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ELCPartially AllowedConstitutional Petition 16 of 2022· [2023] KEELC 15889 (KLR)

Abdalla & 5 others v Khansa Developers Limited & 3 others

Environment and Land Court of Kenya
22 February 2023
18,556 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~74 min to read original · ~4 min brief

The bottom line

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A Mombasa court cancelled an 18-storey development's approvals because residents were never meaningfully consulted before permits were issued.

What this practically means

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Executive summary

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Six neighbouring property owners in Kizingo, Mombasa petitioned the Environment and Land Court challenging the proposed 18-storey residential development by Khansa Developers Limited on Plot Mombasa/Block XXVI/595, alleging violation of Articles 10, 40, 42, 47 and 69 of the Constitution through inadequate public participation and failure to follow statutory procedures for change of user, development permission and environmental impact assessment. The developer and the County Government of Mombasa defended the approvals; NEMA relied on its EIA licence. The court, after a locus in quo site visit, framed seven issues. It held the petition met the Anarita Karimi Njeru threshold of precision; the ELC had jurisdiction, its 26th July 2022 ruling on the preliminary objection standing unchallenged; the petitioners had locus standi under Articles 22 and 258 and section 3(4) EMCA as public interest litigants; and the 2nd Respondent was properly joined since transfer of the property was still in motion when the petition was filed. On the merits, applying the Mui Coal Basin principles, the court found public participation was not effective: the questionnaire surveys predated the 1st Respondent's registration, and the only public meeting occurred after approvals and submission of the EIA report. Development also commenced before the NEMA licence issued on 23rd August 2022. The court declared the development and all approvals illegal, irregular and null and void ab initio. The developer's cross-petition for damages was held incompetent in a constitutional petition and dismissed. Judgment was entered for the petitioners with costs.

Key legal issues

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01

Threshold of a constitutional petition (Anarita Karimi Njeru precision)

Holding

The Petition met the threshold of reasonable precision in pleading constitutional violations

Reasoning

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.

02

Jurisdiction of the ELC

Holding

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

Reasoning

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.

p. 19
03

Locus standi of the Petitioners

Holding

The Petitioners, as neighbouring residents, had sufficient interest and the Petition was properly instituted as public interest litigation

Reasoning

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.

04

Joinder of the 2nd Respondent

Holding

The 2nd Respondent was properly joined; a petition cannot be defeated by misjoinder

Reasoning

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.

p. 24
05

Adequacy of public participation

Holding

There was no effective and adequate public participation; the approvals violated Article 10, 69(1)(d) and the applicable statutes

Reasoning

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.

06

Right to a clean and healthy environment

Holding

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

Reasoning

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.

p. 34
07

The Cross-Petition for damages

Holding

The Cross-Petition was incompetent in a constitutional petition and disclosed no violation of rights

Reasoning

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.

p. 35

Legal principles established

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  • 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

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  1. 1.Judgment entered in favour of the Petitioners with costs
  2. 2.The Cross-Petition by the 1st Respondent dismissed with costs
  3. 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. 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. 5.Costs of the Petition and of the dismissal of the Cross-Petition awarded to the Petitioners

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2(1), 10, 22, 23, 25(c), 40, 42, 47, 60, 64, 69, 70, 73, 75, 159(2)(d), 162(2)(b), 165(3)(d) and (5), 176, 232, 258, 259(1)
  • Physical and Land Use Planning Act, 2019Sections 4, 55, 58, 61, 72(3) and (4), 93
  • Environmental Management and Coordination Act, 1999Sections 3, 7, 58, 59, 129(1)
  • Civil Procedure Rules, 2010Order 1 Rules 8 and 13; Order 10 Rule 4(2); Order 18 Rule 11
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2, 5, 10(2), 15(3), 26
  • Civil Procedure Act, Cap. 21Section 27(1)
  • Land Registration Act, No. 3 of 2012Section 26
  • Environment (Impact Assessment and Audit) Regulations, 2003Regulation 17
  • Rio Declaration on Environment and Development (1992)Principle 10

Cases cited (23)

  • Mukisa Biscuits - Versus - West End Manufacters Limited
  • Law Society of Kenya - Versus - Attorney General & 2 Others (2019) eKLR
    [2019] eKLR

