and allowed other different ethnic communities migrating into Nairobi to also settle in Kibera, thus members of the Petitioners who hail from all the fourty two (42) tribes in Kenya came to own land there. 8. He contended that the suit land registered under Grant IR 149108 and located within Lindi, Makina, part of Laini Saba, and part of Nyayo Highrise wards and overlapping between Lang’ata and Kibera constituencies was part of the Kibra Military service, which was originally 4,197 acres. 9. He averred that in August 2012, the Government of Kenya gazzetted PDP No. 42/32/2012/01 setting out a proposed site for Nubian Village, of 288 acres in Gazette Notice No. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 10 of 65 3042 and had in May, 2012, vide Gazette Notice No. 11792, notified the Public that the said PDP had been completed and invited any person who wished to make any representation in connection with or objection to send their representations/objections to the Director of Physical Planning within sixty (60) days. 10. He claimed that on diverse dates between May 2012 and December 2013, members of the Petitioners wrote various letters to the Director of Physical Planning before the said PDP was gazetted. Vide the said letters, they contended that they have been living in the area covered by the proposed PDP for years and had built structures thereon. They further stated that they were not afforded an opportunity to present their interests before the preparation of the PDP. Further, that the process was not inclusive, as it excluded certain communities that have also resided in Kibera for a considerable period. They insisted that the designation of the area as “Nubian Village” is discriminatory, given that the ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 11 of 65 area is inhabited by residents drawn from all the fourty two (42) tribes of Kenya. 11.He claimed that he personally wrote letters dated 25th September 2012 and 19th September 2013 to the 3rd Respondent and the Director of Physical Planning of the 4th Respondent with a view of pointing out his concerns over the said PDP. Further, that the 1st Petitioner also wrote to the then President of the Republic of Kenya, His Excellency Uhuru Kenyatta, complaining about the discriminatory act of allocating 288 acres of Kibera land to the Nubian Community without considering the members of the other fourty (42) tribes who have lived there since independence. 12.He alleged that the Petitioners also wrote to the joint Secretary of the 2nd Interested Party, which was appointed vide a Gazette Notice No. 1414 of 2003 by the 2nd Respondent which includes only members from the Nubian community and was charged with the assessment and proposal of the practical strategies for the re-development and construction of affordable housing on the suit land. In ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 12 of 65 addition, they also wrote to the Director of Physical Planning to register their objections to the PDP but none of the said correspondences were responded to. 13.He stated that on 2nd June 2017, the 4th Respondent allocated the suit land to the Nubian Community in Kibera to hold in trust for the members of the said community and subsequently, the government issued a community land title to the council of elders of the Nubian Community. 14. He contended that vide a public notice dated 25 th March 2023, the 4th Respondent declared the suit land a special planning area and suspended any developments in the area for not more than two (2) years from the date of the notice, a restriction he claimed made it impossible for the Petitioners to get essential services such as water, electricity, hospitals, ECDE centers, and schools. 15. He was categorical that land parcel number IR 149108 measuring 288 acres which has been allocated to the Kibra ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 13 of 65 Nubian Community Land Trust, was previously classified as public land and that the process of its conversion is flawed. 16.He contended that the 2nd Interested Party has failed to give members of other tribes adequate opportunity to make their objections and the Petitioners’ members are apprehensive that they are likely to be forcefully evicted to pave way for the planned redevelopment and building of affordable houses over the suit land, thereby violating their rights to be treated with dignity, to property, housing and fair administrative action. Further, that imminent evictions and demolition will disproportionally affect vulnerable members of the community, including women and school going children. 17. He averred that the whole process leading to the allocation of the suit land to the Nubian Community is tainted with illegalities, including failure to afford the Petitioners’ members the opportunity to be heard, beginning with the PDP to the taskforce proceedings and failure to conduct ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 14 of 65 public participation, contrary to Article 10 of the Constitution. Responses by the Respondents 18. The 1st and 2nd Respondents filed a replying affidavit sworn by Arthur Kinyanjua Mbatia, a Physical Planner and Assistant Director of Physical Planning in the Ministry of Lands, Public works, Housing and Urban Development. He acknowledged that the advisory plan Ref. No. 42/32/2012/01 was prepared by the Director of Physical Planning in 2012 pursuant to the provisions of the Physical Planning Act. Further, that the PDP was subsequently approved by the Cabinet Secretary on 8th August 2013 and was assigned an approved Development Plan No. 284. 19.He outlined the process that preceded the approval, stating that before preparation of the said PDP, a meeting was held on 9th June 2011 at the office of then Prime Minister, Rite Hon. Raila A. Odinga (now deceased). Further, that minutes of the said meeting were then forwarded to the Minister for Lands vide a letter dated 14th June 2011, then the PDP was ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 15 of 65 prepared and after completion on 29th May 2012, a notice of completion was published as required under the Physical Planning Act in Kenya Gazette Notice No. 11792 on 17th August 2012. The same notice was also published in the Daily Nation dated 4th June ,2012 and Taifa Leo newspaper of 4th June 2012. 20. He confirmed that according to a memo Ref. PPD /42/32/5 dated 6th August 2023 accompanied by a planning brief, the demised plan was submitted for approval with recommendations that the government sustains constructive engagement with the rest of the stakeholders to minimize undesirable effects of the plan approval and that all public purpose sites and utilities and land already registered under various individuals and entities be excluded from the planned area for the Nubian community. 