Impartiality Matters: A Key Lesson from Mabonga v Agricultural Finance Corporation

Introduction

In the recent decision of Mabonga v Agricultural Finance Corporation [2025] KEELRC 2851 (KLR), the Employment and Labour Relations Court (ELRC) delivered a reminder that fairness in disciplinary hearings is not just about valid reasons for dismissal — it is equally about how the process is conducted.

The Facts in Brief

• The claimant (an employee of Agricultural Finance Corporation (“AFC”)) was dismissed for alleged negligence and misconduct.
• During the investigation, one member of the disciplinary panel had already participated in the investigation — for example, by extracting data from the employee’s computer.
• That same person then sat on the disciplinary hearing panel and questioned the employee.
• Although the employer had substantive grounds for dismissal, the ELRC found the termination to be procedurally unfair because the investigation + adjudication roles were merged.

Why This Matters

1. Impartiality is a core component of procedural fairness.
The court emphasised that allowing an investigator to sit on the disciplinary panel undermines the independence and neutrality required of the decision-maker. A fair hearing is not only about giving the employee a chance to respond; it’s also about who hears the evidence and how.

2. Valid reasons do not cure procedural defects.
Here, AFC had credible allegations of negligence and misconduct, but the ELRC held that the flawed process rendered the dismissal unfair. Thus, even if the wheels of misconduct are turning, the fairness of the journey counts.

3. Structural separation of roles matters.
For employers (both public and private), this case is a signal: make sure that the person who investigates alleged misconduct is not the same person who sits in judgment of it. Investigative, prosecutorial and adjudicatory roles should be distinct to preserve fairness and confidence in the outcome.

Practical Take-aways for Employers and HR Teams

• Review your disciplinary policies and panel-structures to ensure that the investigation team is separate from the hearing panel.
• At the hearing, ensure the decision-maker did not have prior direct involvement in evidence-gathering or investigations.
• Document the independence of the disciplinary panel: show that members were not involved in the investigation, that they approached the hearing impartially, and that the employee had a fair opportunity to respond.
• Train hearing panels and HR practitioners on the risk of perceived bias — it is enough for an employee to reasonably think that the adjudicator has been involved in the investigation.

Broader Implications

The decision aligns with broader labour jurisprudence in Kenya and internationally: the right to a fair hearing inherently includes the right to an honest and impartial decision-maker. Its application in the workplace context reinforces employer accountability beyond the substantive merits of misconduct.

Conclusion

Mabonga v Agricultural Finance Corporation is more than another dismissal case — it is a practical blueprint for integrity in disciplinary systems. If the process lacks impartiality, the best of substantive reasons may fail. For HR leaders, legal advisers, and employment practitioners, it’s a timely reminder: fair process is non-negotiable.

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

 

Filing a Claim for any amount below KSh 1,000,000 in Kenya

1. Jurisdiction

A claim of KSh 100,000 falls within the Small Claims Court’s jurisdiction.

Court	Monetary Jurisdiction
Small Claims Court	Up to KSh 1,000,000

➡️ Therefore, your case should be filed in the Small Claims Court located within the area where:

• The defendant resides or carries on business, or
• The loan transaction occurred (see Section 15 of the Civil Procedure Act).

2. Required Documents

To file your claim, you’ll need:

• Statement of Claim (instead of a plaint, used in the Small Claims Court).
• Verifying affidavit (confirming the truth of your claim).
• List of documents and witnesses.
• Demand letter (and proof of delivery).
• Loan agreement or evidence of the loan (e.g., M-Pesa statements, bank records, or acknowledgment of debt).

Filing is done online via the Judiciary e-filing system: https://efiling.court.go.ke

3. Process Overview

1. Send a demand letter to the borrower requesting repayment within 7–14 days.
2. File the claim in the Small Claims Court through the e-filing portal.
3. Serve the claim on the defendant after court acceptance.
4. Defendant’s response: they must appear or file a response within 15 days.
5. Hearing: Small Claims Court hearings are usually fast-tracked (concluded within 60 days).
6. Judgment: If the court finds in your favor, it will order the defendant to pay KSh 100,000, plus interest and costs.

4. Enforcement

If the defendant still does not pay after judgment, you may enforce it through:

• Warrants of attachment and sale (auctioning property), or
• Garnishee orders (to recover money from their bank or employer).

 

5. Costs and Interest

The court may also award:

• Interest on KSh 100,000 (as per the agreement or court rate of ~12% p.a.), and
• Costs of the suit (usually modest in Small Claims matters).

