Court stops construction of affordable houses in Thika
High Court
The Environment and Land Court in Thika has halted the planned construction of an affordable housing project on a 58-acre parcel of land in Githunguri, Kiambu County, pending the hearing and determination of a petition challenging the development.
Justice Jacqueline Mogeni issued conservatory orders restraining the government and other respondents from undertaking any construction, excavation, fencing or other activities on the disputed land, which the petitioners say is a gazetted Agikuyu cultural heritage site.
The court also directed that the status quo prevailing before February 21, 2026, be maintained.
The petition was filed by Reuben Gichungu Kung, James Nene, Kimani Charagu, suing as an official of the Maina and Mwangi Trust, and Peter Mudinia.
They argue that the land holds significant historical and cultural value for the Agikuyu community and should be protected from developments that could destroy its heritage.
According to court documents, the property was acquired in the 1930s by Agikuyu age groups, commonly known as marika, to support African self-emancipation and education.
The site later served as a colonial detention facility and gallows during the 1952 State of Emergency, making it an important landmark in Kenya’s struggle against colonial rule.
The petitioners further contend that the site was formally gazetted as a protected area and monument on January 14, 2011, under Gazette Notices Nos. 244 and 245, pursuant to the National Museums and Heritage Act.
They told the court that the dispute arose in February this year when individuals linked to the proposed affordable housing project allegedly entered the property and began fencing and other preparatory works without adequate public participation or consultation with the affected community.
The petitioners also raised concerns over the alleged absence of planning approvals, heritage impact assessments and written reasons for the proposed change of user.
Several respondents opposed the application, arguing that the petitioners had not met the legal threshold for the granting of conservatory orders and had failed to demonstrate sufficient evidence of constitutional or statutory violations.
However, Justice Mogeni found that the petition raised serious and arguable constitutional issues, particularly concerning the protection of cultural heritage, public participation and fair administrative action.
The judge held that allowing construction and excavation to proceed could cause irreversible damage to the site’s historical features before the court determines the legality of the proposed development.
The court ruled that the destruction of historical monuments and sacred heritage grounds could not be adequately remedied through damages or a subsequent judicial declaration.
“The sudden entry, fencing, and excavation activities commenced on 21/02/2026 for housing developments allegedly conducted without public participation or statutory compliance raise serious, triable issues under Articles 10, 11, 35, and 47 of the Constitution as well as the Physical and Land Use Planning Act 2019 and the Fair Administrative Action Act 2015,” ruled the court.
While public housing is a recognized public objective, said the court, Article 11 explicitly elevates culture as the foundation of Nation.
“Such physical transformation would render the main Petition entirely nugatory, as no subsequent judicial declaration or award of damages could restore destroyed historical monuments or sacred heritage grounds,” said Justice Mogeni.
The Officer Commanding Githunguri Police Station was directed to supervise and enforce compliance with the orders.
The parties were also directed to file and serve their respective pleadings within 14 days, with the matter scheduled for mention on November 9, 2026, for further directions on the hearing of the main petition.
The petitioners have sued the Cabinet Secretary for Lands, Public Works, Housing and Urban Development; the Principal Secretary in the State Department for Housing and Urban Development; the Cabinet Secretary for Gender, Culture, the Arts and Heritage; the National Museums of Kenya; the County Government of Kiambu; the Kiambu County Executive Committee Member in charge of Lands, Physical Planning, Housing and Urban Development; the Kiambu County Commissioner; and the Attorney-General.
The Kenya Unity for Memorial, Peace, Heritage and Cultural Organization has been listed as an interested party in the case