21. He maintained that the 2nd Respondent followed due procedure thus ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 16 of 65 the petition is frivolous and ought to be dismissed. He annexed in evidence a copy of the demised plan, minutes of the meeting held at the then Prime Minister’s office, letter dated 14th June 2011, copies of gazette notices, and a copy of the memo dated 6th August 2023. He also annexed a summary of objections which he contended were raised by various stakeholders who submitted them in objection to the demised PDP and which he clarified, the Director of Physical Planning carefully analyzed and considered. 22. The 3rd Respondent filed a reply to the amended Petition. It denied allegations levelled against it in the Petition and sought for its dismissal. It contended that it is not the appointing authority of the 2nd Interested Party and that it does not supervise nor concern itself with the said party’s operations. Further, that the Petitioners cannot assert proprietary rights over the suit property as they do not own the same, and they are illegal occupants. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 17 of 65 23. On its part, the 4th Respondent filed a replying affidavit sworn by Wilfred Masinde, its Deputy Director-Development Inspections within its Urban Planning Subsector. He averred that the Petitioners failed to demonstrate with the required level and standard of particularity and specificity the manner in which the 4th Respondent has infringed upon their constitutional rights. 24. He acknowledged that the County Director of Physical Planning vide Gazette Notice No. 11792, invited members of the public who wished to make representations and/or objections, particularly to those within the larger Kibera and the suit land. He further stated that there is no evidence that members of the Petitioners raised objections in the form of letters as alleged. 25. He also conceded that the 4th Respondent issued a notice dated 25th March, 2023 declaring the suit land as a special planning area, which notice was informed by the impugned PDP, which had earlier been duly issued. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 18 of 65 Responses by the Interested Parties 26. The 1st Interested Party opposed the Petition vide the replying affidavit of its chairman, Suleiman Juma Aganas. He denied allegations levelled against the 1st Interested Party and averred that Kibra was first surveyed in 1918 and gazetted in 1919 as a military reserve as enunciated in the Carter Land Commission of 1933 report at paragraph 574. Further, that the area was allocated 4,197 acres and set-up as a military settlement zone dedicated to Nubians (ex- Sudanese soldiers) who were brought to Kenya by the British Colonialists during the First World War to serve British Imperial East Africa authorities and later the Kings African Rifles, in recognition of their distinguished service. 27. He pointed out that its members’ fathers’ participated in the first World War and upon finishing their service with the British, they were given shamba passes, which also indicated their service number, that was equivalent to what we now term as Title deeds. Further, that upon independence, the ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 19 of 65 Government started harassing the Nubians and moved them from all angles to a central position in Kibra thus they have known only Kibra as their ancestral home, thus the suit land is communal land by virtue of Article 63 of the Constitution and they are entitled to enjoy quiet and peaceful possession. 28. He confirmed that the 1st Interested Party has been issued with a title deed in support of their claim to the suit land on behalf of the Kibra Nubian community and has a legitimate expectation of protection of ownership, having received the land through due process. He pointed out that the title was issued with the knowledge and participation of the public, including the Petitioners and members of the Nubian community thus the Petitioners’ right to participation was not curtailed. 29. He sought for orders that the amended Petition be struck out, contending that it is incompetent as it is not supported by a supporting affidavit, adding that the affidavit attached is sworn on 29th January, 2024 while the amended Petition was ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 20 of 65 filed on 17th September, 2024. Further, that the Petition is not a representative suit as the Authority to Act filed is by the secretary and treasurer of the Petitioners and none from the alleged persons being represented. 30. In support of his averments, he annexed a copy of the title deed and survey plan to the suit land, photo of one of the alleged meeting attended by all communities, an extract of Nubians history prepared during the Truth, Justice and Reconciliation Commission’s (TJRC) investigations on historical injustices, and a copy of a Discharge Certificate and Shamba pass. 31. On its part, the 4th Interested Party filed a replying affidavit sworn by its Chairperson, one Shaffi Ali Hussein. His history of the suit land mirrored that of the 1st Interested Party. He claimed that on 28th November 1970, the then member of parliament for Lang’ata, Hon. Yunus Ali tabled a motion in parliament for Nubians in Kibera to be issued with title deeds. Subsequently, a resolution was passed unanimously ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 21 of 65 but it was not implemented. He reiterated that this state of affairs continued and even appeals to his Excellency President Moi did not bear fruit until 2010, when the Government allocated the Nubians the suit land. 32. He insisted that due process was followed from inception to the handing over, ending the historical injustices against the Nubians, highlighted in the Ndung’u report. He also contended that the Petitioners’ claim is unmerited as they penetrated into the suit land, yet they have no proprietorship rights. 33. The 5th Interested Party filed a replying affidavit sworn by its Chairperson, Ibrahim Said. He annexed a list containing plot numbers and their alleged respective owners as at 1934, whom he claimed were ex Nubian ex -soldiers. He averred that by 1963, between two and four generations of the Nubian dead had been buried at a communal cemetery between Salam Estate and Kibera Primary School, which is living evidence of the undisputed resting place for the ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 22 of 65 Nubian Community in Kibra. He annexed photos of the cemetery and different graves. 