Kimani & another v Superior Homes (Kenya) PLC & another (Environment & Land Case E053 of 2023) [2024] KEELC 14 (KLR)
The bottom line
#A Machakos court stopped a developer from building apartments in Green Park Estate because buyers were promised single dwelling houses, requiring genuine public participation.
What this practically means
#Executive summary
#Key legal issues
#Whether the court had jurisdiction notwithstanding the exhaustion doctrine under Section 80 of the Physical and Land Use Planning Act and Section 129 of EMCA
The preliminary objection failed because it was premised on disputed facts; the 1st defendant did not prove the existence of appealable decisions by the 2nd defendant or NEMA.
A preliminary objection must be a pure point of law on undisputed facts. The applicants denied the existence of decisions by the 2nd defendant and NEMA, reporting only what appeared on a signboard. The 1st defendant, bearing the burden of proof, failed to produce the alleged decisions or file a defence from which undisputed facts could be deduced, so the objection was based on disputed facts and was dismissed.
Whether the applicants established a prima facie case for temporary injunction
Yes; the agreements were premised on approved sectional plans for single dwelling houses, and the 1st defendant did not show the apartment construction complied with the approved plans.
The applicants purchased maisonettes on the strength of representations and approved plans; the 1st defendant never denied that constructing three-floor apartments would deviate from those plans. The less than one day's notice for the consultative meeting cast doubt on whether public participation in changing the approved plans ever occurred, warranting further interrogation.
Irreparable injury and balance of convenience
The applicants stood to suffer irreparable loss not compensable in damages, and the balance of convenience favoured them since no apartments yet existed on the suit property.
The applicants deponed that apartments would affect water supply, sewerage, air circulation, serenity, natural view and their right to a clean and healthy environment. As the estate had over 500 houses and no apartments on the suit property, halting construction preserved the position pending full hearing.
Legal principles established
#- A preliminary objection based on disputed facts fails; the party asserting the existence of appealable decisions bears the burden of producing them.
- Public participation under Article 10(2)(a) binds both state and non-state actors in decision making.
Court orders
#- 1.An order of temporary injunction restraining the 1st defendant/respondent, their servants, employees and/or agents from continuing to excavate, construct or erect buildings within LR. No. 27409, Green Park Estate, Cluster 5, Mavoko Sub-County, Machakos County, which do not comply with the original development plan of the houses sold to the applicants and the estate which is for single dwelling houses until this suit is heard and determined.
- 2.The costs of the application shall be borne by the 1st defendant/respondent.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Section 13(3) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani & another v Superior Homes (Kenya) PLC & another (Environment & Land Case E053 of 2023) [2024] KEELC 14 (KLR)", Case Analysis (2024). ELC Case, Machakos (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14/eng@2024-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.