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

Desertion constitutes employee-initiated termination: The case of Mumali v Blink Studio Limited [2025] KEELRC 2112 (KLR)

1. Facts of the Case

The Claimant, Mr. Mumali, was employed by the Respondent, Blink Studio Limited, under a contract of employment governed by the Employment Act, 2007.

At some point during the subsistence of his employment, the Claimant stopped reporting to work and failed to communicate with the Respondent regarding his absence. The Respondent made attempts to reach out to him, but the Claimant did not provide any explanation or indication of his intention to resume duty.

Subsequently, the Respondent issued a one-month notice of termination, citing the Claimant’s absence without leave and lack of communication, which the Respondent considered to be desertion and therefore a breach of contract.

The Claimant later filed a claim at the Employment and Labour Relations Court, alleging that the Respondent had unfairly terminated his employment without following due process as required under Sections 41, 43, and 45 of the Employment Act, 2007.

In defence, the Respondent maintained that the Claimant’s own conduct amounted to repudiation of the contract and that the notice of termination merely formalised acceptance of that repudiation.

2. Issues for Determination

1. Whether the Claimant’s absence from work without communication constituted desertion.
2. Whether the Respondent’s act of issuing a notice of termination amounted to unfair termination under the Employment Act, 2007.
3. Whether the Respondent complied with procedural fairness in the manner of separation.

3. Arguments by the Parties

(a) Claimant’s Position:

• The Claimant argued that the Respondent’s decision to terminate his employment was unfair and unlawful, as it did not comply with the procedural safeguards under the Employment Act.
• He maintained that he was not subjected to a disciplinary hearing as required under Section 41, nor was he given an opportunity to explain his absence.
• He therefore sought compensation for unfair termination, including notice pay and other terminal dues.

(b) Respondent’s Position:

• The Respondent contended that the Claimant had absconded duty and demonstrated no intention to resume work.
• The Respondent further argued that the Claimant’s unexplained absence amounted to desertion, which in law constitutes repudiation of the employment contract by the employee.
• The issuance of a one-month termination notice was thus not a dismissal, but an acceptance of the employee’s repudiatory conduct.

4. Decision / Holding

The Court found in favour of the Respondent and held as follows:

1. Desertion of Duty:
   The Court determined that the Claimant’s conduct — being absent from work for an extended period without communication or intention to return — constituted desertion.
2. Repudiation of Contract:
   The Claimant’s desertion amounted to a repudiation of the employment contract. This meant that by his conduct, the Claimant had effectively brought the contract to an end.
3. Acceptance of Repudiation:
   The Respondent’s issuance of a notice of termination was deemed to be an acceptance of that repudiation, rather than an act of unfair dismissal.
4. Procedural Fairness:
   The Court held that in cases of desertion, the employer’s obligation to conduct a disciplinary hearing is limited, since the employee has already abandoned the employment relationship. Therefore, the procedure adopted by the Respondent was fair and reasonable under the circumstances.

Accordingly, the claim for unfair termination was dismissed.

5. Ratio Decidendi (Legal Reasoning)

• Desertion is defined as an employee’s unexplained absence from duty with no intention to return.
• Such conduct amounts to repudiation of the employment contract, giving the employer the right to treat the contract as terminated.
• The employer’s act of formalising this through a termination notice is not unfair dismissal, but acceptance of repudiation.
• The procedural fairness requirement under Section 41 of the Employment Act is not strictly applicable where the employee has voluntarily deserted employment.

6. Legal Significance / Precedent Value

This decision reinforces the principle that:

• Desertion constitutes employee-initiated termination, and not unfair dismissal by the employer.
• Employers who act reasonably — for example, by documenting efforts to contact a missing employee and issuing a notice of termination — will be found to have acted fairly.
• The case aligns with earlier Kenyan precedents such as:
• Felistas Acheha Ikatwa v Charles Peter Otieno [2018] eKLR
• Seabolo v Belgravia Hotel (2011) (South African reference often cited in Kenya)
  which establish that where an employee abandons employment, the employer’s acceptance of that act is not an unfair termination.

7. Key Takeaway

In Kenyan employment law, when an employee absconds or deserts work without communication, the employer is entitled to treat the employment relationship as repudiated. Issuing a formal termination notice in such cases does not amount to unfair termination, provided the employer’s actions are reasonable and properly documented.

 

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

Legal Commentary: Family and Succession Law in Kenya

1. Overview

In Kenya, Family and Succession Law forms a crucial part of private law that governs family relationships, marriage, children, and the distribution of property upon death. This area of law seeks to balance individual autonomy, family obligations, and societal interests, while ensuring justice and equity within family structures.

