Mwangi & another (Suing as Representatives of Westlands Public Land Restoration Pressure Group) v Park Plaza Limited & 2 others (Environment and Land Petition E020 of 2024) [2026] KEELC 3343 (KLR) (2 June 2026) (Judgment)

Mwangi & another (Suing as Representatives of Westlands Public Land Restoration Pressure Group) v Park Plaza Limited & 2 others (Environment and Land Petition E020 of 2024) [2026] KEELC 3343 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KEELC 3343 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Petition E020 of 2024 MN Kullow, J June 2, 2026 IN THE MATTER OF ARTICLES 2, 3, 10, 11, 19, 20, 22(1)(2), 62, 63, 67(1), 185 & 258 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF ARTICLES 2(5) & (6), 10, 11, 20(5), 22, 40(3), 42, 47, 62, 69 & 70 OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE FAIR ADMINISTRATIVE ACTION ACT, NO. 4 OF 2015 AND IN THE MATTER OF THE ILLEGAL ENCROACHMENT UPON & EXCISION OF PART OF THE ROAD RESERVE ALONG PUBLIC ROAD RESERVE PLOT NUMBER 209/14306 CONSOLIDATED WITH L.R. NO. 1970/IX/86 AND IN THE MATTER OF CONSTRUCTION OF A BUILDING BY A PRIVATE ENTITY ON A PUBLIC ROAD RESERVE Between John Kamau Mwangi 1st Petitioner Henry Muhumbwa 2nd Petitioner Suing as Representatives of Westlands Public Land Restoration Pressure Group and Park Plaza Limited 1st Respondent The Chief Land Registrar Nairobi 2nd Respondent The Hon. Attorney General 3rd Respondent Judgment The Petition 1.Vide the Amended Petition dated 2nd December 2024, hereinafter referred to as “the Petition”, the Petitioners sought the following orders against the Respondents:-a.A declaration that Sky Park Building owned by the Respondent and erected on Plot Number L.R. 1870/IX/167 is partly built on a public road reserve Plot Number 209/14306 consolidated with L.R. 1970/IX/86.b.An order of mandatory injunction do issue compelling the Respondent to cede the portion of land originally designated as a road reserve.c.A mandatory order of injunction do issue directing the 2nd Respondent to cancel the title for Plot Number L.R. 1870/IX/167 and rectify the register to reflect the original titles being Plot Number 209/14306 belonging to the public and held in trust by the County Government of Nairobi and Plot Number L.R. 1970/IX/86.d.Any other orders that this Honourable Court may deem fit to grant.e.Costs of the Petition. 2.The Petition avers that the Petitioners recently discovered that the Sky Park Building, erected on Plot Number L.R. 1870/IX/167 and owned by the 1st Respondent, had allegedly encroached onto a public road reserve known as Plot Number 209/14306 consolidated with L.R. 1970/IX/86. The Petitioners contend that the said road reserve constitutes public land held in trust by the County Government of Nairobi for the benefit of residents and the general public. 3.The Petitioners further aver that they brought the matter to the attention of the Member of County Assembly for Parklands, who allegedly confirmed that part of the building had indeed been erected on land originally designated as a public road reserve. According to the Petitioners, the alleged encroachment has deprived residents, road users and the general public of access to the affected road, thereby occasioning inconvenience and prejudice to the public interest. 4.The Petitioners state that despite raising complaints and issuing demands to the Respondent seeking rectification of the alleged encroachment and restoration of the affected portion of land, the Respondent has neglected and/or refused to take corrective action. 5.They maintain that the circumstances under which the disputed portion of land was allegedly excised and consolidated into private property amounted to an irregular and unlawful alienation of public land contrary to Article 62 of the Constitution of Kenya, 2010. 6.The Petition therefore avers that the continued occupation and use of the disputed portion of land by the Respondent violates constitutional provisions governing public land and unlawfully excludes the residents of Westlands and the general public from enjoying the intended public road reserve. 7.Consequently, the Petitioners seek declaratory and injunctive orders compelling restoration of the land to the public and rectification of the land register to reflect the original status of the suit property. The Response 8.In response to the Petition, the Respondent filed a Replying Affidavit sworn by Mandip Singh Amrit, a Director of the Respondent Company, opposing the Petition in its entirety. The Respondent averred that it is the lawful and registered proprietor of Plot L.R. No. 1870/IX/167, having acquired the same through a lawful purchase from the previous proprietors and annexed a copy of the title deed in support thereof. 9.The Respondent further averred that the suit property arose from an amalgamation of L.R. No. 209/14306 and L.R. No. 1870/IX/86, which amalgamation was undertaken in the year 1990, long before the Respondent acquired the property. It was contended that the suit property does not constitute a public road reserve and that even the survey plans relied upon by the Petitioners depict the two parcels as separate plots with no indication of an existing road reserve. 10.The Respondent also contended that the Petitioners had failed to demonstrate any injury, damage or denial of access suffered by the members they purported to represent. The Respondent maintained that its building had not blocked any public access road and accused the Petitioners of being busy bodies intent on frustrating the Respondent’s quiet possession and enjoyment of its legitimately acquired property through unsubstantiated allegations. 