34. He insisted that the Nubian Community has suffered immense marginalization over the years as to their identity and land tenure until when the suit land was allocated to them. 35. The 6th Interested Party also filed a replying affidavit sworn by its Chairperson, Jamaldin Yahya. His averments in opposition mirror those of the 5th Interested Party. He explained that the 6th Interested Party was part of negotiations between the then area legislator, Prime Minister Raila Odinga (now deceased) and the then Lands Minister, Hon. James Orengo that finally found a solution, which finally led to allocation of the suit land to the Nubian Community. Further, that under Article 63 of the Constitution, the 2nd Respondent is empowered to allocate land to communities while the 3rd Respondent plays a pivotal role in addressing ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 23 of 65 historical injustices, which the Nubian Community has faced since independence. 36. He also averred that due process was adhered to, in the allocation of the suit land and that members of other tribes residing in Kibera were given adequate opportunity to give their representations regarding the allocation, thus the Petitioners’ challenge of the title to the suit land is an afterthought intended to deprive the Nubian Community of their land. 37. The 2nd and 3rd Interested Parties did not file responses. 38.The Petition was canvassed by way of written submissions. The Petitioner’s Submissions 39. On the 1st Interested Party’s objection to the propriety of the amended Petition on the basis that it is accompanied by the original affidavit in support of the initial Petition, the Petitioners submitted that a party cannot amend a sworn document. Further, that neither the Civil Procedure Rules ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 24 of 65 nor the Mutunga Rules, 2013 contain provisions on the filing of a separate affidavit supporting the amendments to a Petition. Additionally, they submitted that if the amended Petition is struck out, the Court would be violating their rights to access to justice under Article 48 of the Constitution, and contravening Article 159 (2) (d) which calls for justice to be considered without undue regard to technicalities. 40. They also submitted that they have since filed and served a supplementary affidavit sworn on 17th October, 2025 supporting the very amendments contained in the amended Petition, thereby rendering the 1st Interested Party's objection otiose. To this end, they relied on the following decisions: Gerald Iha Thoya v Chiriba Daniel Chai & another [2018] KECA 637 (KLR) and re Estate of NMM (Deceased) [2021] КЕНC 8035 (KLR). 41. Regarding the 1st Interested Party's contention that the Petition is not a representative suit as the Authority to Act ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 25 of 65 filed is by the Secretary and Treasurer of the Petitioners and none from the alleged persons being represented, they submitted that Article 22 of the Constitution has enlarged the scope of locus standi in constitutional matters to include persons or associations instituting Petitions on behalf or in the interest of others. In support of this argument, they relied on the following decisions: Republic v. Registrar of Societies & another; Kenya International Freight & Warehousing Association (Nairobi Branch) (Exparte) (Judicial Review Application E032 of 2024) [2025] КЕНС 4789 (KLR) (Judicial Review) (7 April 2025) and Sikalieh (Chairman Suing on Behalf of Karen District Association) v. National Environment Management Authority & another (Appeal 4 of 2023) [2023] KENET 477 (KLR) (Environment and Land) (1 September 2023). 42. They also submitted that meaningful public participation was not conducted by the 1st and 2nd Respondents and the 2nd Interested Party regarding the impugned PDP. They pointed ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 26 of 65 out that while the 2nd Respondent annexed a summary of objections allegedly raised to the PDP, their members’ objections do not appear. Further, that there are no remarks apparent in the summary to suggest that the supposed objections were considered. Additionally, that failure by the 2nd Interested Party to adduce any evidence of public participation is evidence that no genuine and meaningful public participation was conducted in the processes that led up to the demised PDP. They insisted that public participation is a justiciable, constitutional right rather than a procedural nicety. They urged the Court to find that the conversion of the suit property, from public to community land and its subsequent allocation to the Kibra Nubian Community Land Trust was unlawful for want of adequate public participation. 43. They argued that the suit property having been public land prior to its conversion to community land, and the Petitioners and their members having lived on the same land alongside the Nubians and built their homes and businesses on the ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 27 of 65 same, they still have a protectable constitutional right to housing under Article 43 of the Constitution and the right to be treated with dignity under Article 28 of the Constitution. To this end, they relied on the case of MituBell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae) (Petition 3 of 2018) [2021] KESC 34 (KLR) (11 January 2021). 44. They also submitted that Article 22(1) and 23(1) of the Constitution of Kenya envisages a situation whereby a person's constitutional rights are threatened with violation thus they did not have to wait for the actual violation or infringement to occur before they could approach this Court for redress or appropriate reliefs. 45. To buttress their averments, the Petitioners relied on the following decisions: Robert N. Gakuru & others v Governor Kiambu County & 3 others (2014) eKLR; British American Tobacco Kenya PLC v Cabinet ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 28 of 65 Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tabacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) (26 November 2019) and Robert N. Gakuru & others v Governor Kiambu County & 3 others (2014) eKLR, among others, which the Court has carefully considered. The Respondents’ submissions 46.The 1st to 3rd Respondents did not file submissions. 