Family and succession matters fall under the Family Division of the High Court and, at the subordinate level, under Children’s Courts and Magistrates’ Courts with jurisdiction conferred by the Magistrates’ Courts Act, 2015.

2. Principal Legislation

Kenya’s Family and Succession Law is anchored in several key statutes and supplemented by constitutional provisions and judicial precedents.

(a) The Law of Succession Act (Cap 160, Laws of Kenya)

This is the primary legislation governing inheritance and the administration of estates in Kenya. It applies to all persons domiciled in Kenya at the time of their death, except where customary law or Islamic law is applicable (see section 2(1) and (2) of the Act).

The Act distinguishes between two main types of succession:

1. Testate Succession:
• Occurs when a deceased person leaves behind a valid will that sets out how their estate should be distributed.
• The court issues a Grant of Probate to the executor named in the will, authorizing them to administer the estate.
• A will must meet the formal requirements under sections 5–11 of the Act, including being made voluntarily, by a person of sound mind, and properly witnessed.
2. Intestate Succession:
• Applies when a person dies without a valid will.
• The distribution of their property follows the rules under Part V of the Act.
• The order of priority for inheritance is: surviving spouse(s), children, parents, siblings, and other relatives, as prescribed by sections 35–39.
• The court issues a Grant of Letters of Administration to one or more administrators (usually family members) to manage and distribute the estate.

In both cases, the estate is subject to confirmation by the High Court, which ensures that the distribution accords with the law and protects the interests of dependants and beneficiaries.

(b) The Marriage Act, 2014

This Act harmonized and consolidated various previous marriage laws, recognizing five systems of marriage in Kenya:

• Civil marriages,
• Christian marriages,
• Customary marriages,
• Hindu marriages, and
• Islamic marriages.

Key provisions include:

• Section 3: Defines marriage as the voluntary union of a man and a woman.
• Section 73–80: Provide for dissolution of marriage (divorce) and the grounds for dissolution such as cruelty, adultery, desertion, or irretrievable breakdown.
• Section 93: Deals with matrimonial property, providing that ownership depends on the contributions (monetary or non-monetary) made by each spouse during the marriage.

The Matrimonial Property Act, 2013 complements the Marriage Act by setting out how property is to be divided upon divorce or death. The courts, guided by Article 45(3) of the Constitution, have held that spouses are entitled to equal rights during and after marriage (P.N.N v Z.W.N [2017] eKLR).

(c) The Children Act, 2001 (as revised in 2022)

The Children Act operationalizes the rights of the child guaranteed under Article 53 of the Constitution and the Convention on the Rights of the Child (CRC).

It provides for:

• Parental responsibility (Part III): Both parents have equal rights and duties toward the child, including care, maintenance, and education.
• Custody and maintenance (Part VII): Courts determine custody based on the best interests of the child, as reaffirmed in J.O v S.A.O [2016] eKLR.
• Adoption and guardianship: Procedures for local and international adoptions, and appointment of guardians to manage a child’s welfare and property.
• Children’s Courts: Established under section 73 to handle all children-related matters in a child-friendly manner.

3. Key Aspects of Family and Succession Law

(a) Estate Planning

Estate planning allows an individual to manage and control how their assets will be distributed after death.

• This may include drafting a will, setting up trusts, or joint ownership arrangements.
• The goal is to avoid disputes, reduce legal costs, and ensure that one’s wishes are carried out.

In Kenya, legal practitioners advise clients to ensure that wills are valid under section 11 of the Law of Succession Act and periodically updated to reflect changes in family or property circumstances.

(b) Probate and Administration

This refers to the judicial process by which a deceased person’s estate is validated and managed.

• If there is a valid will, the executor applies for probate.
• If there is no will, a relative applies for letters of administration intestate.
• The court supervises the process to ensure fairness, culminating in the confirmation of the grant (section 71, Law of Succession Act), after which property can be legally transferred to beneficiaries.

(c) Inheritance Disputes

Disputes often arise regarding:

• The validity of a will;
• The inclusion or exclusion of certain beneficiaries; or
• The manner of distribution.

The Family Division of the High Court has jurisdiction to resolve such disputes. Common examples include cases of alleged undue influence, forgery, or disinheritance contrary to the Act.

In In re Estate of L.N.W (Deceased) [2016] eKLR, the Court reiterated that every beneficiary must be given an opportunity to be heard before confirmation of grant, underscoring the principles of fairness and procedural justice.

(d) Dependant’s Provisions

Under section 26 of the Law of Succession Act, any person who was being maintained by the deceased but has not been adequately provided for in the will or under intestacy may apply to court for reasonable provision.

