Patrick Kamotho Githinji & 4 others (suing for and on behalf of aggrieved residents of Muthurwa Estate within Nairobi County) v Resjos Enterprises Ltd & 4 others [2016] KEELC 503 (KLR)
The bottom line
#A Nairobi court halted the Muthurwa road project because it started before getting the required NEMA environmental licence, confirming no project is too big to stop.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondents' commencement of the road project before obtaining an EIA licence breached EMCA and the petitioners' right to a clean and healthy environment
Yes. The project was required to undergo EIA and obtain an EIA licence before commencement; the respondents commenced works before licensing, and the study report was submitted to NEMA only after the suit was filed, with no licence exhibited.
Section 58 and the Second Schedule of EMCA and the 2013 Regulations required the road project to undergo environmental impact assessment and not commence until licensed by NEMA. The respondents were aware of this requirement but commenced implementation before obtaining the licence. The study report dated 31st March 2016 was submitted to NEMA only after the petition was filed, and much of the public participation occurred during ongoing works. No licence was exhibited. In the absence of NEMA approval, the court could not assess the adequacy of the proposed mitigation measures.
Whether public participation and the environmental assessment satisfied constitutional requirements
No. Much of the claimed public participation was conducted after the filing of the suit and while the project was ongoing.
The respondents relied on meetings, questionnaires and an Environmental and Social Impact Assessment Project Study Report to demonstrate public participation and assessment. However, the court noted that much of the participation process in preparing the report took place after the petition was filed on 8th March 2016 and while project execution was ongoing. The report itself, submitted to NEMA on 31st March 2016, remained unapproved, so the adequacy of the mitigation interventions could not be judicially verified.
Whether public interest in the road project outweighed the petitioners' environmental rights
No. The right to a clean and healthy environment benefits all humanity and cannot be downgraded to a private right; no public interest justified limiting it in the circumstances.
The respondents argued that the project, 50% complete and costing over Kshs 107 million, was for public good and that halting it would cause delays, extra costs and taxpayer burden. The court rejected the framing of environmental protection as a private interest, holding that the duty to protect the environment is universal. It therefore declined to allow public-interest considerations to justify the respondents' unlawful conduct and lack of licensing.
Whether the alleged ailments and risks warranted interim relief absent scientific proof of causation
Yes, by applying the precautionary principle; scientific proof of causation was not required where environmental harm was in doubt.
The court accepted that there was no scientific proof that the residents' ailments directly resulted from the project, but held that the acknowledged impacts in the study report - noise and air pollution, vegetation destruction and accident risks - in the absence of NEMA-approved mitigation measures, justified applying the precautionary principle, resolving doubt in favour of protecting nature. This supported finding a prima facie case.
Legal principles established
#- An applicant for a conservatory or interim order under Rule 23 must demonstrate a prima facie case, likely prejudice or injury from violation or threatened violation of constitutional rights, and that it would be in the public interest to grant the order
- A road project of the scale contemplated under Section 58 and the Second Schedule of EMCA and the Environmental (Impact Assessment and Audit) Regulations, 2013 requires an environmental impact assessment and must not commence before an EIA licence is issued by NEMA
- An environmental impact assessment study report is of no legal significance until approved by NEMA; it is NEMA's duty to verify mitigation measures and ensure post-licensing audit compliance
- Where there is doubt as to environmental harm, the precautionary principle (in dubio pro natura) applies, resolving doubt in favour of protection and conservation of the environment
- A right to a clean and healthy environment is a right for the benefit of all humanity and cannot be characterised as a mere private right against which public interest may be weighed
Court orders
#- 1.A conservatory order in the nature of an injunction restraining the 1st, 2nd, 4th and 5th respondents from continuing with any further construction or rehabilitation of access road to Muthurwa Market and bus terminus until they obtain and furnish the court with an Environmental Impact Assessment Licence issued by NEMA in respect of the project and a written report on the measures taken to address the petitioners' concerns regarding public safety and noise and air pollution caused by excessive dust and vehicular traffic through the road diversion within the petitioners' residences
- 2.Either party shall be at liberty to apply
- 3.The cost of the application shall be in the cause
- Jurisdiction invoked
- Articles 10, 22, 23, 42 and 70 of the Constitution; Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gichohi & another v Bajuun Properties Ltd & 2 others (Environment and Land Case E049 of 2023) [2026] KEELC 5146 (KLR)[2026] KEELC 5146 (KLR)31 Jul 2026
- Addax Kenya Limited v National Environment Management Authority & another [2019] KEELC 3981 (KLR)[2019] KEELC 3981 (KLR)28 Mar 2019
- Addax Kenya Limited v National Environment Management Authority & another [2019] KEELC 3981 (KLR)[2019] KEELC 3981 (KLR)28 Mar 2019
Cite this brief
#Cite this brief
Caselaw, "Patrick Kamotho Githinji & 4 others (suing for and on behalf of aggrieved residents of Muthurwa Estate within Nairobi County) v Resjos Enterprises Ltd & 4 others [2016] KEELC 503 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/503/eng@2016-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.