https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3275

Serafa Enterprises Limited v County Government of Kajiado & another (Land Case Petition E010 of 2025) [2026] KEELC 3275 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3275 (KLR) Republic of Kenya In the Environment and Land Court at Kajiado Land Case Petition E010 of 2025 MD Mwangi, J May 28, 2026 Ruling IN THE MATTER OF: ARTICLES 2(1), 2 (4), 3 (1), 10, 19, 20(1) AND (2), 22(1), 23 (1) AND (3), 24, 40, 47, 60(1), 64, 73 AND 259 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: ALLEGED CONTRAVENTION AND VIOLATIONS OF ARTICLES 10, 40, 47, 60, 64 AND 73 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: ALLEGED CONTRAVENTION AND VIOLATIONS OF SECTIONS 3, 4, AND 6 OF THE FAIR ADMINISTRATIVE ACTIONS ACT, NO. 4 OF 2015 AND IN THE MATTER OF: ALLEGED CONTRAVENTION AND VIOLATIONS OF SECTIONS 24 AND 25 OF THE LAND REGISTRATION ACT, NO. 3 OF 2012 AND IN THE MATTER OF: ALLEGED CONTRAVENTION AND VIOLATIONS OF SECTION 52 OF THE PHYSICAL AND LAND USE PLANNING ACT, 2019. Between Serafa Enterprises Limited Petitioner and The County Government of Kajiado 1st Respondent The Chief Officer, Lands, Physical Planning, Housing, Urban Development & Public Works Kajiado 2nd Respondent Ruling (In respect of the Petitioner’s Notice of Motion dated 18th July, 2025) Introduction 1.Before this court for determination is the Petitioner Notice of Motion Application dated 18 July, 2025. The Application which is brought under Articles 10, 19, 20(1) and (2), 22 (1), 23, 40, 47, 60 (1), 64, 259 of the Constitution of Kenya, 2010; Sections 13 and 19 of the Environment and Land Court Act, 2011; Rules 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 all other enabling provisions of the law seeks issuance of the following orders;i.Spentii.Spentiii.Spentiv.THAT pending the hearing and determination of this Petition, a conservatory order be and is hereby issued staying the implementation, enforcing, and/or execution of the Enforcement Notice Ref. No. CGK/ENSL/06/23 issued to the Petitioner on 27th June 2025 by the Respondents.v.THAT pending the hearing and determination of this Petition, the Respondents', either by themselves, officers, employees, servants, agents, or any other person acting under their authority and/or instructions be restrained from interfering with the Petitioner's quiet possession, use, occupation, and enjoyment of land parcels known as LOITOKITOK/ESELENKEI/1356, 1366,1370,1374, 2842, 2812, 2834, 2818, 2835, and 2854.vi.THAT pending the hearing and determination of the Petition herein, this honorable Court be pleased to issue an order of stay, staying the implementation, enforcement, and/or operationalization of the notices dated 15th May 2024, 3rd December 2024 and 11th December 2024 declaring Itituleta, Olerere, Olanti and Isinya area within Eselenkei Group Ranch as a Special Planning Area, to the extent that the same purport to suspend or interfere with the Petitioner's existing lawful occupation, use, and developments on land parcels LOITOKITOK/ESELENKEI/1356, 1359, 1370, 1374, 2842, 2812, 2834, 2818, 2826, and 2854.vii.THAT this honorable Court be pleased to issue such further or other conservatory and/or interim orders as may be necessary to preserve the subject matter of the dispute and protect the Petitioner's constitutional rights to property (Article 40), fair administrative action (Article 47), and protection from arbitrary deprivation of land rights under Articles 60 and 64 of the Constitution, pending the hearing and determination of the Petition herein.viii.THAT costs of this Application be provided for. 2.The Application is premised on the grounds on the face of the Motion is supported by the Affidavit of Sheikh Said Rageah sworn on 18 July, 2025. The Petitioner alleges that since 2022, he has lawfully possessed and occupied land parcels numbers LOITOKITOK/ESELENKEI/1370, 2842, 2812, 2834, 2818, 2826, 2854, 1356, 1359, 1366 and 1374 as its registered owner up until 27 June, 2025 when the Respondents issued and published enforcement notices dated 5, May 2024, 3 December 2024, and 11 December 2024, declaring Itituleta, Olerere, Olanti and Isinya area within Eselenkei Group Ranch as a Special Planning Area. As a result, the Petitioner was issued with an enforcement notice Ref. No. CGK/ENSL/06/23 on 27 June, 2025 demanding immediate stoppage of any activities on his land parcels, its restoration to original condition and demolition of any structures therein within 