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ELCAllowedEnvironment & Land Petition E026 of 2022· [2023] KEELC 17731 (KLR)

Ndambiri & another v Nairobi Metropolitan Services & 6 others; Harambee Sacco & Co-operative Society Limited & 6 others (Interested Parties)

Environment and Land Court
25 May 2023
6,695 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court halted a Parklands high-rise development, ruling residents' environmental rights outweighed developers' approved permits.

What this practically means

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Executive summary

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The Petitioners, owners and residents of properties on Taza Lane, City Park Drive, moved the court by Notice of Motion dated 22nd June 2022 seeking a temporary injunction compelling the Respondents to stop and enforce any further development on L.R. No. 209/7549, City Park Drive, Parklands, pending determination of their Petition. They alleged the demolition of houses and cutting of trees was done under a non-genuine authority, that a massive residential development was approved without a public sewer connection, and that waste was flowing into the Mathare River, infringing their rights to information, a clean environment and fair administrative action. The 1st Respondent and several Interested Parties raised preliminary objections: that the Petition lacked particularity under Anarita Karimi Njeru, and that the dispute was sub judice before the National Environmental Tribunal in NET Appeal No. E24 of 2021. The court held the Petition was pleaded with sufficient particularity. On jurisdiction, it found the NET appeal had been determined and the subsequent appeal withdrawn, and that the causes of action, parties and issues differed from the Petition, so the court had jurisdiction under Article 162(2)(b) and section 13 of the ELC Act. On the injunction, the court found a prima facie case based on NMS letters disowning the demolition permit, NCA suspension orders and findings of the Commission on Administrative Justice; irreparable environmental harm not quantifiable in money; and special circumstances justifying a mandatory injunction. The application was allowed with an order of temporary injunction and costs in the Petition. An amended application filed without leave after the ruling was reserved was disregarded.

Key legal issues

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01

Whether the Petition offends the Anarita Karimi Njeru principle of particularity

Holding

The Petition satisfied the principle of specificity; the violated and threatened rights were clearly pleaded.

Reasoning

The Petitioners alleged infringement of the right of access to information, right to a clean and healthy environment under Article 42, and fair administrative action under Article 47, and stipulated the facts grounding the Petition. The court found the facts and issues clear, including the allegedly violated and threatened rights and freedoms, so the particularity requirement was met.

02

Whether the court lacks jurisdiction given the pending NET Appeal No. E24 of 2021 (sub judice/avoidance)

Holding

The court has jurisdiction; the NET appeal was determined and withdrawn, and the causes of action and parties differ from this Petition.

Reasoning

The NET appeal was against NEMA's failure to monitor and audit the development, whereas this Petition challenges the actions and inactions of NMS and county planning officers regarding development approvals. The causes of action are against different entities raising different issues, so Section 6 of the Civil Procedure Act does not bar the Petition.

p. 9
03

Whether a mandatory interlocutory injunction should issue

Holding

Yes; the Petitioners established a prima facie case, irreparable environmental harm, and special circumstances justifying a mandatory injunction.

Reasoning

Documents from NMS disowning the demolition permit, NCA suspension orders and the Commission on Administrative Justice findings established a prima facie case. Environmental harm such as waste seeping into Mathare River cannot be quantified in money, satisfying irreparable harm under the precautionary principle, and the magnitude of the development constituted special circumstances.

Legal principles established

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  • A preliminary objection consists of a point of law which, if argued, may dispose of the suit.
  • Constitutional petitions must plead with reasonable precision the provisions infringed and the manner of infringement.
  • A court's jurisdiction flows only from the Constitution or legislation.
  • Mandatory injunctions at interlocutory stage require special circumstances and a higher degree of assurance.

Court orders

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  1. 1.An order of temporary injunction compelling the 1st to 7th Respondents jointly and severally to stop and enforce any further development on L.R. No. 209/7549 City Park Drive, Parklands by the 1st to 5th Interested Parties, their agents and/or servants or any other person pending the hearing and determination of the Petition.
  2. 2.Costs shall be in the Petition.
Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act

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, "Ndambiri & another v Nairobi Metropolitan Services & 6 others; Harambee Sacco & Co-operative Society Limited & 6 others (Interested Parties)", Case Analysis (2023). Environment & Land Petition E026 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17731/eng@2023-05-25

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