Onyera & 8 others (Suing on their own Behalf and on Behalf of the Residents and Homeowners of Greenpark Estate) v Superior Homes Kenya Limited & 3 others; Greenpark Estates Management (GEMS) Limited (Interested Party) (Environment & Land Petition E007 of 2023) [2024] KEELC 329 (KLR)
The bottom line
#Kenya's Environment and Land Court stopped a petrol station next to homes at Green Park Estate, confirming residents can go straight to court over environmental rights.
What this practically means
#Executive summary
#Key legal issues
#Exhaustion of administrative remedies
The petitioners were not obligated to exhaust administrative remedies under EMCA, the Energy Act or the Physical and Land Use Planning Act because the petition raises constitutional violations that transcend the jurisdiction of the statutory tribunals.
The court reviewed the Supreme Court's decision in Abidha Nicholas and adopted the effective-remedy approach: where a petitioner seeks redress for violations of constitutional rights, the exhaustion principle is inapplicable. The jurisdictions of NET, the Energy and Petroleum Tribunal and the County Liaison Committee are too limited to determine constitutional questions of environmental and property rights. The constitutional claims here go to the core of the dispute and are not mere bootstraps.
Sub judice
The suit is not sub judice as the Energy and Petroleum Tribunal has no jurisdiction to determine the constitutional questions raised in this petition.
Section 6 of the Civil Procedure Act requires the same matter in issue between the same parties in a previously instituted suit before a competent court. The petitioners are not parties to EPA Case No. E018 of 2023, and the Tribunal lacks jurisdiction over the constitutional questions. Having found this court seized of exclusive jurisdiction over the environmental rights claims, the elements of sub judice were not proved.
Conservatory orders
The applicants demonstrated a prima facie case, real danger of irreparable harm from the petrol station's proximity to homes, risk of the petition being rendered nugatory, and public interest favouring conservation.
The construction being less than 10 metres from residential houses was undisputed; a petrol station presents an ever-present fire risk acknowledged in the EIA report. The station was not in the master plan and would lower property values. With 500 houses affected, the risk extends beyond the petitioners. Public interest in properly regulated development between home owners, developers and regulators tilts in favour of the orders.
Right to information
The petitioners are entitled to the documents sought, being information on administrative decisions that materially affect them.
Under Section 6 of the Fair Administrative Action Act, a person adversely affected by administrative action is entitled to information needed to facilitate appeal or review. The 2nd respondent did not deny possession of the documents, and the 4th respondent did not enter appearance or respond, and was therefore deemed not to object.
Legal principles established
#- Where a dispute relates to violation of constitutional rights relating to the environment and land, the ELC's original jurisdiction is not ousted by the exhaustion principle.
- A person materially or adversely affected by an administrative action is entitled to be supplied with information necessary to facilitate appeal or review.
Court orders
#- 1.A conservatory order restraining the 1st respondent from constructing and/or carrying on with the construction of a petrol filing station at Arcadia Mall situated on L.R. No. 27409 within Green Park Estate, Stoney Athi, Machakos County, pending the hearing and determination of the petition
- 2.An order compelling the respondents to supply the petitioners with all the relevant information and documents sought vide the letters dated 25th May 2023 and 11th October 2023
- 3.Costs of the application awarded to the petitioners
- 4.Dismissal of the 1st and 2nd respondents' preliminary objections dated 24th November 2023 and 29th November 2023 with costs to the petitioners
- Jurisdiction invoked
- Articles 70, 162(2)(b) and 165(3)(b) and (5)(b) of the Constitution as read with Section 13(3) of the Environment and Land Court Act, No. 19 of 2011
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.
- Zizu Investments Limited v National Environmental Authority & 3 others (Environment and Land Constitutional Petition E024 of 2024) [2026] KEELC 5108 (KLR)[2026] KEELC 5108 (KLR)29 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Onyera & 8 others (Suing on their own Behalf and on Behalf of the Residents and Homeowners of Greenpark Estate) v Superior Homes Kenya Limited & 3 others; Greenpark Estates Management (GEMS) Limited (Interested Party) (Environment & Land Petition E007 of 2023) [2024] KEELC 329 (KLR)", Case Analysis (2024). Notice of Motion dated 14th November 2023 (Constitutional Petition, Environment and Land Court, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/329/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.