INTRODUCTION
1. The Petitioner filed a Petition dated 17th September 2025 seeking the following reliefs
a) A declaration that the allotment/transfer of the properties known as MSA BLOCK/XLVII/45, MSA/BLOCK/XLVII/65, MSA/BLOCK/XLVII/148 and MSA/BLOCK XLVII/173 into the names/ownership of the 1st and 2nd Respondent is illegal, unlawful, null and void ab initio.
b) A declaration that the facilities obtained by the 1st and 2nd Respondents through the collateralization of the properties known as MSA BLOCK/XLVII/45, MSA/BLOCK/XLVII/65, MSA/BLOCK/XLVII/148 and MSA/BLOCK XLVII/173 are illegal, unlawful, null and void ab initio.
c) A declaration that the facility of Kenya Shillings Four Hundred Million (Kshs.400,000,000/=) obtained by the 1st Respondent through collateralization of the property known as MSA/BLOCK XLVII/173 is illegal, null and void ab initio.
d) An order of certiorari do issue, quashing the decision of the 7th Respondent to allot/transfer of the properties known as MSA BLOCK/XLVII/45, MSA/BLOCK/XLVII/65, MSA/BLOCK/XLVII/148 and MSA/BLOCK XLVII/173 into the name of the 2nd Respondent.
e) An order of certiorari do issue, quashing the decision of the 7th Respondent to allot/transfer of the property known as MSA/BLOCK XLVII/173 into the names/ownership of the 1st Respondent.
f) An order of prohibition do issue against the 1st and 2nd Respondent, together with any financier and/or auctioneer from selling, auctioning, charging and/or leasing the properties known as MSA/BLOCK XLVII/45, MSA/BLOCK/XLVII/65, MSA/BLOCK/XLVII/148 and MSA/BLOCK XLVII/173.
g) Costs of the petition to the petitioner.
PETITIONERS CASE
2. The Petitioner's case is that the 8th Respondent is mandated to manage public land, including the parcels known as MSA/BLOCK XLVII/45, MSA/BLOCK XLVII/65, MSA/BLOCK XLVII/148 and MSA/BLOCK XLVII/173. He contends that the 2nd Respondent is the registered proprietor of MSA/BLOCK XLVII/45, MSA/BLOCK XLVII/65 and MSA/BLOCK XLVII/148, which are situated along the Kilindini Channel in the Liwatoni area of Mombasa. According to the Petitioner, the said properties were unlawfully acquired from public land without any lawful justification and are currently being utilized as a private seaport base.
3. The Petitioner further avers that an official search conducted in respect of MSA/BLOCK XLVII/173 established that the 1st Respondent is the registered proprietor thereof, notwithstanding his contention that the parcel forms part of public land. It is his case that no public participation preceded the disposal of the suit properties, which he asserts formed part of the land under the management of the 7th Respondent. On that basis, he contends that the transfer of the properties to the 1st and 2nd Respondents was irregular, unlawful and in contravention of the applicable legal framework.
4. The Petitioner further contends that the 6th Respondent disposed of the suit properties without first obtaining an advisory opinion or the input of the National Land Commission, as allegedly required by law. He also avers that MSA/BLOCK XLVII/45, MSA/BLOCK XLVII/65 and MSA/BLOCK XLVII/148 were charged as security for financial facilities and that, following the alleged default by the 2nd Respondent in servicing the said facilities, the properties have been scheduled for sale by public auction.
5. The Petitioner expresses apprehension that the continued alienation of public land, its use as security for financial facilities, and its subsequent disposal through realization of securities upon default pose a serious risk to public assets and are likely to prejudice the economic interests of the residents of Mombasa County and the public generally. He further fears that MSA/BLOCK XLVII/173 may be exposed to a similar risk, alleging that the 1st Respondent has similarly charged the property to secure financial facilities despite his contention that the parcel was unlawfully acquired from public land.
RESPONDENTS CASE
6. The 1st 2nd 3rd 5th and 6th Respondents opposed the Petition through their respective Replying Affidavits. Their position is that the Petitioner has failed to demonstrate, with the requisite degree of specificity, the constitutional rights alleged to have been violated or threatened with violation. They further contend that the Petitioner has not established any statutory requirement for public participation in relation to the impugned transactions. They also contend that the main petition has not been amended within the granted time and still reads as filed at Murang’a High Court, as such the court has no jurisdiction to preside over the matter. On that basis, they urge the Court to find that the Petition is devoid of merit and pray that it be struck out with costs.