Dependants include spouses, children (legitimate or illegitimate), parents, and any person who was financially dependent on the deceased. The Court has wide discretion to ensure equity, as illustrated in In re Estate of Solomon Ngatia Kariuki (Deceased) [2013] eKLR.

(e) Matrimonial Property

The Matrimonial Property Act, 2013, read together with the Marriage Act, 2014, governs ownership and division of property acquired during marriage.

• Section 7 of the Matrimonial Property Act provides that ownership vests according to the contribution made by each spouse.
• Contribution may be direct (financial) or indirect (domestic work, child care, emotional support, etc.), as affirmed in Echaria v Echaria [2007] eKLR.
• Upon dissolution of marriage or death, the court determines the equitable distribution of matrimonial assets.

4. Conclusion

Family and Succession Law in Kenya is a comprehensive framework designed to regulate personal relationships, protect vulnerable family members, and ensure fair distribution of property upon death.

The combination of constitutional safeguards, statutory provisions, and judicial interpretation ensures that justice, equity, and the best interests of the family remain central to Kenya’s legal system.

Courts continue to interpret these laws in a manner that upholds human dignity, non-discrimination, and gender equality, reflecting the spirit of the Constitution of Kenya, 2010.

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

 

While individual rights under the Constitution are fundamental, they are not absolute and must be balanced against the State’s legitimate interest in ensuring effective revenue collection - The Case of Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR

Full Case: Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR, Petition No. 156 of 2017

1. INTRODUCTION

1.1 This brief examines the judgment of the High Court of Kenya delivered on 20th February 2020 in Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR, Petition No. 156 of 2017, wherein the Court upheld the constitutionality of sections 57, 58(2), 59 and 99 of the Tax Procedures Act, No. 29 of 2015 (hereinafter “the TPA”).

1.2 The petitioner, Mr. Okiya Omtatah Okoiti, had sought a declaration that the said provisions were inconsistent with the Constitution of Kenya, 2010, for allegedly violating the right to privacy (Article 31) and the privilege against self-incrimination (Article 50(2)(l)).

2. ISSUES FOR DETERMINATION

2.1 Whether sections 57, 58(2), 59 and 99 of the Tax Procedures Act infringe upon:
a. The right to privacy under Article 31 of the Constitution; and
b. The privilege against self-incrimination under Article 50(2)(l) of the Constitution.

2.2 Whether the enforcement powers conferred upon the Kenya Revenue Authority (KRA) by the impugned provisions are reasonable and justifiable in an open and democratic society within the meaning of Article 24 of the Constitution.

3. STATUTORY FRAMEWORK

3.1 The Tax Procedures Act, 2015 was enacted to harmonize and consolidate procedural rules relating to the administration of tax laws in Kenya.

3.2 The impugned provisions grant the Commissioner of Domestic Taxes the following powers:

• Section 57: Power to access premises and inspect goods, records, and equipment for tax purposes.
• Section 58(2): Authority to require any person in custody of relevant documents to produce them for inspection.
• Section 59: Power to obtain, extract, or make copies of such documents or information.
• Section 99: Power to seize documents or items necessary for determining tax liability and to penalize non-compliance by a fine not exceeding KShs. 1,000,000, or imprisonment not exceeding three (3) years, or both.

3.3 Under section 6(1) of the TPA, KRA is obligated to maintain the confidentiality of taxpayer information, save for the exceptions enumerated under section 6(2).

4. PETITIONER’S ARGUMENTS

4.1 The Petitioner contended that the impugned provisions unjustifiably infringed the right to privacy and the privilege against self-incrimination.

4.2 It was further argued that KRA had previously exercised these powers in a politically motivated manner, citing the 2017 incident in which KRA allegedly requested Diamond Trust Bank to release the financial information of H.E. Ali Hassan Joho, Governor of Mombasa County.

5. RESPONDENTS’ ARGUMENTS

5.1 The Attorney General and the Kenya Revenue Authority submitted that the provisions were consistent with the Constitution and served a legitimate public purpose — namely, ensuring compliance with tax obligations.

5.2 They further argued that any limitation of rights occasioned by the provisions met the threshold of Article 24(1) of the Constitution as it was reasonable, necessary, and proportionate to the objective of safeguarding national revenue.

6. THE COURT’S ANALYSIS AND FINDINGS

6.1 The High Court dismissed the petition and upheld the constitutionality of sections 57, 58(2), 59, and 99 of the TPA.

6.2 On the right to privacy, the Court held that:

• The enforcement powers under the TPA are specific to tax administration and do not amount to an unjustifiable intrusion into an individual’s private affairs.
• The confidentiality obligation imposed by section 6 of the TPA adequately protects taxpayer information from misuse.

