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ELCAllowedNot stated in the judgment (Petition and Notice of Motion dated 9th July 2020, filed 9th July 2020)· [2021] KEELC 421 (KLR)

Lydia Kaguna Japeth & 2 others v Mbesa Investment Limited & 2 others [2021] KEELC 421 (KLR)

Environment and Land Court of Kenya
6 December 2021
7,207 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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Mombasa's Environment and Land Court has halted Mbesa Investments' three-tower beachfront development while neighbours' environmental challenge and a related NEMA licence appeal are decided.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Mombasa (L.L. Naikuni, J) on a Notice of Motion by the 1st, 2nd and 3rd Petitioners seeking conservatory orders to restrain Mbesa Investments Limited from constructing three towers comprising 126 units, swimming pools, underground water tanks, a sea wall and associated facilities on LR MN/1/5503, MN/1/5504 and MN/1/3412 pending the hearing of their Petition. The Petitioners, owners and occupiers of adjacent properties, alleged the development violated constitutional rights to a clean and healthy environment, fair administrative action and public participation; that the EIA licence, certificate of variation, change of user and consolidation approvals were irregularly obtained; that no development permission existed under the Physical and Land Use Planning Act 2019; and that title conditions and NEMA coastal guidelines were breached. A preliminary objection on jurisdiction (based on Sections 129 and 130 of EMCA) had earlier been dismissed, the Court relying on Benson Ambuti Adega v Kibos Distillers. The 1st Respondent maintained it had all approvals and relied on Munya principles on conservatory orders. The Court framed four issues, applied the settled conservatory order principles, and found the Petitioners had established an arguable prima facie case with likelihood of success, prejudice, enhancement of constitutional values, risk of the petition being rendered nugatory, and public interest favouring the orders. It granted the conservatory order, stayed the Petition pending the outcome of NET Appeal No. 30 of 2020 (Mbesa Investments Limited v NEMA) on the EIA licence, and ordered costs in the cause.

Key legal issues

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01

Whether the threshold for conservatory orders was met

Holding

The Court found the Petitioners satisfied all the principles for grant of conservatory orders

Reasoning

Applying the Munya principles, the Court held the Petitioners demonstrated an arguable prima facie case with likelihood of success; that absent conservatory orders they would suffer prejudice from the ongoing construction; that granting the orders would enhance constitutional values; that denial would render the petition nugatory; and that public interest favoured granting the orders given the alleged regulatory irregularities in the approvals, change of user and EIA processes.

02

Effect of the earlier ruling on the preliminary objection and the pending NET appeal

Holding

The Court held the earlier ruling impliedly stayed the proceedings pending the NET's decision in NET Appeal No. 30 of 2020 on the legality of the EIA licence

Reasoning

The Court construed its own earlier ruling dismissing the preliminary objection (which had relied on Benson Ambuti Adega v Kibos Distillers on the ELC's jurisdiction) as implying a stay of proceedings pending the NET's determination of the EIA licence issue. It therefore directed that the Petition be stayed pending the NET outcome, after which the ELC would hear the Petition.

p. 8

Legal principles established

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  • In a conservatory order application the court makes no definitive findings of fact or law but assesses whether a prima facie case exists and whether prejudice will ensue
  • An applicant for conservatory orders must demonstrate an arguable prima facie case with likelihood of success, prejudice if denied, enhancement of constitutional values, that the petition would be rendered nugatory, and public interest

Court orders

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  1. 1.Conservatory order restraining the 1st Respondent from proceeding with the construction of Towers A, B and C comprising 126 units, swimming pools, underground water tanks, sea wall and associated facilities on LR MN/1/5503, MN/1/5504 and MN/1/3412 pending hearing and determination of the Petition
  2. 2.Stay of the hearing and determination of the Petition pending the final outcome of NET Appeal No. 30 of 2020 (Mbesa Investment Limited v NEMA) on the legality of the EIA licence
  3. 3.Thereafter, depending on the outcome of the NET decision, the Court to proceed to hear the issues raised in the Petition
  4. 4.Mention on 3rd March 2022 to ascertain progress and outcome of the NET proceedings
  5. 5.Petition to be heard by viva voce evidence and reliance on pleadings and written submissions
  6. 6.Costs to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 2(1)&(3), 10, 22, 23, 27(1)&(2), 42, 70, 165, 162(2)(b)
  • Environment Management and Coordination Act 1999 (EMCA)Sections 3, 58, 59, 129, 130
  • Environment and Land Court Act 2011Sections 4, 13(1), 13(2)(a), 7(a)
  • Environment (Impact and Audit) Regulations, 2003Regulations 17(1), 17(2), 21
  • Physical and Land Use Planning Act 2019Sections 57(1), 58(1), 58(7)
  • Physical Planning Act (Repealed)Sections 41(3), 52
  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rules 4, 13, 19, 23(1)&(2), 24
  • Integrated National Land Use Guidelines (NEMA)Regulation 3.2.1

Cases cited (11)

  • Benson Ambuti Adega & 2 Others v Kibos Distillers Limited & 5 Others
    [2020] eKLR
  • Patrick Pomanus Omuto Odundo & Another v Agro Chemicals & Food Company Limited & 2 others
    [2020] eKLR
  • Patrick Musimba v National Land Commission and 4 Others
    [2015] eKLR
  • Micro & Small Enterprises Associations of Kenya (Mombasa Branch) v Mombasa County Government
    [2014] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 Others
    [2014] eKLR, Supreme Court Appeal No. 5 of 2014
  • Platinum Distillers Limited v Kenya Revenue Authority
    (2019) eKLR
  • Centre for Rights Education and Awareness (CREAW) and Another v Speaker of the National Assembly and 2 Others
    [2017] eKLR
  • Simeon Kioko Kitheka & 18 Others v County Government of Machakos & 2 others
    [2018] eKLR
  • Ndanabo v The Attorney General
    [2001] 2EA 485
  • Nubian Rights Forum & 2 Others v Attorney General & 6 Others
    Nos. 56 of 2019 [eKLR]
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 Others
    [2015] eKLR
Jurisdiction invoked
Articles 22, 23, 70 and 162(2)(b) of the Constitution; Sections 4 and 13 of the Environment and Land Court Act; Section 3 of EMCA

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, "Lydia Kaguna Japeth & 2 others v Mbesa Investment Limited & 2 others [2021] KEELC 421 (KLR)", Case Analysis (2021). Not stated in the judgment (Petition and Notice of Motion dated 9th July 2020, filed 9th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/421/eng@2021-12-06

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