Abdalla & 5 others v Khansa Developers Limited & 3 others
The bottom line
#A Mombasa court cancelled an 18-storey development's approvals because residents were never meaningfully consulted before permits were issued.
What this practically means
#Executive summary
#Key legal issues
#Threshold of a constitutional petition (Anarita Karimi Njeru precision)
The Petition met the threshold of reasonable precision in pleading constitutional violations
Applying Anarita Karimi Njeru and Mumo Matemu, the court required violations to be pleaded with reasonable precision identifying the provisions infringed and the manner of infringement. It found the Petitioners had duly pleaded the violations of Articles 10, 40, 42, 47 and 69 with sufficient particularity, and that the pleadings properly narrowed the issues as envisaged in Thorp v Holdsworth.
Jurisdiction of the ELC
The ELC has jurisdiction over the constitutional claims concerning environment and land; the earlier ruling of 26th July 2022 stands and was not properly challenged
Jurisdiction can be raised at any time. The court had already ruled on the preliminary objection on 26th July 2022, and the 4th Respondent, without seeking review, setting aside or appeal, could not re-litigate it. The court affirmed its mandate as a specialised court over environment and land disputes, citing Kenya Association of Manufacturers on environmental governance.
Locus standi of the Petitioners
The Petitioners, as neighbouring residents, had sufficient interest and the Petition was properly instituted as public interest litigation
Articles 22 and 258 enlarged locus standi, and section 3(4) EMCA dispenses with proof of personal loss in environmental actions. The petitioners reside around the suit property and their claim affects a larger group of residents. Reliance on Order 1 Rule 8 CPR was misplaced in a constitutional petition. Citing Mumo Matemu on the transformative role of public interest litigation.
Joinder of the 2nd Respondent
The 2nd Respondent was properly joined; a petition cannot be defeated by misjoinder
At filing, the transfer to the 1st Respondent was still in motion; searches showed the 2nd Respondent as registered proprietor, and Form PPA 2 approving development was issued in the 2nd Respondent's name. Under Rule 5 of the Mutunga Rules a petition is not defeated by misjoinder, and Article 159(2)(d) counsels against undue regard to technicalities.
Adequacy of public participation
There was no effective and adequate public participation; the approvals violated Article 10, 69(1)(d) and the applicable statutes
Applying Mui Coal Basin principles, participation must be meaningful, inclusive and informed. The questionnaire surveys predated registration of the property in the 1st Respondent's name; the only public meeting occurred in August 2022 after the EIA report was submitted and after approvals were granted; the 3rd Respondent wrongly disclaimed responsibility for public participation while the 4th Respondent adduced nothing. Section 58 PLUPA and Regulation 17 of the EIA Regulations were not satisfied.
Right to a clean and healthy environment
The development threatened the Petitioners' Article 42 rights; the area is a development control area earmarked for low-rise buildings and the process was flawed
The EIA itself identified negative impacts including dust, noise, reduced privacy and strain on utilities. From the site visit, the Petitioners' houses would lose natural light and privacy. The 1st Respondent's property rights are not absolute. It also commenced development before the NEMA licence issued on 23rd August 2022, rendering the process flawed, wrongful and unprocedural.
The Cross-Petition for damages
The Cross-Petition was incompetent in a constitutional petition and disclosed no violation of rights
Under the Mutunga Rules (Rules 2, 10(2) and 15(3)), a cross-petition must disclose constitutional violations. The 1st Respondent's cross-petition claimed defamation and damages for loss of reputation without disclosing any constitutional provision breached; a counter-claim/request for judgment procedure under Order 10 CPR is alien to constitutional petitions. Allowing it would chill the right to institute proceedings under Articles 22 and 23.
Legal principles established
#- Where a party alleges absence of public participation, the burden shifts to the proponents to demonstrate that effective public participation took place
- Public participation must precede development approvals and cannot be a cosmetic afterthought conducted after permits are granted
- The right to own, use and develop property is not absolute and must be exercised with regard to the rights of other members of the community
- Under Articles 22 and 258 of the Constitution the scope of locus standi is enlarged, and it is not necessary to show personal loss or injury to sue in environmental matters under section 3(4) EMCA
Court orders
#- 1.Judgment entered in favour of the Petitioners with costs
- 2.The Cross-Petition by the 1st Respondent dismissed with costs
- 3.A declaration that the proposed development of an 18 floors storey building on Plot Number Mombasa/Block/XXVI 595 is irregular, illegal and wrongful for failure to comply with Articles 10, 40, 42 and 69 of the Constitution
- 4.A declaration that all development approvals issued by the 3rd and 4th Respondents for the proposed development without complying with Articles 10, 40, 42, 47 and 69 are illegal, irregular, wrongful and therefore null and void ab initio
- 5.Costs of the Petition and of the dismissal of the Cross-Petition awarded to the Petitioners
- Jurisdiction invoked
- Article 165(3)(d)(5) as read with Article 162(2)(b) of the Constitution; Articles 22 and 23 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ali & 2 others v Stay City Apartments Limited & 3 others (Constitutional Petition E017 of 2023) [2024] KEELC 3881 (KLR)[2024] KEELC 3881 (KLR)2 May 2024
Cite this brief
#Cite this brief
Caselaw, "Abdalla & 5 others v Khansa Developers Limited & 3 others", Case Analysis (2023). Constitutional Petition 16 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15889/eng@2023-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.