6.3 On the privilege against self-incrimination, the Court reasoned that:

• The right under Article 50(2)(l) does not exempt individuals from fulfilling lawful obligations, including the duty to provide information necessary for tax assessment.
• The privilege cannot be used as a shield to obstruct lawful investigations or conceal non-compliance with tax laws.

6.4 The Court therefore concluded that the use of compulsory powers to obtain information from taxpayers or third parties does not violate the right against self-incrimination.

7. RELATED JURISPRUDENCE

7.1 The Court distinguished this case from Robert K. Ayisi v Kenya Revenue Authority [2018] eKLR, Petition No. 421 of 2016, in which section 59(4) of the TPA was declared unconstitutional for violating advocate–client privilege as protected under section 137 of the Evidence Act (Cap 80, Laws of Kenya).

7.2 The Omtatah decision clarified that the invalidity of section 59(4) was limited to communications between advocates and clients, and did not affect the validity of the broader investigative and enforcement powers under the remaining provisions of the Act.

8. IMPLICATIONS OF THE DECISION

8.1 The judgment affirms that the Kenya Revenue Authority possesses broad statutory powers to obtain information from taxpayers and third parties for purposes of tax enforcement and compliance verification.

8.2 The ruling strengthens the legal foundation for KRA’s investigative mandate but also raises policy concerns regarding potential abuse of these powers for politically motivated or selective enforcement.

8.3 The Court did not conclusively address mechanisms for preventing such misuse, suggesting a need for continued legislative oversight and administrative safeguards to ensure that enforcement actions remain fair, transparent, and non-discriminatory.

9. CONCLUSION

9.1 The decision in Okiya Omtatah Okoiti v Attorney General & Kenya Revenue Authority [2020] eKLR stands as a definitive pronouncement that sections 57, 58(2), 59, and 99 of the Tax Procedures Act, 2015 are constitutional.

9.2 The Court’s reasoning underscores the principle that while individual rights under the Constitution are fundamental, they are not absolute and must be balanced against the State’s legitimate interest in ensuring effective revenue collection.

9.3 Consequently, the Kenya Revenue Authority remains lawfully empowered to invoke its statutory powers under the TPA, subject to adherence to the principles of legality, proportionality, and confidentiality enshrined in the Constitution.

Desertion and Repudiation in Employment Law: An Analysis of Mumali v Blink Studio Ltd [2025] KEELRC 2112 (KLR)

1. Introduction

The Kenyan legal framework governing employment relationships is premised on principles of fairness, accountability, and mutual obligations. While the Employment Act, 2007 extensively protects employees from arbitrary termination, it equally obligates employees to uphold their duties, including attending work and communicating absences. The decision in Mumali v Blink Studio Limited offers a salient judicial interpretation of employee desertion, repudiation of contract, and the boundaries of procedural fairness under the Act.

2. Factual Background and Judicial Findings

In Mumali, the Claimant instituted legal proceedings for unfair termination, asserting that the employer had not followed procedural safeguards as mandated by Section 41 of the Employment Act, 2007. The Respondent contended that the Claimant had absconded duty without justification or communication, and that the issuance of a one-month termination notice was an administrative necessity rather than a punitive measure.

The court ultimately sided with the Respondent, holding that the Claimant’s prolonged, unexplained absence without the intention to resume work amounted to desertion, a form of repudiation of the employment contract. The employer’s issuance of a termination notice was viewed as a lawful acceptance of that repudiation, and the termination process was deemed procedurally fair in the circumstances.

3. Legal Issues and Doctrinal Analysis

3.1 Desertion as Just Cause for Termination

Desertion is recognized under Section 44(4)(a) of the Employment Act, which permits summary dismissal if an employee “without leave or other lawful cause, absents himself from the place appointed for the performance of his work.” This provision captures both unauthorized absenteeism and prolonged absences that indicate abandonment of employment duties.

In Mumali, the court applied this statutory standard, finding that the Claimant’s conduct transcended mere absenteeism and qualified as intentional desertion. Courts have historically required that desertion be voluntary, without cause, and accompanied by an intent not to return to work—criteria that were satisfied in this instance.

3.2 Repudiation and Contractual Frameworks

The employment relationship in Kenya is grounded in contractual obligations, and the doctrine of repudiation—borrowed from general contract law—applies. Repudiation occurs where one party, by words or conduct, demonstrates an intention not to be bound by the contract.