47. The 4th Respondent submitted that the Petition is incompetent for failure to meet the threshold for constitutional pleadings set out in Anarita Karimi Njeru v Republic (No. 1) [1979] KLR 154. It contended that the Petitioners’ case against it, is speculative, only has apprehension of “imminent” demolitions and “likely” evictions, and seeks sweeping declarations and compensation without identifying a specific eviction decision, demolition directive, enforcement notice, or ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 29 of 65 administrative action it addressed to them, which would be capable of a remedy. 48. It insisted that it complied with its constitutional obligation to facilitate public participation in the relevant planning processes by issuing a public notice inviting representations and objections, and by acting within its lawful planning mandate. Further, that there is no proof that the Petitioners’ members’ alleged objections were ever presented to its County Director of Physical Planning. 49. It argued that the Petitioners’ argument that their names do not appear in a “summary of objections” produced by the 1 st and 2nd Respondents is not proof of denial of an opportunity but it confirms they did not lodge objections through the prescribed channel, adding that participation is about opportunity and consideration, not guaranteed adoption. 50. It submitted that the Petitioners have not demonstrated any proprietary interest in the suit land capable of grounding the declaratory and compensatory reliefs sought against it. It ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 30 of 65 was categorical that alleged long residence and investment on public land does not by itself translate into title. It also argued that while the Petitioners in Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others (supra), claimed that they were entitled to the suit land even if they had no proprietorship documents, the said case does not confer title; it draws a distinction between proprietary rights and socio-economic protections. 51.To buttress its averments, the 4th Respondent relied on the following decisions: Diani Business Welfare Association & others v County Government of Kwale [2015] KEHC 1968 (KLR), Isaac Shivachi Mutoka & others v Office of the President & others [2020] KEHC 6918 (KLR), Kajiado Multi Transporters Sacco Limited v Governor Kajiado County & others [2019] KEHC 11040 (KLR), Adeba & 17 others v National Land Commission & 4 others; Nairobi City County (Interested Party) [2024] KEELC 5929 (KLR), Ochuodho & 9 others v Cabinet Secretary, Ministry of Lands, Public Works, Housing ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 31 of 65 and Urban Development & others [2024] KEELC 3615 (KLR); Central Mariakani Residents Association v Cabinet Secretary, Ministry of Transport, Infrastructure, Lands, Housing & Urban Development & others [2021] KEELC 2191 (KLR), and George Kimani Mbugua & others v Ministry of Roads & Attorney General [2013] KEHC 2239 (KLR), among other cases, which the Court has carefully considered. The Interested Parties submissions 52. The 1st Interested Party submitted that the amended Petition ought to be dismissed for want of a supporting affidavit since pleadings without supporting affidavits carry no evidential value. Further, that the Petitioners’ supplementary affidavit sworn on 17th October 2025 was filed without leave of the Court thus it ought to be struck out. To this end, it relied on the case of Microsoft Corporation v Mitsumi Computer Garage Ltd [2001] eKLR. Additionally, it submitted that Rule 11 of the Mutunga Rules provides that a Petition ought to be supported by an affidavit. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 32 of 65 53. It also submitted that while the Petitioners purport to bring this Petition on behalf of a wider community, they have not demonstrated compliance with Order 1 Rule 8 of the Civil Procedure Rules. To this end, it cited the case of Trusted Society of Human Rights Alliance v Attorney General & 2 Others [2012] eKLR. 54. It also argued that the title relating to the suit property is protected under Section 24(a) of the Land Registration Act and that this Court would only interfere where illegality, irrationality or procedural impropriety is demonstrated but the Petitioners did not demonstrate any fraud, illegality or procedural impropriety sufficient to impeach the title under Section 26 of the Land Registration Act. 55. It also submitted that public participation was sufficiently conducted and that the same does not require that every view be adopted. It only requires that reasonable opportunity be afforded to members of the public to express their views, ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 33 of 65 thus the Petitioners cannot invalidate a lawful process merely because their views were not adopted. 56. To buttress its averments, the 1st Interested Party relied on the following cases: Municipal Council of Mombasa v Republic & Umoja Consultants Ltd [2002] eKLR, Arthi Highway Developers Ltd v West End Butchery Ltd & Others [2015] eKLR, Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna [2013] eKLR, and Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR. 57. The 4th to 6th Interested parties filed joint submissions. On the issue of absence of a supporting affidavit, their submissions mirrored those of the 1st Interested Party, that the threshold of constitutional Petitions has not been met due to lack of a supporting affidavit. Further, that the Petitioners have not demonstrated fraud, illegality or procedural impropriety sufficient to impeach the title issued to the 1st Interested Party. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 34 of 65 58. They also submitted that the Petitioners’ constitutional property claims under Article 40 require legal title or a proprietary interest; mere occupation or expectation does not suffice. 59. On the issues of public participation, they submitted that they did not violate the Constitution as alleged by the Petitioners as members of the public were given adequate opportunity to participate in discussions leading to the issuance of the impugned PDP. Analysis and Determination 60. Upon consideration of the amended Petition, respective affidavits, annexures and rivalling submissions, the following are the issues for determination: i. Whether the constitutional threshold for a constitutional Petition has been met. ii. Whether the amended Petition is defective for want of a supporting affidavit. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 35 of 65 iii. Whether the Petitioners have the requisite locus standi to institute the Petition. iv. Whether the process leading to the preparation of PDP No. 42/32/2012/01, the conversion of Grant I.R. No. 149108 into community land and its allocation to the Kibra Nubian Community Land Trust violated the Constitution for want of public participation. v. Whether the Petitioners have established a violation or threatened violation of their rights under Articles 27, 40, 43 and 47 of the Constitution. vi. Whether the Petitioners have established grounds for nullification of the title issued to the 1st Interested Party. vii. Whether the Petitioners are entitled to the reliefs sought. As to whether the constitutional threshold for a constitutional Petition has been met. 61. The 4th Interested Party contends that the Petitioners failed to demonstrate with the required level and standard of ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 36 of 65 particularity, the manner in which it has infringed upon its constitutional rights. It points out that they attempt to premise constitutional relief on future possibilities evictions/demolitions without showing an attributable decision or conduct on its part. 62. It is trite that a Petition must be pleaded with sufficient specificity, it has to show the rights said to be infringed, as well as the basis of grievance. To this end, it was stated as follows in Anarita Karimi Njeru v Republic(supra): “We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 37 of 65 63. Further, the Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others stated thus: “Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.” 64. On perusal of the Petition and the rest of the pleadings filed herein, I note the Petitioners set out the alleged violations committed by the Respondents and Interested ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 38 of 65 Parties against them. In line with the principles set out in the Anarita Karimi case (Supra), I find that the Interested parties, Petitioners indeed set out the provisions of the Constitution which were alleged to have been contravened and manifestation of the alleged infringement. In that regard, I find that the Petition had met the constitutional threshold for a constitutional Petition and I am unable to strike it out. As to whether the amended Petition is defective for want of a supporting affidavit. 65. The Interested Parties contend that the amended Petition is defective because it was not accompanied by a fresh supporting affidavit and that the supplementary affidavit filed on 17th October 2025 is irregular as it was filed without leave of the court. 66. The Petitioners do not dispute that their original Petition was supported by an affidavit which is the same one that accompanied their amended Petition. Further, they ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 39 of 65 subsequently filed a supplementary affidavit sworn on 17th October 2025 addressing the amendments. 67. Rule 13 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 provides as follows: “11. Documents to be annexed to affidavit or petition (1) The petition filed under these rules may be supported by an affidavit. (2) If a party wishes to rely on any document, the document shall be annexed to the supporting affidavit or the petition where there is no supporting affidavit.” 68. Rule 18 of the same Rules permits amendments with leave of the court. The Rules however do not expressly require that every amended Petition be accompanied by a fresh supporting affidavit. 69. In the foregoing, I find that the Amended Petition is not defective because it was not accompanied by a fresh ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 40 of 65 supporting affidavit. I further find that the supplementary affidavit filed on 17th October 2025 is deemed to be part of the Court record and has hence regularized the said Amended Petition. I opine that the Respondents seem to be keen to rely on procedural technicalities which offend the provisions of Article 159 (2) (d) of the Constitution. iii.Whether the Petitioners have the requisite locus standi to institute the petition on behalf of the alleged residents of Kibera. 70. The Interested Parties argue that the amended Petition is a representative suit brought without compliance with Order 1 Rule 8 of the Civil Procedure Rules, thus it is defective. 71. On their part, the Petitioners do not dispute that they represent residents affected by the impugned processes leading to the allocation of the suit land to the Nubian community. They however argue that Article 22(2) of the Constitution expanded standing in constitutional litigation, ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 41 of 65 thus Order 1 Rule 8 of the Civil Procedure Act does not curtail them from filing the Petition. 72.Order 1 Rule 8 of the Civil Procedure Act provides that: “8. One person may sue or defend on behalf of all in same interest [Order 1, rule 8] (1)Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. (2)The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct. (3)Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit.” ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 42 of 65 73. Article 22 of the Constitution provides that proceedings may be instituted by a person acting in the public interest, on behalf of others, or by an association acting in the interests of its members. This provision was emphasized in HSO & 3 others v Director of Public Prosecutions & 6 others [2026] KEHC 6812 (KLR) as follows: “Article 22 confers standing upon any person alleging that a right or fundamental freedom has been denied, violated or infringed.” 74. In the foregoing, while relying on the legal provisions cited and associating myself with decision quoted, I find that the Petitioners indeed have locus to institute the Petition, which was later amended. iv. Whether the process leading to the preparation of PDP No. 42/32/2012/01, the conversion of Grant I.R. No. 149108 into community land and its allocation to the Kibra Nubian Community Land Trust violated the Constitution for want of public participation. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 43 of 65 75. The Petitioners contend that they were excluded from the process leading to the approval of the PDP, the declaration of the suit land as community land and the subsequent redevelopment plans. They alleged that they wrote several letters objecting to the impugned PDP but they were all ignored by the Respondents and the 2nd Interested Party. 76. The Respondents dispute this notion and aver that a notice of completion of the PDP was published through Gazette Notice No. 11792 of 2012, that Members of the public were invited to lodge objections within sixty (60) days, and that Newspaper notices were published. The 1st and 2nd Respondents also produced a summary of objections received and allegedly considered. They insisted that no evidence was produced showing that the Petitioners’ and their members’ objections were formally lodged through the statutory process and ignored. They argued that the Petitioners are effectively inviting the Court to equate dissatisfaction with ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 44 of 65 outcome, or alleged non-adoption of their view, with absence of public participation. 