7. This matter came up for directions before this Court on 28th April 2026. On that date, counsel for the Petitioner was absent, whereas learned counsel for the 1st 2nd ,3rd ,5th and 6th Respondents was present. The Court consequently directed that the Petition be canvassed by way of written submissions. As at the time of preparing this Judgment, only the written submissions filed on behalf of the 1st ,2nd ,3rd,5th and 6th Respondents were on record, the Petitioner having failed to file any submissions despite the directions issued by the Court.
1st 2nd ,3rd ,5th and 6th RESPONDENT’S SUBMISSIONS
8. Counsel for the 1st 2nd ,3rd ,5th and 6th Respondents filed submissions dated 5th June 2026 where they identified issues for determination as follows;
a) Whether the unamended Petition initially filed in Murang’a high court and later transferred to Mombasa Environment and Land Court Competent.
b) Is the supporting Affidavit to the Petition Competent
c) Whether the petition has sufficient merit to justify the remedies sought
9. On the first issue, the Respondents submit that the Petition is incompetent on the ground that it remains unamended despite the Court having granted the Petitioner leave to amend the application dated 17th September 2025. They contend that the Petitioner failed to comply with the Court's directions, consequently, the Petition is not properly before the Environment and Land Court at Mombasa. It is their position that, in the absence of the requisite amendment, jurisdiction over the matter effectively remained with the Court at Murang'a. In support of this argument, the Respondents rely on Prof. Daniel N. Mugendi v Kenyatta University & 3 Others, Civil Appeal No. 6 of 2012, as well as the celebrated decision in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd, on the centrality of jurisdiction. With regard to the second issue, the Respondents contend that the supporting affidavit is fatally defective as it appears to have been sworn by two different persons. They submit that while the averments contained therein are made by Mr. Gilbert Njoroge, learned counsel for the Petitioner, the affidavit is purportedly executed by the Petitioner, James Mwangi Macharia. According to the Respondents, this irregularity contravenes sections 4 and 5 of the Oaths and Statutory Declarations Act (Cap. 15) as well as Order 19 of the Civil Procedure Rules, 2010, thereby constituting a fundamental procedural and substantive defect incapable of being cured. On the third issue, the Respondents submit that the Petition is devoid of merit as the Petitioner has failed to demonstrate the manner in which any specific right or fundamental freedom guaranteed under the Bill of Rights has been violated or threatened with violation. They argue that although the Petition cites various provisions of the Constitution, it does so in general terms without identifying the particular constitutional rights allegedly infringed or the factual basis for such infringement. Consequently, the Respondents contend that both the Court and the parties are left to speculate as to the constitutional provisions relied upon and the nature of the alleged violations.
ANALYSIS AND DETERMINATION
10. I have carefully analyzed and considered the Petition, the Replying Affidavits thereof and the written submissions filed by the Respondents and the issues for determination is whether the Petition is merited and whether the Petitioner is entitled to the reliefs sought.
11. It is not in dispute that the Petition as filed bore the heading, “In the High Court at Murang'a (Murang'a Law Courts), Environment and Land Court Division.” According to the Courts records, that on 18th September 2025, the Court directed the Petitioner to clarify the Court which he intended to file the matter before any further directions could be issued. The Petitioner subsequently amended the application; however, no corresponding amendment was made to the Petition itself. This inconsistency in the pleadings creates uncertainty as to the forum in which the Petitioner intended the Petition to be heard. Be that as it may, the court is persuaded that the omission is in the nature of a clerical or inadvertent error rather than a defect which would go to the substance of the proceedings. Taking into consideration the provisions of Article 159(2)(d) of the Constitution, which enjoins courts to administer justice without undue regard to procedural technicalities, and the overriding objective embodied in sections 1A and 1B of the Civil Procedure Act the court is not inclined to invalidate the proceedings solely on account of the said irregularity.
12. Article 22(1) of the Constitution grants every person the right to institute legal proceedings where a right or fundamental freedom under the Bill of Rights has been denied, violated, infringed, or is under threat. This principle was affirmed in in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Application 29 of 2014) [2014]. The court stated that; Public Interest Litigation plays a transformative role in society. It allows various issues affecting the various spheres of society to be presented for litigation. This was the Constitution’s aim in enlarging locus standi in human rights and constitutional litigation. Locus standi has a close nexus to the right of access to justice. In instances where claims in the interest of the public are threatened by administrative action to the detriment of constitutional interpretation and application, the Court has discretion on a case-by-case basis, to evaluate the terms and public nature of the matter vis a vis the status of the parties before it. This discretion is drawn from the command of Article 259 (1), to interpret the Constitution in a manner that promotes its values and purposes, advances the rule of law, human rights and fundamental freedoms, permits the development of the law and contributes to good governance. Accordingly, the present petition is one that properly invokes the Court's jurisdiction under Article 22(1).