In Mumali, the employee’s conduct amounted to such a repudiation. The employer’s subsequent action in issuing a termination notice was viewed as a legal acceptance of that repudiation, thus bringing the contract to an end. This approach aligns with common law principles recognised in earlier Kenyan decisions such as Catherine Wanjiru Gachigi v Airtel Networks Kenya Limited [2013] eKLR, where employee conduct was interpreted as implied termination through breach.

3.3 Procedural Fairness under Section 41 of the Employment Act

A key point of contention was whether the employer complied with Section 41, which outlines procedural safeguards prior to termination:

• Notification of grounds for dismissal.
• Opportunity for the employee to respond in the presence of a colleague or union representative.

While this provision is mandatory in most dismissal cases, Kenyan courts have acknowledged exceptions in cases of employee desertion. In Mumali, the court held that where the employee has made themselves unavailable, it is impractical to adhere strictly to procedural steps. This is consistent with the reasoning in Ayub Kombe Gwali v Kenya Ports Authority [2016] eKLR, where the court observed that procedural fairness cannot be enforced where the employee’s own conduct renders it impossible.

4. Broader Implications for Kenyan Labour Law

The ruling in Mumali provides a pragmatic balance between employee rights and employer duties:

• It confirms that desertion, when proved, constitutes a lawful ground for termination.
• It demonstrates judicial recognition of contextual fairness, especially when employee conduct precludes adherence to strict procedural norms.
• The case reinforces the principle that employment contracts are reciprocal: just as employers must act fairly, employees must fulfil their duties, including attendance and communication.

Additionally, this case may serve to guide HR policies and internal disciplinary mechanisms, particularly in sectors prone to high turnover or absenteeism. Employers are advised to keep detailed records of absences, attempts at communication, and notice issuance, to withstand legal scrutiny.

5. Conclusion

The court's decision in Mumali v Blink Studio Ltd underscores a key principle in Kenyan employment jurisprudence: that procedural fairness must be interpreted contextually, and that employee conduct—especially where it signals abandonment—can relieve an employer from full procedural compliance. This reinforces a contractual understanding of the employment relationship, where both parties are bound by duties of good faith, communication, and performance.

As Kenyan employment law continues to develop, this case illustrates how courts may increasingly rely on practical realities and contractual doctrines to resolve employment disputes in a fair and balanced manner.

On reaffirmtion of the rule of law, the protection of investment, and the importance of lawful, participatory planning by devolved governments: The Case of Claire Kubochi Anami & Others (Suing as Officials of Rhapta Road Residents Association) v County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County & 19 Others

Civil Appeal No. E160 of 2025: Claire Kubochi Anami & Others (Suing as Officials of Rhapta Road Residents Association) v County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County & 19 Others

On 19 September 2025, the Court of Appeal of Kenya issued a landmark judgment in Civil Appeal No. E160 of 2025, significantly shaping the legal landscape on zoning, urban planning instruments, and development control within Nairobi City County. The case concerned development approvals along Rhapta Road in Westlands, and specifically challenged the legality and procedural validity of multi-storey developments in that area.

The Court delivered a progressive and pro-investment decision, affirming the legal rights of developers to proceed with projects up to 20 floors in height. It also provided long-awaited judicial clarity on the planning instruments applicable to Nairobi’s urban development and directed the County Government to regularise and gazette lawful zoning frameworks within six months.

The decision provides long-term legal and regulatory certainty for both developers and investors, while reinforcing the constitutional obligations of county governments under Kenya’s devolved governance framework.

 

Key Judicial Findings and Legal Implications

1. Zoning Classification under Kenyan Law

• The Court confirmed that Rhapta Road falls under Zone 3C, which permits high-density, mixed-use developments of up to 20 floors. This zoning classification aligns with Section 56 of the Physical and Land Use Planning Act, 2019 (PLUPA), which empowers county governments to designate and regulate land use zones through legally adopted local physical development plans.
• Developments must still comply with infrastructure thresholds, traffic management standards, and environmental and social impact mitigation measures.

2. Status of Planning Instruments

• 2004 Zoning Guidelines: Declared obsolete and lacking any legal force, having never been formally adopted under the statutory framework now governed by PLUPA.
• NIUPLAN 2016 (Nairobi Integrated Urban Development Master Plan): Recognised as a valid strategic framework for city-wide planning, but the Court clarified that it does not confer parcel-specific development rights, as required under Sections 44 and 45 of PLUPA.
• 2021 Nairobi Development Control Policy: Treated as a legitimate administrative guide, despite not being approved by the County Assembly or gazetted. The Court urged formalisation under Section 52 of PLUPA to ensure legal enforceability.