77.On conversion of public land to community land, Section 24 of the Community Land Act provides that: “(1) Public land may be converted to community land by allocation by the National Land Commission in accordance with the Land Act (Cap. 280). (2) Conversion of public land to community land under subsection (1) may be effected on a case by case basis. (3) The National Land Commission may, by an order published in the gazette identify other specific parcels to which subsection (2) shall not apply.” 78. Section 40 of the Physical and Land Use Planning Act provides the procedure for development of a PDP, which includes publication of notices in the Kenya Gazette, in at least two newspapers of national circulation and public participation. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 45 of 65 79. From a reading of the legal provisions cited, it emerges that the principle of public participation for conversion of public land to community land entails transparency, inclusivity and accountability. At this juncture, the Court is being called upon to consider whether all procedures and processes required in public participation were adhered to, to the constitutional standards in preparation of PDP No. 42/32/2012/01, and the conversion of Grant I.R. No. 149108 to community land. 80. In the case of Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR, a five (5) Judge bench of the High Court stated as follows on public participation as a constitutional imperative: “It may be tempting to ask why the law and indeed the Constitution generally imposes this duty of public participation yet the State is generally a government for and by the people. The people elect their representative and also participate in the appointment of most, if not all public officers nowadays. The answer is, however, ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 46 of 65 not very far. Our democracy contains both representative as well as participatory elements which are not mutually exclusive but supportive of one another. The support is obtained even from that singular individual. We also have no doubt that our local jurisprudence deals at length with why the Constitution and statute law have imposed the obligation of public participation in most spheres of governance and generally we take the view that it would be contrary to a person's dignity (see Article 28) to be denied this constitutional and statutory right of public participation.” 81. Further, the Supreme Court of Kenya stated as follows in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) vs Cabinet Secretary for the Ministry of Health &; 2 Others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR: ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 47 of 65 “We would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments…. Components of meaningful public participation include the following; a) clarity of the subject matter for the public to understand; b). structures and processes (medium of engagement) of participation that are clear and simple; c). opportunity for balanced influence from the public in general; d). commitment to the process; e). inclusive and effective representation; f). integrity and transparency of the process; g). capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.” 82. In this instance, the Petitioners have not disputed that they participated in the process of development of PDP. Their main contention is that their objection was not taken into account. I note the Petitioners even admitted that their ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 48 of 65 members participated in the process by lodging objections. I further note the Petitioners were claiming they were representing their members but only furnished Court with two identity cards and failed to furnish court with the identity cards of the names of the members listed therein nor the members who wrote the letters. 83. On perusal of the Registration Certificate filed by the Petitioners, I note the 1st Petitioner was registered on the 24th November, 2020 while the 2nd Petitioner’s Certificate of Registration is dated the 20th November, 2019. It is worth noting that the land in dispute measures 288 acres while it emerged from the pleadings that the whole of Kibra measures 4,196 acres. 84. Looking at the documents presented by all the parties herein, I note the process for the development of the PDP was open. Further, after gazettement in May, 2012, there was a Notice that objections were to be received in sixty (60) days. The Petitioners claim their members sent objections from May ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 49 of 65 2012. Further, I have perused the letters annexed by the Petitioners objecting to the PDP, I note some of them were written outside the sixty (60) days period. Further, there is no explanation on how the said objections were lodged. 85. From the explanation from the Respondents and Interested Parties, I find that there was indeed clarity of the subject matter for the public to understand that the process entailed development of PDP. Further, I find that since the Respondents proceeded to advertise and call for objections, there was transparency in the process. The Respondents provided summary of the objections received and to my mind I opine that there was an element of integrity of the process. 86. It is not disputed that before preparation of the PDP, there was a meeting held on 9th June, 2011 at the then Prime Minister’s Office, whose minutes were availed. Further, it is not disputed that there were minutes forwarded to the Minister for Lands vide letter dated 14th June, 2011. The Petitioners claim they have resided on the suit land hence ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 50 of 65 they should have been considered for the land. I note in the letters of objection, most of the authors were mainly seeking to be allocated land and objecting to the place being named after the Nubian Community. It is my considered view that since there were meetings held where community members attended, gazettement of the PDP, advertisement of the PDP in the national dailies, collecting of objections before the PDP was finalized, there was indeed public participation. Further, I find that the said process adhered to the law as the National Land Commission which is the government entity mandated to deal with public land was also involved. To my mind I do not find that the Petitioners were denied any information but were engaged and granted ample notice including feedback mechanism on the development of the impugned PDP. I opine that public participation does not require every view to be adopted in the outcome but so long as the views are collected considered and collated. In my view, the Petitioners had a recourse in law after the sixty (60) days period, to appeal to the National Liaison Committee if ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 51 of 65 they felt aggrieved that their objections were not taken into consideration. 