21 days from 27 June, 2025 failure to which the Respondents would commence demolition of the properties without further reference to him. According to the Respondents, developments undertaken by the Petitioners on the abovementioned land parcels violated the notices relating to special planning area. 3.Given the substantial and valuable improvements undertaken on the suit property among them erection of perimeter wall to secure the properties, drilling and development of multiple boreholes to establish reliable water source for agriculture and domestic use, and engagement in large scale livestock rearing activities, the Petitioner contends that he had legitimate expectations that his lawfully acquired private land registered in his name is not classified as public or community land nor was it subject to any claim or encumbrances. However, continuous threats by the Respondents demanding demolition of his properties have caused him undue distress, disruption and unlawfully deprived and interfered with his right to peacefully, own, use and develop his land yet its impugned notices. It is further alleged that the notices were not subjected to meaningful public participation neither was the Petitioner aware of them. 4.The Petitioner strongly opines that privately owned land cannot allegedly be repurposed, reposed, alienated nor acquired by the Respondents for conservation without consent, compensation and due processes since the aforesaid impugned notices and enforcements notices were issued without public participation and informing the affected proprietor like himself. Additionally, the notices cannot be applied retrospectivity long after acquisition of his property in 2022 yet he obtained the requisite land control board consent and lodged his executed transfer instruments for registration at the relevant land registry. 5.According to the Petitioner, the Respondents actions have directly denied, violated, infringed and threatened his fundamental rights and freedoms particularly Article 40 and 47 of the Constitution. This was actualized through when the Respondents attempted to arbitrarily deprived him his vested rights by interfering with his lawful use and enjoyment of the property without prompt and just compensation and issued unlawful and unreasonable retrospective notices. This act denied him due process and the right to be heard contrary to the right to fair administrative actions. Further, the actions demonstrate lack of rule of law, transparency, accountability and good governance in administrative actions as well as defiance of the principles of national values and principles of governance, land policy and public participation outlined on Article 10 and 60 of the Constitution and Section 4(b) of the Wildlife Conservation and Management Act (Cap. 376) and 52 of the Physical and Land Use Planning Act (Cap. 303) 6.Accordingly, the Petitioner has beseeched this court to exercise its constitutional and statutory jurisdiction and protect the right to property, due processes from threats, denial, violation and infringement by the Respondents. This is because he is hopelessly staring as a looming destruction of his lawfully acquired property, its vital water infrastructure livestock and fruits of his many years investment on the properties. Respondents’ Case 7.On behalf of the Respondents, Hamilton Parseina, the 1st Respondent County Executive Committee Member in charge of land, housing. physical planning and urban development have opposed the Application through his Replying Affidavit sworn on 8 December, 2025. It is deposed that contrary to the Petitioner allegations, the Respondents have not violated any constitutional provisions because it’s strictly issued enforcements notices are lawful, reasonable, procedurally fair and in the interests of orderly development, environmental management and protection, proper land use planning, and public safety within the county. Further, the notices were issued in accordance with their constitutional and statutory mandate. Therefore, the Petitioner is not deserving of the order sought because the suit properties are situated in an area zoned as rangeland within a lawfully declared and gazetted special planning area based on Section 52 of the Physical and Land Use Planning Act (Cap. 303) and not within a residential area. 8.The Respondents asserts that as at the time the properties titles were obtained in 19 October,2022, the Kajiado County Spatial Plan 2019 to 2029, which existed as at this time had already declared the location of the suit properties as zoned areas. Accordingly, Petitioner assertions that he acquired the suit properties after execution of various transfer instruments and issuance of land control board consent have consequently been contested by the Respondents who insists that the Petitioner never acquired good titles for the suit properties. This is because they were obtained without observing and adhering to the zoning laws and regulations. 