13. The ingredients of a constitutional petitions were set out in the case of Anarita Karimi Njeru V Republic (1979) eKLR as follows: -“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.”
14. A ‘detailed look at the petition before court discloses that the aforementioned requirements have not been satisfied in toto. Reasonable precision is required in framing constitutional petitions; this ensures that issues in controversy are brought into perspective and the matter is dealt with in a just manner. Whereas the Petitioner cited various constitutional provisions, he failed to specify the particular manner in which each provision was allegedly violated. At the very least, it was incumbent upon the Petitioner to identify the specific constitutional provisions alleged to have been infringed, thereby enabling the Respondents to meaningfully respond to the allegations.
15. The Petitioner alleges that the Respondent disposed of the suit Properties in absence of public participation, however apart from this assertion no evidence has been placed before court to demonstrate that public participation was a prerequisite to the transaction. While the 7th Respondent is empowered under Section 12 and 13 of the Kenya Ports Authority Act to acquire, hold and dispose of property in exercising its statutory mandate, the Petitioner has not demonstrated how the 7th Respondent demonstrated those powers in a manner that contravened the constitution, how constitutional rights were infringed or any identifiable public interest prejudiced as to warrant a finding that public participation as a requirement that was omitted.
16. The Petitioner further asserts that properties known as MSA/BLOCK XLVII/45, MSA/BLOCK XLVII/65, and MSA/BLOCK XLVII/148 were charged as security for financial facilities and, following the alleged default by the 2nd Respondent in repaying those facilities, were scheduled for sale by public auction. He expresses concern that MSA/BLOCK XLVII/173 may similarly be subjected to sale. Nevertheless, the Petitioner has not identified or demonstrated the specific provision of the Bill of Rights that has been infringed or threatened by these actions.
17. In light of the foregoing findings, I am not persuaded that the Petitioner has established a basis for the invocation of this Court's constitutional jurisdiction. The Petition falls short of the legal threshold required of a constitutional petition and is therefore unsustainable.
18. Accordingly, the Petition dated 17th September 2025 is dismissed with costs to the Respondents.
1. The Petitioner filed a Petition dated 17th September 2025 seeking the following reliefs
a) A declaration that the allotment/transfer of the properties known as MSA BLOCK/XLVII/45, MSA/BLOCK/XLVII/65, MSA/BLOCK/XLVII/148 and MSA/BLOCK XLVII/173 into the names/ownership of the 1st and 2nd Respondent is illegal, unlawful, null and void ab initio.
b) A declaration that the facilities obtained by the 1st and 2nd Respondents through the collateralization of the properties known as MSA BLOCK/XLVII/45, MSA/BLOCK/XLVII/65, MSA/BLOCK/XLVII/148 and MSA/BLOCK XLVII/173 are illegal, unlawful, null and void ab initio.
c) A declaration that the facility of Kenya Shillings Four Hundred Million (Kshs.400,000,000/=) obtained by the 1st Respondent through collateralization of the property known as MSA/BLOCK XLVII/173 is illegal, null and void ab initio.
d) An order of certiorari do issue, quashing the decision of the 7th Respondent to allot/transfer of the properties known as MSA BLOCK/XLVII/45, MSA/BLOCK/XLVII/65, MSA/BLOCK/XLVII/148 and MSA/BLOCK XLVII/173 into the name of the 2nd Respondent.
e) An order of certiorari do issue, quashing the decision of the 7th Respondent to allot/transfer of the property known as MSA/BLOCK XLVII/173 into the names/ownership of the 1st Respondent.
f) An order of prohibition do issue against the 1st and 2nd Respondent, together with any financier and/or auctioneer from selling, auctioning, charging and/or leasing the properties known as MSA/BLOCK XLVII/45, MSA/BLOCK/XLVII/65, MSA/BLOCK/XLVII/148 and MSA/BLOCK XLVII/173.
g) Costs of the petition to the petitioner.
PETITIONERS CASE
2. The Petitioner's case is that the 8th Respondent is mandated to manage public land, including the parcels known as MSA/BLOCK XLVII/45, MSA/BLOCK XLVII/65, MSA/BLOCK XLVII/148 and MSA/BLOCK XLVII/173. He contends that the 2nd Respondent is the registered proprietor of MSA/BLOCK XLVII/45, MSA/BLOCK XLVII/65 and MSA/BLOCK XLVII/148, which are situated along the Kilindini Channel in the Liwatoni area of Mombasa. According to the Petitioner, the said properties were unlawfully acquired from public land without any lawful justification and are currently being utilized as a private seaport base.