87. Based on the facts as presented while associating myself with the decisions cited and applying them to the circumstances at hand, I find that there was indeed public participation in the development of the impugned PDP, I will decline to quash it and deem it as valid. v. Whether the Petitioners have established a violation or threatened violation of their rights under Articles 27, 40, 43 and 47 of the Constitution. a.Alleged violation of Article 27 of the constitution 88. Article 27 of the Constitution speaks to equality and freedom from discrimination. The Petitioners’ alleged violation of the said right is pegged on their allegation that allocating the suit land to the Nubian Community discriminates against ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 52 of 65 other ethnic communities residing in Kibera. In response, the Respondents and Interested Parties contend that the allocation was procedurally done to address longstanding historical injustices meted on the Nubian community. 89. The Court of Appeal stated as follows in Obo & 3 others v National Land Commission & 5 others [2024] KECA 232 (KLR): “In order to make a determination as to whether or not there is discrimination, it is important to appreciate the position in Minister of Finance vs. Van Heerden [2004] ZACC 3; 2004(6)SA 121 (CC); 2004 (11) BCLR 1125 (CC) (Van Heerden) para 27 that:“It is . . . incumbent on courts to scrutinise in each equality claim the situation of the complainants in society; their history and vulnerability; the history, nature and purpose of the discriminatory practice and whether it ameliorates or adds to group disadvantage in real life context, in order to determine its fairness or otherwise in the light of the values of our Constitution. In the assessment of fairness or otherwise a flexible but ‘situation- sensitive’ ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 53 of 65 approach is indispensable because of shifting patterns of hurtful discrimination and stereotypical response in our evolving democratic society.” 90. Further, the alleged discrimination in this case might have to be considered in the context of Kenya’s unique concept of historical injustices and past efforts employed to address such injustices. In this regard, the Supreme Court in Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR), stated that the concept of historical injustices is relevant in Kenya: “The need to confront and silence the ghosts of past wrongs or historical injustices is relevant in the Kenyan context. This is in light of Kenya’s history which is littered with incidences of gross violations of human rights and other atrocities that occurred during the colonial era and continued in the post- independence era. Further, victims of such abuses were never granted an opportunity to obtain redress and justice during that period. In this regard, an official report of ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 54 of 65 the Government of the Republic of Kenya, Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission (Government printer, 2003) at page 19 records as follows: “The political history and governance of the Kenyan state is a catalogue of gross human rights violations, the arrogance of power, and the commission of mind-boggling economic crimes. Constitutionalism and the rule of law, which are the central features of any political democracy that respects human rights, have been absent in Kenya’s history… Since its creation by the British in 1895, the Kenyan state has largely been a predatory and illiberal instrumentality, an ogre defined by its proclivity for the commission of gross and massive human rights violations….” 91. From the explanation of the 1st, 4th, 5th and 6th Interested Parties including the documents annexed, I note it is actually the Nubian Community within Kibra that has suffered injustice since they were moved severally before finally being granted community land. Further, it is not disputed that the Nubian Community had actually been settled in Kibra in the ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 55 of 65 early 1900s by the British Army. The Petitioners have not denied that even in the TJRC Report and Ndungu Report, they had highlighted the historical injustices the Nubian Community had actually suffered. It is my considered view that since the National Land Commission has the mandate to allocate land to vulnerable groups, there was no discrimination the Petitioners suffered when the suit land was allocated to the Nubian Community that was deemed vulnerable. In that regard while associating myself with the decisions quoted, I find that the Petitioners right to Article 27 of the Constitution was not violated. b. Alleged violation of Articles 40 of the Constitution 92. Article 40 of the Constitution provides that every person has the right, either individually or in association with others, to acquire and own property of any description; and in any part of Kenya. The Petitioners claim ownership rights arising from ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 56 of 65 long occupation and development of portions of the suit land. The Respondents and the Interested Parties contended that the Petitioners are attempting to convert occupation into ownership rights. 93. Article 40 of the Constitution protects legally recognizable proprietary interests. It is my considered view that for one to claim rights under Article 40 of the Constitution, there has to be a legal title and a mere occupation does not suffice. I note the Petitioners have no title while the 1st Interested party has one, recognized as evidence of ownership under Section 18 of the Community Land Act. 94. In the foregoing, I find that the Respondents and the Interested Parties have not violated the Petitioners rights as envisaged under Article 40 of the Constitution. c. Alleged violation of Articles 43 and 47 of the Constitution ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 57 of 65 95. Article 43 of the Constitution provides for the right to housing while Article 47 provides for the right to fair administrative Action. The Petitioners acknowledge that the suit land was public land before allocation to the Nubian Community and claim that they face a threatened violation of their Right to Housing if they are not given an alternative place to relocate to or adequately compensated to rebuild their lives. 