    On public participation; burden shifts to respondent once absence of participation is alleged

  • James Ndugi & 4 Others - Versus - Jamleck Waithaka Kinyua & 4 Others, ELCC/E126 of 2020
    ELCC/E126 of 2020

    Authority on representative suits and authority to plead (cited by 1st and 2nd Respondents)

  • Benson Ambuti Adega & 2 others - Versus - Kibos Distillers Limited & 5 Others

    Cited by 4th Respondent on jurisdiction of the Physical Planning Liaison Committee and exhaustion doctrine

  • Mumo Matemu - Versus - Trusted Society of Human Rights Alliance & Another (2013) eKLR
    Civil APP.290/2012 (2013) eKLR

    Standards of proof and precision in constitutional petitions; locus standi and public interest litigation

  • Mumo Matemu - Versus - Trusted Society of Human Rights Alliance & 5 others [2014] eKLR
    [2014] eKLR

    Enlarged locus standi under Articles 22 and 258; transformative role of public interest litigation

  • Anarita Karimi Njeru - Versus - Republic [1980] eKLR 154
    (1979) 1 KLR 154; [1980] eKLR 154

    Requirement of reasonable precision in pleading constitutional violations

  • Thorp - Versus - Holdsworth (1886) 3 Ch. D 637
    (1886) 3 Ch. D 637

    Purpose of pleadings in narrowing issues

  • Owners of Motor MV Lilian Vessel - Versus - Caltex Oil Limited

    Jurisdiction goes to the root; a court without jurisdiction must down its tools

  • National Social Security Fund Board of Trustees - Versus - Kenya Tea Growers Association & 14 Others, Civil Appeal No. 656 of 2022
    Civil Appeal No. 656 of 2022

    Proceedings without jurisdiction are marooned in nullity

  • Kenya Association of Manufacturers & 2 others - Versus - Cabinet Secretary Ministry of Environment and Natural Resources and 3 Others [2017] eKLR
    [2017] eKLR

    Role of courts in environmental governance and balancing competing interests

  • Wangari Maathai - Versus - Kenya Times Media Trust Limited [1989] eKLR
    [1989] eKLR

    Old regime restrictive locus standi, struck out for lack of standing

  • John Wekesa Khaoya - Versus - Attorney General, Petition No. 60 of 2012
    Petition No. 60 of 2012; [2013] eKLR

    Locus standi greatly enlarged by Articles 22 and 258

  • Maathai & 2 others versus City Council of Nairobi & 2 others

    Old regime position that only the Attorney General could sue for the public

  • Mui Coal Basin Local Community & 15 Others - Versus - Permanent Secretary Ministry of Energy and 17 Others [2015] eKLR
    [2015] eKLR

    Minimum elements/principles of adequate public participation

  • Independent Electoral and Boundaries Commission (IEBC) - Versus - National Super Alliance (NASA) Kenya & 6 others [2017] eKLR
    [2017] eKLR

    Article 10(2) values are justiciable and immediately enforceable

  • Robert N. Gakuru & Another - Versus - Governor Kiambu County & 3 others [2013] eKLR
    [2013] eKLR

    Public participation must be real, not illusory or a mere formality

  • Ken Kasinga - Versus - Daniel Kiplagat Kirui & 5 Others (2015) eKLR
    (2015) eKLR

    Where environmental procedures including public participation are not followed, the right to a clean environment is under threat

  • Kiriinya M. Mwenda - Versus - Runda Water Limited & Another (2014) eKLR
    (2014) eKLR

    Right to own, use and develop property is not absolute; must respect community standards

  • Kibos Distillers Limited & 4 others - Versus - Benson Ambuti Adega & 3 others [2020] eKLR
    [2020] eKLR

    Affirmation of right to clean environment and duty of implementing agencies to protect the environment

  • Reids Heweet & Company - Versus - Joseph AIR 1918 cal. 717
    AIR 1918 cal. 717

    Costs follow the event

  • Myres - Versus - Defries (1880) 5 Ex. D. 180
    (1880) 5 Ex. D. 180

    Costs follow the event; distributive reading of 'event'

  • Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC)
    2006 (2) SA 311 (CC)

    Reasonable opportunity for public to know and be heard on participation (quoted within Mui Coal Basin)

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.