The recent push for the Nairobi Rivers Regeneration Project has highlighted an ongoing issue in Kenya. This issue is the conflict between environmental restoration and private property rights. As the government seeks to reclaim river corridors to reduce flooding, the Institution of Surveyors of Kenya (ISK) has provided an important professional and legal perspective. They argue that protecting ecosystems should not violate the constitutional rights of citizens.
One main challenge identified by ISK is the absence of a uniform technical definition for what constitutes “riparian land.” Currently, various laws, including the Water Act, EMCA, and the Physical and Land Use Planning Act, offer different measurements for riparian reserves, ranging from 6 to 30 meters. Moreover, the points of reference are inconsistent. It is unclear whether the reserve should be measured from the centerline of the river, the bank, or the “High Water Mark.” Without a standardized definition, developers and regulators often rely on different sets of data.
ISK addresses a common misunderstanding: riparian reserves are not automatically considered public land. In many cases, especially for smaller tributaries, private titles extend legally to the centerline of the river. Under Article 66 of the Constitution, the state can regulate the use of this land for environmental protection, but this does not imply that the land belongs to the state. This distinction is crucial because it shifts the discussion from “illegal occupation” to “regulated private use” under development controls.
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The most contentious issue involves properties that were lawfully acquired and developed in good faith under earlier regulatory frameworks. ISK makes a clear distinction between the “good faith developer,” who holds a valid title and approved plans, and those who obtained land through deceit or built contrary to existing laws. For the former, any state action resulting in the loss of land is regarded as compulsory acquisition. Article 40(3) of the Constitution requires the state to conduct a professional valuation and provide prompt, fair, and full compensation before any demolition or repossession takes place.
Beyond the immediate use of excavators, ISK suggests that long-term flood mitigation needs a shift toward data-driven urban management. This involves using historical satellite data and aerial mapping to understand natural water flow and enforcing ratios for natural space on developed plots. By ensuring that concrete does not cover 100% of a development, water can seep into the ground instead of overwhelming drainage systems. Ultimately, ISK argues that sustainable environmental management must be technically sound, legally compliant, and balanced with the rule of law to maintain public trust in land administration.