3. The Petitioner further avers that an official search conducted in respect of MSA/BLOCK XLVII/173 established that the 1st Respondent is the registered proprietor thereof, notwithstanding his contention that the parcel forms part of public land. It is his case that no public participation preceded the disposal of the suit properties, which he asserts formed part of the land under the management of the 7th Respondent. On that basis, he contends that the transfer of the properties to the 1st and 2nd Respondents was irregular, unlawful and in contravention of the applicable legal framework.
4. The Petitioner further contends that the 6th Respondent disposed of the suit properties without first obtaining an advisory opinion or the input of the National Land Commission, as allegedly required by law. He also avers that MSA/BLOCK XLVII/45, MSA/BLOCK XLVII/65 and MSA/BLOCK XLVII/148 were charged as security for financial facilities and that, following the alleged default by the 2nd Respondent in servicing the said facilities, the properties have been scheduled for sale by public auction.
5. The Petitioner expresses apprehension that the continued alienation of public land, its use as security for financial facilities, and its subsequent disposal through realization of securities upon default pose a serious risk to public assets and are likely to prejudice the economic interests of the residents of Mombasa County and the public generally. He further fears that MSA/BLOCK XLVII/173 may be exposed to a similar risk, alleging that the 1st Respondent has similarly charged the property to secure financial facilities despite his contention that the parcel was unlawfully acquired from public land.
RESPONDENTS CASE
6. The 1st 2nd 3rd 5th and 6th Respondents opposed the Petition through their respective Replying Affidavits. Their position is that the Petitioner has failed to demonstrate, with the requisite degree of specificity, the constitutional rights alleged to have been violated or threatened with violation. They further contend that the Petitioner has not established any statutory requirement for public participation in relation to the impugned transactions. They also contend that the main petition has not been amended within the granted time and still reads as filed at Murang’a High Court, as such the court has no jurisdiction to preside over the matter. On that basis, they urge the Court to find that the Petition is devoid of merit and pray that it be struck out with costs.
7. This matter came up for directions before this Court on 28th April 2026. On that date, counsel for the Petitioner was absent, whereas learned counsel for the 1st 2nd ,3rd ,5th and 6th Respondents was present. The Court consequently directed that the Petition be canvassed by way of written submissions. As at the time of preparing this Judgment, only the written submissions filed on behalf of the 1st ,2nd ,3rd,5th and 6th Respondents were on record, the Petitioner having failed to file any submissions despite the directions issued by the Court.
1st 2nd ,3rd ,5th and 6th RESPONDENT’S SUBMISSIONS
8. Counsel for the 1st 2nd ,3rd ,5th and 6th Respondents filed submissions dated 5th June 2026 where they identified issues for determination as follows;
a) Whether the unamended Petition initially filed in Murang’a high court and later transferred to Mombasa Environment and Land Court Competent.
b) Is the supporting Affidavit to the Petition Competent
c) Whether the petition has sufficient merit to justify the remedies sought
9. On the first issue, the Respondents submit that the Petition is incompetent on the ground that it remains unamended despite the Court having granted the Petitioner leave to amend the application dated 17th September 2025. They contend that the Petitioner failed to comply with the Court's directions, consequently, the Petition is not properly before the Environment and Land Court at Mombasa. It is their position that, in the absence of the requisite amendment, jurisdiction over the matter effectively remained with the Court at Murang'a. In support of this argument, the Respondents rely on Prof. Daniel N. Mugendi v Kenyatta University & 3 Others, Civil Appeal No. 6 of 2012, as well as the celebrated decision in Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd, on the centrality of jurisdiction. With regard to the second issue, the Respondents contend that the supporting affidavit is fatally defective as it appears to have been sworn by two different persons. They submit that while the averments contained therein are made by Mr. Gilbert Njoroge, learned counsel for the Petitioner, the affidavit is purportedly executed by the Petitioner, James Mwangi Macharia. According to the Respondents, this irregularity contravenes sections 4 and 5 of the Oaths and Statutory Declarations Act (Cap. 15) as well as Order 19 of the Civil Procedure Rules, 2010, thereby constituting a fundamental procedural and substantive defect incapable of being cured. On the third issue, the Respondents submit that the Petition is devoid of merit as the Petitioner has failed to demonstrate the manner in which any specific right or fundamental freedom guaranteed under the Bill of Rights has been violated or threatened with violation. They argue that although the Petition cites various provisions of the Constitution, it does so in general terms without identifying the particular constitutional rights allegedly infringed or the factual basis for such infringement. Consequently, the Respondents contend that both the Court and the parties are left to speculate as to the constitutional provisions relied upon and the nature of the alleged violations.