9.The Respondents contends that if this court issues interim orders injuncting them from undertaking their constitutional and statutory functions, the doctrine of separations of powers and county assembly powers shall be undermined yet the Petitioner has not demonstrated any violations. Further, the issue of whether public participation was conducted in the formulation of the Kajiado County Spatial Plan 2019 to 2029 is only ascertainable once this matter is conclusively determined and not at the interlocutory stage. It is avowed that in compliance with Section 111 of the County Governments Act (Cap. 265) which mandates each county government to prepare a ten-year spatial plan, the Respondents declared and gazetted Itituleta, Olerere, Olanti and Isinya area within Eselenkei Group Ranch a special planning area on 5 May 2024. 10.The Respondent’s asserts that contrary to the Petitioners allegation, they lawfully conducted public participation and complied with its principles as evident in public notices inviting all members of the public to give their representations and comments on the proposed plan. Additionally, quantitative and qualitative public participation was conducted in Kajiado North, Kajiado South, Kajiado central, Kajiado East and Kajiado West sub county by circulating questionnaire to be filled by the resident and give their views. Thus, the Respondents maintains they lawfully issued enforcement notice CGK/ENSL/06/23 to the Petitioner requiring he demolishes, alters ,discontinues any building, works, construction , use or conduct of any activities on the suit properties because he carried out borehole drilling, land re-parceling , excavating and soil activities on a zoned area without development permission, requisite approvals and in contravention of the land use based on based on Section 72 and Physical and Land Use Planning Act (Cap. 303). 11.It is the Respondents case that it never commenced destruction of the Petitioner property, infrastructure or livestock nor has the Petitioner proved how his right to the lawful use of his private property outlined in Article 40 of the Constitution has arbitrarily been deprived or interfered. Premised on the foregoing, the court is implored to dismiss the Application with costs because the Petitioner has not demonstrated any violation nor justification of interim orders. 12. Determination 13.The Petitioner challenges the declaration by the County Government of Kajiado of Itituleta, Olerere, Olanti and Isinya area within Eselenkei Group Ranch as a special planning area and the subsequent enforcement notice requiring him within 21 days to stop activities on the suit property, restore the land to its original condition and demolish the buildings erected thereon in spite of his absolute title. He seeks a declaration that the notices establishing the special planning area are unconstitutional, unlawful, null and void and that they contravene articles 10, 40, 47, 60(1) and 64 of the Constitution. 14.The complaint by the Petitioner herein on the unconstitutionality of the declaration of the special planning area over the Eselenkei area of Kajiado County by the County Government of Kajiado is one of the core issues in the ELCLPET E001 of 2024, where the Honourable Chief Justice has empaneled a bench of three Judges to handle that petition. 15.As part of proper case management, and to avoid the possibility of contradictory decisions, this court will stay any further proceedings in this and other related matters awaiting the outcome of ELCLPET E001 of 2024. The interim orders which had already been issued in this matter on 18th July 2025 for purposes of preservation of the suit properties shall in the meantime remain in force awaiting further directions, dependent on the outcome of ELCLPET E001 of 2024. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 28TH DAY OF MAY,__ 2026.M.D. MWANGIJUDGEIn the virtual presence of:Mr. Omondi h/b for Mr. Khalif for the Petitioner/ApplicantN/A by the RespondentsCourt Assistant: Alex M.D. MWANGIJUDGE