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Court of AppealPartially AllowedNotice of Motion dated 16th January 2025 in Civil Appeal No. E1010 of 2024· [2025] KECA 627 (KLR)

Mbaazi Residents Association & 1 other v Metricon Home Nairobi Co. Ltd & 2 others

Court of Appeal
4 April 2025
3,026 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal stopped the Lavington 16-storey project for 60 days and fast-tracked the appeal, ruling that completed buildings no court can undo are exactly when courts must intervene.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Karanja, M'inoti and Achode, JJA) on a notice of motion dated 16th January 2025 in which Mbaazi Avenue Residents Association and Millennium Gardens Management Ltd sought conservatory orders to stop Metricon Home Nairobi Company Ltd's development of 16 storeys with 512 units on LR No. 330/155, Mbaazi Avenue, Lavington, pending their appeal (Civil Appeal No. E1010 of 2024) against the dismissal by the Environment and Land Court (Angote, J.) on 19th September 2024 of a petition founded on Articles 10, 42, 47 and 69 of the Constitution. The ELC had found substantial public participation, no demonstrated environmental violation, and had applied the Nairobi City County Development Policy, 2021, which the applicants said no party had pleaded. Applying the principles in Stanley Kangethe Kinyanjui v. Tony Ketter and Peter Gatirau Munya, the Court found the appeal arguable - the zoning policy issue and the environmental complaints were 'not idle complaints' - and held the appeal would be rendered nugatory if the project was completed, since the completed structures would be 'a monument to environmental degradation' and demolition would not benefit anyone. Balancing the developer's financial concerns against the applicants' right of appeal and environmental protection, the Court allowed the motion and issued a conservatory order limited to sixty days, directed the Registrar to fast-track the appeal on priority basis, and ordered that costs of the application abide the outcome of the appeal.

Key legal issues

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01

Whether the applicants' appeal against the ELC dismissal of their environmental petition was arguable

Holding

The appeal was held arguable: the complaint that the ELC applied the Nairobi City County Development Policy, 2021, which no party had pleaded, and the environmental concerns raised were not idle complaints deserving ventilation.

Reasoning

The court applied the Kinyanjui v. Ketter principles that one bona fide issue suffices. The applicants contended the ELC erred in relying on a zoning policy not pleaded by any party and in disregarding the existing zoning under review, together with factors said to translate into severe environmental degradation and violation of the right to a clean and healthy environment. Given the centrality of environmental protection and the constitutional elevation of that right, these deserved full ventilation.

p. 6
02

Whether the appeal would be rendered nugatory if the project were completed

Holding

Yes; if the appeal succeeded after completion, the project would be a monument to environmental degradation, and demolition of completed structures would not console Metricon.

Reasoning

The court weighed Metricon's and the County's concerns about financial loss from stoppage against the applicants' undisputed right of appeal and right to ventilate environmental grievances. The irreversible character of the environmental harm upon completion meant the appeal would be rendered nugatory, since downscaling or restoration orders could not undo a completed 16-storey development.

p. 6
03

Whether a conservatory order should issue in public interest

Holding

A limited, time-bound conservatory order of sixty days was issued, coupled with fast-tracking of the appeal, so the project's continuation rests on established legality and constitutionality.

Reasoning

The court noted conservatory orders under Article 23(3) are available in Bill of Rights proceedings and, per Munya, are granted on the inherent merits bearing in mind public interest, constitutional values and proportionate magnitudes. Balancing the developer's valid financial concerns against the applicants' right of appeal and environmental protection, the court chose a limited and time-bound order with priority listing of the appeal.

p. 6

Legal principles established

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  • An arguable appeal need not be one that must succeed, nor raise a multiplicity of issues; even one bona fide issue deserving full consideration suffices, and an applicant must satisfy the court on both arguability and nugatory-ness.
  • A conservatory order is available only in proceedings to vindicate rights and fundamental freedoms in the Bill of Rights and is intended to preserve the subject matter so constitutional proceedings are not rendered nugatory.
  • Where a completed project would amount to irreversible environmental degradation, the appeal would be rendered nugatory because demolition of completed structures is no real remedy.

Court orders

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  1. 1.the notice of motion dated 16th January 2025 is allowed
  2. 2.a conservatory order is issued for a period of sixty (60) days from the date of the ruling
  3. 3.the Registrar shall forthwith issue directions on the hearing of Civil Appeal No. E1010 of 2024 and list the appeal for hearing on priority basis
  4. 4.costs of the application shall abide the outcome of the appeal
On appeal from
Environment and Land Court at Nairobi
Petition before the ELC (Angote, J.)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal, with a conservatory order sought under Article 23(3) of the Constitution in a pending appeal (Civil Appeal No. E1010 of 2024)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mbaazi Residents Association & 1 other v Metricon Home Nairobi Co. Ltd & 2 others", Case Analysis (2025). Notice of Motion dated 16th January 2025 in Civil Appeal No. E1010 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/627/eng@2025-04-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.