11.Lastly, the Respondent averred that the issues raised in the Petition did not disclose any constitutional controversy warranting the intervention of the Court, but rather concerned ordinary land ownership disputes. The Respondent further challenged the Petitioners’ locus standi and asserted that the Petition amounted to an abuse of the court process lacking any merit. Consequently, the Respondent urged the Court to dismiss the Petition with costs. Further Replying Affidavit 12.In further response to the Amended Petition dated 2nd December 2024, the Respondent filed a Further Replying Affidavit sworn by Mandip Singh Amrit, a Director of the 1st Respondent Company. The Respondent clarified that an earlier deposition contained in the Replying Affidavit sworn on 22nd April 2024, to the effect that the suit property arose from an amalgamation of L.R. No. 209/14306 and L.R. No. 1870/IX/86, had been made in error. The Respondent averred that the correct position is that the suit property resulted from the amalgamation of L.R. No. 1870/IX/85 and L.R. No. 1870/IX/86, both arising from F/R No. 71/716 dated 5th February 1922. 13.The Respondent further averred that L.R. No. 209/14306 and L.R. No. 1970/IX/86 bear no historical connection whatsoever to the suit property and are entirely distinct parcels of land. Consequently, the Respondent maintained that the Petitioners’ allegations linking the suit property to a public road reserve were erroneous and unfounded. Submissions 14.The Petitioners identified the following issues for determination by the Court: firstly, whether part of the suit property constitutes a road reserve and therefore public land within the meaning of Article 62(1)(h) of the Constitution; and secondly, whether the Respondents infringed upon the rights of the Petitioners and the public, particularly through the alleged violation of Article 62(4) of the Constitution, by unlawfully alienating and converting public land into private property. 15.The Petitioners contended that the existing survey maps, deed plans and the Respondent’s conflicting affidavits demonstrated that the suit property had unlawfully extended into a road reserve meant for public use. 16.In support of their submissions, the Petitioners principally relied on the case of Dina Management Limited Vs County Government of Mombasa & 5 Others [2021] KECA 503 (KLR), where the Court of Appeal held that public land reserved for public utility cannot lawfully be converted into private property without adherence to the requisite legal procedures. The Petitioners particularly relied on the Court’s holding that any alienation of public land reserved for public use, without following the law and notifying the public, is void and incapable of conferring proprietary rights capable of protection by the Court. 17.The 1st Respondent identified the following issues for determination by the Court: whether the Petition as framed raises any constitutional issues warranting the invocation of the Court’s constitutional jurisdiction; whether the suit property constitutes a public road reserve; and whether the Petitioners are entitled to the reliefs sought. 18.The 1st Respondent submitted that the dispute before Court was essentially a land ownership and survey dispute improperly disguised as a constitutional petition. It was contended that the Petitioners failed to demonstrate with precision the specific constitutional provisions allegedly violated or the manner of such violation, contrary to the principles established in constitutional litigation. 19.In support of its submissions, the 1st Respondent relied on several authorities including Anarita Karimi Njeru Vs Republic [1976-1980] KLR 1272, Mumo Matemu Vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, Madatali Chatur Vs Cabinet Secretary Ministry of Interior & 3 Others [2020] KEHC 9722 (KLR) and Harrikissoon Vs Attorney General of Trinidad and Tobago [1980] AC 265 for the proposition that constitutional petitions must plead constitutional violations with precision and should not be used as substitutes for ordinary civil disputes. 20.The 1st Respondent further relied on Dina Management Ltd Vs County Government of Mombasa & 5 Others [2023] and Munyu Maina Vs Hiram Gathiha Maina [2013] eKLR in support of the argument that it had sufficiently demonstrated the root and legality of its title to the suit property. Issues For Determination 21.Having considered the Petition, the Responses thereto and the rival submissions by the parties, the following issues arise for determination by this Court: -a.Whether Plot Number L.R. No. 1870/IX/167 or any portion thereof constitutes a public road reserve/public land and if so, whether its alienation, amalgamation and registration in favour of the 1st Respondent was lawful and constitutionalb.Whether the Petitioners are entitled to the reliefs sought in the Petition. Analysis Issue No. 1: Whether Plot Number L.R. No. 1870/IX/167 or any portion thereof constitutes a public road reserve/public land and if so, whether its alienation, amalgamation and registration in favour of the 1st Respondent was lawful and constitutional 22.The Petitioners contended that the Sky Park Building, erected on L.R. No. 1870/IX/167, encroaches onto a public road reserve known as Plot Number 209/14306 consolidated with L.R. No. 1970/IX/86. According to the Petitioners, the said road reserve constitutes public land within the meaning of Article 62(1)(h) of the Constitution, which classifies all roads and thoroughfares provided for by law as public land. 23.It was further submitted that the alleged excision and conversion of part of the road reserve into private property amounted to an unlawful alienation of public land contrary to Article 62(4) of the Constitution. 