Dharani v Canaan Developers Limited & 2 others; County Government of Nairobi & 2 others (Interested Parties)
The bottom line
#A Nairobi court halted construction on Kileleshwa land because the developer could not show it had the required environmental licence and county approvals.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC had jurisdiction over the dispute
The court held it is seized of jurisdiction because no EIA licence or development approval had been shown to have been issued; the preliminary objection was dismissed.
The court reasoned that had NEMA issued an EIA licence, the applicant's recourse would lie under Section 129 of EMCA before the National Environment Tribunal, and had the Planning Authority granted development approval, complaints would go to the County Physical Planning Liaison Committee. Since the 1st and 2nd Respondents, in whose custody any licences would be, failed to avail any licence or approval, no statutory dispute mechanism was triggered, leaving the ELC seized of jurisdiction under Articles 42 and 70.
Whether the suit is defeated by the doctrine of exhaustion
The doctrine of exhaustion was held inapplicable because no decisions had been made by the designated statutory bodies.
The court acknowledged the doctrine as sound, enabling specialised tribunals to have the first bite and anchoring judicial deference, but held it can only be invoked where it is appropriate, available and efficacious. Since no decisions, licences or approvals had been made or issued by NEMA or the Planning Authority, there was no statutory decision to exhaust remedies against, and the applicant was entitled to invoke Articles 42 and 70 directly in the ELC.
Whether the applicant met the threshold for conservatory/injunctive orders
The applicant demonstrated a prima facie case with a likelihood of success warranting conservatory orders pending determination of the suit.
Applying the principles in Board of Management of Uhuru Secondary School, the court found the applicant had shown a prima facie breach of the right to a clean and healthy environment, that the impugned construction would have adverse impacts on the applicant and neighbouring community, and that no EIA study report had been availed. Denial of the orders would expose the applicant to threatened violation of Article 42 rights.
Legal principles established
#- A court's jurisdiction flows from the Constitution or legislation or both, and it cannot expand its jurisdiction through judicial craft or innovation.
- Where facts are especially within the knowledge of a party, the burden of proving them lies on that party.
- The doctrine of exhaustion applies only where the statutory bodies have actually made decisions capable of being challenged before the designated statutory mechanisms.
- Where no EIA licence or development approval has been issued, an applicant may directly approach the Environment and Land Court to vindicate the right to a clean and healthy environment under Articles 42 and 70.
- An applicant for conservatory orders must demonstrate a prima facie case with a likelihood of success and real danger of prejudice if the order is not granted.
Court orders
#- 1.The Application dated the 2nd August 2023 is allowed in terms of prayers (iv) and (v) thereof.
- 2.Injunctive/conservatory orders restraining the 1st and 2nd Respondents from proceeding with development and/or construction on Land Reference Number 205/76 (original No. 205/1615) pending the hearing and determination of the main suit.
- 3.The Officer Commanding Kileleshwa Police Station or any nearer police station to assist in compliance of the orders.
- 4.Costs of the application to abide the outcome of the suit.
- Jurisdiction invoked
- Article 162(2) of the Constitution read with the Environment and Land Court Act, 2011 (Section 13(2) and (3)) and Section 3(3) of EMCA, 1999; Articles 42 and 70 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dharani v Canaan Developers Limited & 2 others; County Government of Nairobi & 2 others (Interested Parties)", Case Analysis (2023). Environment & Land Case E042 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19881/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.