CHELSEA MARINA COURT RESIDENTS’ ASSOCIATION V WATER RESOURCES AUTHORITY & 5 OTHERS
ENVIRONMENT AND LAND PETITION NO. E035 OF 2024 [2026] KEELC 5386 (KLR)
BEFORE: HON. MR. JUSTICE CHARLES GITONGA MBOGO
DELIVERED: 3RD SEPTEMBER 2026
BACKGROUND
The Environment and Land Court at Nairobi dismissed a constitutional petition brought by the registered proprietors of 28 residential units at Chelsea Marina Estate along the Nairobi River, who had sought orders declaring their ownership secure and permanently restraining any demolition of their homes.
The petitioner, an association representing the registered proprietors of 28 homes on L.R. No. 209/13438, known as Chelsea Marina Estate, filed an amended petition dated 21st August 2024. It pleaded that on 4th May 2024, the Water Resources Authority the 1st Respondent visited the property and erected a beacon signalling an intention to demolish the houses, on the allegation that the estate encroached on the riparian reserve of the Nairobi River.
The petitioner argued that no notice had been given beforehand, contrary to Sections 152B, 152C and 152E of the Land Act, and that this threatened their rights to property, housing, and fair administrative action under Articles 40, 43 and 47 of the Constitution. The petitioners asked the Court to declare the respondents’ conduct unconstitutional, confirm the residents as the lawful owners with no competing interest held by any respondent, and permanently restrain any entry, demolition, or interference with their homes. The petition was supported by an affidavit from Paskal Martin Opiyo, the association’s chairman, who deposed that the residents were all bona fide purchasers whose titles had never been questioned.
The Water Resources Authority, through its sub-basin area coordinator Robinson Kimari, denied visiting the property with any intention to demolish, explaining that they had instead been mapping areas affected by the heavy rains of March to May 2024 from 15th May 2024 onward, and stated that due process would be followed if the property was later found to encroach on the reserve.
NEMA, through its director of environmental enforcement Dr. Ayub Macharia, distanced itself entirely, stating that pegging riparian reserves is the Water Resources Authority’s mandate under Section 11 of the Water Act. The County Government of Nairobi, through Wilfred Masinde, pointed to a national government press release of 2nd May 2024 directing the evacuation of residents within 30 metres of riparian land, but denied that its own officers had visited the property intending to demolish it.
Notably, the National Land Commission, through Benard Opaa, the deputy director for natural resources management deposed that its own site visit on 4th June 2025 found the property elevated, electric-fenced, not prone to flooding and roughly 10 metres from the river buffer, with no beacon present and took the view that any threatened eviction ought to be stopped if due process had not been followed. The Cabinet Secretary of Interior, the 6th Respondent, filed grounds of opposition dated 12th February 2026, arguing that Article 66(1) of the Constitution empowers the State to regulate land use in the public interest, and that Section 12(2)(c) of the Land Act expressly prohibits the allocation of riparian reserves, meaning no lawful private claim could arise over such land regardless of title.
Issues in the Case
The Court identified four issues for determination including; whether the petitioner’s right to property had been infringed, violated or threatened?; whether the suit property, or any part thereof, had encroached on riparian land?; whether the respondents had violated the petitioner’s right to fair administrative action under Article 47?; and whether the petitioner was entitled to the declarations and injunction it sought?
Analysis
On the first two issues, the Court reiterated, relying on Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] KESC 53 (KLR), that a party invoking Article 22 of the Constitution must go beyond the bare right to sue and actually establish the facts underlying the alleged violation. The Court noted that Article 40 protection is expressly qualified by Article 40(6), which excludes property unlawfully acquired, and must be read alongside Article 62, which classifies rivers and other water bodies as public land. The court thus held that a registered title does not by itself resolve whether a particular strip of land falls within a constitutionally protected riparian reserve and that that is a distinct factual question requiring its own determination.
The Court further found the evidentiary picture thin on both sides. The Water Resources Authority, NEMA and the County Government all denied any intention or action to demolish, while the petitioner’s own evidence consisted only of an allegation that a beacon had been erected. Crucially, no party, including the respondents, had placed before the court any survey report, coordinates, approved riparian demarcation, or technical determination conclusively fixing the boundary of the reserve. Even the National Land Commission’s estimate that the property sat about 10 metres from the river buffer did not amount to a formal determination by the authority actually mandated to make that call.
Citing Kimani v Chief Githurai 44 Location & 8 Others [2025] KEELC 3358 (KLR), the Court held that fixing the extent of a disputed riparian reserve requires a proper technical determination by the designated authority before any consequential proprietary claim can be resolved and that it was not enough for the petitioner to produce title documents and a photograph of an alleged beacon since expert opinion and a technical report were needed to show conclusively that the property was not on riparian land.
On the third issue, the Court accepted that Article 47 can protect against a sufficiently established threatened administrative action. Given the flat denials from the Water Resources Authority, NEMA and the County Government, and the absence of any documentary evidence of a final decision to demolish, the Court found the alleged threat had not been proved to the required standard. It nonetheless made clear that any future administrative action specifically directed at the property would still have to comply with Article 47 and the Fair Administrative Action Act.
Because neither a conclusive finding of encroachment nor a final decision to demolish had been established, the Court held on the fourth issue that the petitioner was not entitled to the declarations, the ownership order, or the permanent injunction it sought.
Conclusion
The petition was dismissed, with each party bearing its own costs. This should not be read as a ruling against the residents on the substance of the dispute. The Court made no finding that Chelsea Marina Estate encroached on riparian land and no demolition order exists against the property. What the residents failed to do was discharge the burden the Constitution places on a party alleging a violation including that title deeds and a photograph of an alleged beacon were not in themselves sufficient proof that the property lies outside the reserve, just as the respondents’ bare denials were not proof that it lies inside it.
The question of where the boundary actually falls remains technically undetermined. The Court was also careful to preserve the residents’ position going forward, confirming that any future enforcement action against the property will still have to comply with due process, Article 47, and the Fair Administrative Action Act.
It is indeed noteworthy that a registered title protects against competing claims from other private parties, but on its own, will not settle a riparian dispute in court, in either direction. Owners facing a similar threat should be well advised to commission their own survey and technical evidence proactively so that if the question of encroachment ever comes before a court, they arrive with the technical proof this judgment makes clear is required, rather than relying on title alone.