96. They also allege a violation of their Constitutional rights to administrative action under Article 47 of the Constitution, contending that while their members will be the most affected by alleged planned evictions from the suit land, their objections have never been addressed by any of the Respondents, thus they have been condemned unheard. 97. They also contend that their members’ developments on the suit land are in imminent danger of demolition, which is likely to occasion them huge financial losses to the tune of kshs.10 billion. ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 58 of 65 98. In Mitu-Bell Welfare Society v Kenya Airports Authority & 3 others [2021] KESC 34 (KLR), the Supreme Court stated that: “The right to housing over public land crystallizes by virtue of a long period of occupation by people who have established homes and raised families on the land. This right derives from the principle of equitable access to land under article 60(1)(a) of the Constitution. Faced with an eviction on grounds of public interest, such potential evictees have a right to petition the court for protection. The protection, need not necessarily be in the form of an order restraining the State agency from evicting the occupants, given the fact that, the eviction may be entirely justifiable in the public interest. But, under article 23(3) of the Constitution, the court may craft orders aimed at protecting that right, such as compensation, the requirement of adequate notice before eviction, the observance of humane conditions during eviction (UN Guidelines), the provision of alternative land for settlement, etc.” ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 59 of 65 99. In this instance, the Petitioners claim their right to housing has been violated. The Petitioners have sought for compensation to the tune of Kshs. 10 billion without availing any valuation report nor adducing viva voce evidence to demonstrate the value of their properties and the portions they occupy out of the suit land. It is trite that even in Constitutional Petitions the burden of proof was upon the Petitioners to demonstrate the portion of land they occupy as well as the value of their property but they have failed to demonstrate it. Further, since from the objections they lodged, they were mostly claiming to be allocated land, I find that they should apply for available land from the National Land Commission instead of claiming the Nubian Community Land. Further, I find that they have not denied participating in the process of development of the PDP and their only grievance is the outcome. I also note the Petitioners have also not provided the Court with any eviction or enforcement notice served upon them. In the foregoing, I find that their ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 60 of 65 rights under Articles 43 and 47 of the Constitution have not been violated as claimed. vi. Whether the Petitioners have established grounds for nullification of the title issued to the 1st Interested Party. 100. The Petitioners seek cancellation of the title issued to the Kibra Nubian Community Land Trust. Section 26 of the Land Registration Act provides that a certificate of title may only be impeached on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or a corrupt scheme. 101. For this Court to annul the 1st Interested Party’s title, Petitioners ought to prove the elements at Section 18 (1) of the Community Land Act which provides that: ‘(1)The certificate of title issued by the Registrar upon registration, or to a purchaser of community land upon a transfer or transmission by the ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 61 of 65 proprietor community shall be considered by courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and it shall not be subject to challenge, except—(a)on grounds of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.’ 102. In the case of Dr. Joseph Arap Ngok – Vs – Justice Moijo Ole Keiwua & 5 Others, Nai. Civil Appeal No. 60 of 1997 the Court categorically declared that: “Section 23(1) of the then Registration of Titles Act (now reproduced substantially as Section 25 and 26 of the Land Registration Act) gives an absolute and indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 62 of 65 upon the titleholder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of Titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.” Emphasis Mine 103. Based on the evidence before me while relying on the legal provisions I have cited as well as associating myself with the quoted decisions, I find that the 1st Interested Party was able to prove it legally acquired the suit land through allocation from the Government of Kenya and the impugned PDP supporting the title is indeed valid as it was issued after proper public participation. I opine that the Petitioners failed to discharge their burden of proof to demonstrate that the title issued to the 1st Interested Party was given illegally, unprocedurally and through misrepresentation. 104. Further, since this is a title to a Community Land which involves a large group, it is my considered view that by ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 63 of 65 seeking to cancel the said title, it will be tantamount to violating the Nubian Community’s right to property. In the foregoing, I find that the Petitioners have not established grounds for nullification of the title issued to the 1st Interested Party. I further find that the 1st Interested Party is indeed the absolute proprietor of Land Reference Grant IR 149108 Registered in the name of Kibra Nubian Community Land Trust and will proceed to uphold its title. 105. In the foregoing, I find that the Petitioners are not entitled to the reliefs as sought. 106. In the circumstances, I find that the Petitioners have failed to prove their case on a balance of probability and will proceed to dismiss it. 107. Each party to bear their own costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JUNE, 2026 CHRISTINE OCHIENG JUDGE ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 64 of 65 In the presence of: Otieno Mudeny for Petitioners Ms Said for 1st Interested Party holding brief of Noordeen for 4th, 5th and 6th Interested Parties Ms Atieno for 4th Respondent Court Assistant: Vena ELC L CONSTITUTIONAL PETITION NO. E005 OF 2024 Judgement Page 65 of 65