ANALYSIS AND DETERMINATION
10. I have carefully analyzed and considered the Petition, the Replying Affidavits thereof and the written submissions filed by the Respondents and the issues for determination is whether the Petition is merited and whether the Petitioner is entitled to the reliefs sought.
11. It is not in dispute that the Petition as filed bore the heading, “In the High Court at Murang'a (Murang'a Law Courts), Environment and Land Court Division.” According to the Courts records, that on 18th September 2025, the Court directed the Petitioner to clarify the Court which he intended to file the matter before any further directions could be issued. The Petitioner subsequently amended the application; however, no corresponding amendment was made to the Petition itself. This inconsistency in the pleadings creates uncertainty as to the forum in which the Petitioner intended the Petition to be heard. Be that as it may, the court is persuaded that the omission is in the nature of a clerical or inadvertent error rather than a defect which would go to the substance of the proceedings. Taking into consideration the provisions of Article 159(2)(d) of the Constitution, which enjoins courts to administer justice without undue regard to procedural technicalities, and the overriding objective embodied in sections 1A and 1B of the Civil Procedure Act the court is not inclined to invalidate the proceedings solely on account of the said irregularity.
12. Article 22(1) of the Constitution grants every person the right to institute legal proceedings where a right or fundamental freedom under the Bill of Rights has been denied, violated, infringed, or is under threat. This principle was affirmed in in the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others (Civil Application 29 of 2014) [2014]. The court stated that; Public Interest Litigation plays a transformative role in society. It allows various issues affecting the various spheres of society to be presented for litigation. This was the Constitution’s aim in enlarging locus standi in human rights and constitutional litigation. Locus standi has a close nexus to the right of access to justice. In instances where claims in the interest of the public are threatened by administrative action to the detriment of constitutional interpretation and application, the Court has discretion on a case-by-case basis, to evaluate the terms and public nature of the matter vis a vis the status of the parties before it. This discretion is drawn from the command of Article 259 (1), to interpret the Constitution in a manner that promotes its values and purposes, advances the rule of law, human rights and fundamental freedoms, permits the development of the law and contributes to good governance. Accordingly, the present petition is one that properly invokes the Court's jurisdiction under Article 22(1).
13. The ingredients of a constitutional petitions were set out in the case of Anarita Karimi Njeru V Republic (1979) eKLR as follows: -“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.”
14. A ‘detailed look at the petition before court discloses that the aforementioned requirements have not been satisfied in toto. Reasonable precision is required in framing constitutional petitions; this ensures that issues in controversy are brought into perspective and the matter is dealt with in a just manner. Whereas the Petitioner cited various constitutional provisions, he failed to specify the particular manner in which each provision was allegedly violated. At the very least, it was incumbent upon the Petitioner to identify the specific constitutional provisions alleged to have been infringed, thereby enabling the Respondents to meaningfully respond to the allegations.
15. The Petitioner alleges that the Respondent disposed of the suit Properties in absence of public participation, however apart from this assertion no evidence has been placed before court to demonstrate that public participation was a prerequisite to the transaction. While the 7th Respondent is empowered under Section 12 and 13 of the Kenya Ports Authority Act to acquire, hold and dispose of property in exercising its statutory mandate, the Petitioner has not demonstrated how the 7th Respondent demonstrated those powers in a manner that contravened the constitution, how constitutional rights were infringed or any identifiable public interest prejudiced as to warrant a finding that public participation as a requirement that was omitted.
16. The Petitioner further asserts that properties known as MSA/BLOCK XLVII/45, MSA/BLOCK XLVII/65, and MSA/BLOCK XLVII/148 were charged as security for financial facilities and, following the alleged default by the 2nd Respondent in repaying those facilities, were scheduled for sale by public auction. He expresses concern that MSA/BLOCK XLVII/173 may similarly be subjected to sale. Nevertheless, the Petitioner has not identified or demonstrated the specific provision of the Bill of Rights that has been infringed or threatened by these actions.
17. In light of the foregoing findings, I am not persuaded that the Petitioner has established a basis for the invocation of this Court's constitutional jurisdiction. The Petition falls short of the legal threshold required of a constitutional petition and is therefore unsustainable.
18. Accordingly, the Petition dated 17th September 2025 is dismissed with costs to the Respondents.