24.In support of this position, the Petitioners relied on survey maps, deed plans and the alleged inconsistencies in the Respondent’s affidavits regarding the historical origin of the suit property. Reliance was also placed on Dina Management Limited Vs County Government of Mombasa & 5 Others [2021] KECA 503 (KLR), where the Court held that public utility land cannot lawfully be converted into private property without adherence to the requisite legal procedures. 25.The 1st Respondent, however, denied that the suit property constitutes or encroaches upon a public road reserve. The Respondent maintained that it is the lawful and registered proprietor of L.R. No. 1870/IX/167, having acquired the same through a lawful process after amalgamation of distinct parcels of land. 26.Although the Respondent initially averred that the suit property arose from an amalgamation of L.R. No. 209/14306 and L.R. No. 1870/IX/86, it subsequently clarified through the Further Replying Affidavit that the earlier deposition had been made in error and that the correct position is that the suit property resulted from the amalgamation of L.R. No. 1870/IX/85 and L.R. No. 1870/IX/86, both arising from F/R No. 71/716 dated 5th February 1922. 27.The Respondent further contended that L.R. No. 209/14306 and L.R. No. 1970/IX/86 bear no historical connection to the suit property and are entirely distinct parcels. It was therefore submitted that the Petitioners had failed to place before the Court any credible evidence demonstrating that the suit property was ever designated as a public road reserve or public land. 28.The Court has carefully considered the rival positions taken by the parties together with the material placed before it. It is evident that the burden lay upon the Petitioners to establish, on a balance of probabilities, that the suit property or part thereof constituted public land reserved for public use. 29.While the Petitioners alleged that part of the suit property extends into a public road reserve, no conclusive survey report, registry index map, deed plan or evidence from the relevant public authorities was produced demonstrating that L.R. No. 1870/IX/167 was ever designated as a public road reserve or that the same unlawfully incorporated public land. Although the Respondent’s clarification regarding the historical amalgamation of the suit property exposed inconsistencies in its earlier affidavits, such inconsistency alone cannot conclusively establish that the suit property constitutes a public road reserve. 30.The Court further notes that unlike the circumstances in Dina Management Limited Vs County Government of Mombasa & 5 Others [2021] KECA 503 (KLR) where cogent evidence existed demonstrating that the impugned property had originally been reserved for public utility, the present Petition lacks sufficient technical and documentary evidence establishing the precise existence, location and extent of the alleged road reserve. 31.Further, while the Petitioners challenged the legality of the Respondent’s title on account of the alleged unlawful alienation and amalgamation of public land, they failed to place before the Court sufficient evidence demonstrating that the suit property originated from land reserved for public use or that the amalgamation and registration process was undertaken illegally, fraudulently or contrary to statute. 32.On the other hand, the Respondent placed before the Court documentary material tracing the historical origin of the suit property to the amalgamation of L.R. No. 1870/IX/85 and L.R. No. 1870/IX/86. Consequently, the Court is not persuaded that the Petitioners have established any basis upon which the Respondent’s title ought to be impeached, cancelled or the land register rectified as prayed. Issue No. 2: Whether the Petitioners are entitled to the reliefs sought 33.Having carefully considered the Petition, the affidavits on record, the rival submissions by the parties and the applicable law, the Court is not satisfied that the Petitioners have proved their case to the required standard. The Petitioners bore the burden of demonstrating that the suit property or part thereof constituted a public road reserve/public land and that the same had been unlawfully alienated and converted into private property contrary to the Constitution and the law. 34.However, as already observed, no conclusive survey evidence, registry records, deed plans or evidence from the relevant public authorities was tendered before the Court to sufficiently establish that L.R. No. 1870/IX/167 was unlawfully created out of a public road reserve or public land. 35.Further, although the Petitioners challenged the legality of the Respondent’s title and sought cancellation thereof, the Court finds that sufficient evidence was not placed before it to demonstrate fraud, illegality, procedural impropriety or unconstitutional acquisition of the suit property. 36.In the absence of cogent evidence establishing unlawful alienation of public land or infringement of constitutional provisions, the Court finds no basis upon which to grant the declaratory, injunctive and rectification orders sought in the Petition. Consequently, the Petition dated 22nd March 2024 as amended on 2nd December 2024 is hereby dismissed with costs to the 1st Respondent. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 2ND DAY OF JUNE, 2026.MOHAMMED N. KULLOWJUDGEJudgment delivered in the presence of: -Mr. Ndege for the PetitionersMr. Kihiko for 1st RespondentMr. Allan Kamau for 2nd and 3rd RespondentsPhilomena W. Court Assistant