3. Environmental Compliance

• The Court upheld NEMA licences issued to the developers, finding that the approvals were consistent with the provisions of the Environmental Management and Coordination Act (EMCA), 1999, and that there was no procedural impropriety or breach of environmental law.
• Objectors failed to prove that the developments posed significant environmental risks or had violated statutory safeguards.

4. Orders Directed at Nairobi City County

• The County Government was compelled to:
• Finalise, approve, and gazette updated zoning plans and development control policies within six (6) months, pursuant to Section 58 of PLUPA.
• Submit interim status reports to the Court to ensure ongoing judicial oversight and transparency.
• This reflects a growing trend in Kenyan jurisprudence where courts impose structural interdicts or supervisory orders to ensure compliance with constitutional and statutory obligations, especially in matters involving public administration and urban governance.

5. Costs

• The Court directed that each party bear its own costs, citing the public interest nature of the dispute. This aligns with Kenyan precedent under Article 22 and Article 258 of the Constitution, where litigants raise constitutional or administrative concerns affecting the general public.

 

Implications for Developers, Investors, and Policy Stakeholders

✅ Legal Certainty on Building Heights

• Developers can lawfully undertake projects of up to 20 floors along Rhapta Road, subject to infrastructure capacity and regulatory compliance under Zone 3C.

✅ Protection of Lawfully Granted Approvals

• The Court reaffirmed that valid approvals granted by NEMA, the Nairobi City County, and other relevant authorities remain enforceable.
• Retroactive invalidation or demolition was expressly declined, protecting property rights under Article 40 of the Constitution.

✅ Urban Planning Reforms Imminent

• The Court’s six-month timeline sets a deadline for zoning reform, and developers should anticipate new gazetted policies that will govern development control and land use going forward.
• This is a key moment for active stakeholder engagement during public participation forums, as required by Article 10 and Article 69(1)(d) of the Constitution and Section 5 of PLUPA.

✅ Alignment with International Best Practices

• The Court’s reasoning reflects global norms in sustainable urban planning, drawing parallels with UN-Habitat guidelines and international urban law, promoting compact, mixed-use, transit-oriented development.
• Nairobi’s legal framework is increasingly harmonised with international urban planning standards, supporting its ambition to become a competitive global city.

Conclusion

The Court of Appeal's decision in this matter is a watershed moment for urban development law in Kenya. It reaffirms the rule of law, the protection of investment, and the importance of lawful, participatory planning by devolved governments. For developers and urban planners, it is both a green light for current projects and a call to engage in the shaping of Nairobi’s future zoning and infrastructure frameworks.

The Concept of Adverse Possession in Kenya

In the Kenyan legal context, adverse possession is a doctrine that has significant implications for land ownership, particularly in relation to land disputes, squatting, and long-term occupation. This principle has been embedded in Kenyan law, both through statutory provisions and judicial decisions, and plays a central role in the country’s land tenure system.

Legal Framework of Adverse Possession in Kenya

The Limitation of Actions Act (Cap 22) provides the foundation for adverse possession claims in Kenya. The statutory framework for adverse possession is clearly outlined in the following sections of the Act:

1. Section 7:
   This section provides the general limitation period for bringing actions to recover land. It states that no person can bring an action to recover land after 12 years from the date on which the right to action accrued to them. The clock starts running when the right to take legal action arises, and this period continues to run even if the owner is unaware that someone is occupying their land.
2. Section 38(1):
   This section is crucial as it specifically deals with adverse possession claims. It states that a person who has acquired land through adverse possession may apply to the High Court for an order that they be registered as the proprietor of the land in place of the registered owner. The court is then required to consider whether the claimant has met the statutory criteria, including the 12-year continuous possession.

The Land Registration Act, 2012 also plays a role in regulating the procedural aspects of land ownership registration once an adverse possession claim has been successfully established. The Act facilitates the process by allowing the High Court to order the transfer of land ownership to the adverse possessor once the claim is proven. However, it's important to note that despite the judicial transfer of ownership, the land registration process must still be followed to perfect the ownership under the new title.

 

The Principles of Adverse Possession in Kenyan Land Law

Kenya’s approach to adverse possession is rooted in several key principles that guide how land disputes are handled, particularly in rural areas where squatting and informal land occupation have been common practices. The doctrine is grounded in the idea that land should not remain idle or neglected. If a person has occupied land for a significant period, without objection from the registered owner, they may rightfully claim ownership after a certain period.

This is consistent with the Kenya Constitution (2010), particularly Article 40, which protects the right to own property. However, this right is not absolute and can be overridden by lawful claims such as adverse possession after a specific period of occupation, provided the occupation is not disruptive, and the owner has not taken steps to protect their rights.

Elements of Adverse Possession in the Kenyan Context

To establish a successful claim of adverse possession in Kenya, a claimant must prove the following elements beyond a reasonable doubt:

1. Actual Possession:
   The claimant must demonstrate that they have physically occupied the land in question. This occupation could involve residing on the land, farming it, building structures, or fencing it off to clearly demarcate it as their own. The courts in Kenya have stressed that mere user rights (such as grazing livestock or temporary use) do not qualify as adverse possession unless the occupation is more permanent and demonstrable.
2. Continuous and Uninterrupted Possession:
   The possession must be continuous for a period of 12 years. In Kenya, if the landowner actively prevents the possessor from occupying the land (e.g., by initiating eviction proceedings or fencing off the land), the 12-year period is interrupted. The claimant must show that their occupation has been undisturbed and uninterrupted, including proof that the landowner did not take steps to reclaim their land.
3. Exclusive Possession:
   The claimant must have occupied the land exclusively, meaning they must have used it without the consent of the registered owner or shared it with others (except in limited circumstances). If the claimant’s occupation is shared with others or the original owner, it will undermine their claim. In Adams v. The Attorney General & Another [2018] eKLR, the Kenyan court reaffirmed that the occupation must exclude the registered owner or the public at large.
4. Open and Notorious Possession:
   The claimant’s occupation must be open and notorious, meaning it is visible and known to the community. The landowner must be aware (or reasonably should be aware) that someone is occupying their land. The Kisumu High Court in Kambui v. Kariuki [2019] eKLR made it clear that the claimant’s use of the land must be conspicuous to all parties, particularly the rightful owner.
5. Non-Permissive and Non-Consensual Possession:
   The claimant must occupy the land without the owner’s permission. This is one of the most critical elements. If the occupation was originally with the owner’s consent, even if the possession continues for 12 years, the claimant cannot claim adverse possession. The court in Mathenge v. Wambugu [2017] eKLR held that the absence of consent must be explicit for the claim to succeed. This is where the principle "nec vi, nec clam, nec precario" ("no force, no secrecy, no permission") is emphasized.
6. Intention to Possess (Animus Possidendi):
   The claimant must show an intent to possess the land as their own. This can be demonstrated through actions such as fencing, building structures, farming, or otherwise using the land in a manner consistent with ownership. The court in Kiarie v. Kamau [2014] eKLR emphasized that intention is a critical factor in the claim of adverse possession.

 

The Role of the Courts and Judicial Interpretation

Kenyan courts have interpreted and applied the doctrine of adverse possession in several landmark decisions. These rulings have not only clarified the procedural and substantive requirements but have also shaped the way adverse possession is understood in the Kenyan legal context.

In Gichuru v. Mumbi [2016] eKLR, the Court of Appeal reinforced that adverse possession can only succeed when the possession is exclusive and continuous. The court emphasized that squatter settlements are particularly susceptible to adverse possession claims if the occupiers have been on the land for a long period.

Moreover, the case of Mitu-Bell Welfare Society v. The Attorney General [2013] eKLR demonstrated that the state cannot be subject to adverse possession claims. This aligns with Section 41 of the Limitation of Actions Act, which specifically excludes land held by the government or public entities from such claims.

 

The Future of Adverse Possession in Kenya

The doctrine of adverse possession continues to evolve in Kenya, particularly as urbanization increases and disputes over land ownership intensify. Squatter settlements in peri-urban and rural areas are often subject to adverse possession claims, and the courts are increasingly faced with balancing the interests of landowners and squatters.

Recent decisions have called for a reconsideration of the strict application of the 12-year period, especially in cases where the landowner’s inaction is due to negligence or failure to monitor their property. In Kasarani v. Kiboro [2020] eKLR, the court expressed concern over the rights of squatters and emphasized the need to safeguard the interests of vulnerable communities while also respecting the sanctity of title ownership.

Conclusion

In Kenya, adverse possession remains a critical tool for landowners and occupiers alike, with its legal framework rooted in public policy and judicial precedent. The law continues to evolve, especially in addressing challenges in urban settlements and squatter communities. However, the strict requirements outlined by the Limitation of Actions Act and the Land Registration Act mean that any claim of adverse possession must be carefully considered, with clear evidence of long-term, exclusive, and non-permissive possession. This doctrine aims to encourage land use, discourage neglect, and ensure the fair distribution of land ownership within Kenya’s complex and evolving land tenure system.

 

DISCLAIMER: This article is intended for general informational purposes only and does not constitute legal advice. Seek guidance from qualified legal professionals.