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ELCPartially AllowedPetition dated 2nd November 2023 (Notice of motion application dated 2nd November 2023)· [2024] KEELC 552 (KLR)

Nairobi West Hospital Limited v Mohamed & another; Nairobi City County (Interested Party) (Environment & Land Petition E005 of 2023) [2024] KEELC 552 (KLR)

Environment and Land Court
1 February 2024
2,796 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Nairobi West Hospital won temporary limits on a neighbouring construction: the developer can build up to 10 floors but not beyond, pending full trial.

What this practically means

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Executive summary

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The petitioner, Nairobi West Hospital, moved the Environment and Land Court by notice of motion dated 2nd November 2023 seeking conservatory orders to restrain the 1st and 2nd Respondents from constructing a 14-floor Avicena Towers Apartment block on Plot LR No 37/238/4, Gandhi Avenue, Nairobi West, adjacent to the hospital which operates a Category D rooftop helipad. The petitioner alleged the development lacked an EIA licence and aviation approvals, threatened the helipad's operation and Wilson Airport airspace, and infringed rights to property, a clean environment, emergency medical care and fair administrative action. The Respondents countered that all approvals - from Nairobi City County, NEMA, KAA and KCAA - had been obtained by October 2023, and argued that the court's jurisdiction was ousted by statutory appeal mechanisms under the Physical and Land Use Planning Act, the Civil Aviation Act and EMCA. The court framed two issues: ouster of jurisdiction and merit of the orders. Relying on Abidha Nicholus v Attorney General (Supreme Court) and William Odhiambo Ramogi, it held that a suit primarily enforcing fundamental rights is not barred by the doctrine of exhaustion, and that the involvement of three sectoral agencies excluded the doctrine. On the merits, the court found a prima facie case because the KCAA and NEMA licences were issued in October 2023 after construction began in June 2023 and the objecting petitioner was not heard. Finding it safer to preserve the helipad pending full determination, the court granted conservatory orders allowing construction up to the 10th floor (inclusive of the ground floor) only, with costs to the petitioner.

Key legal issues

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01

Whether the court's jurisdiction is ousted by sectoral dispute-resolution mechanisms (NET, County Liaison Committee, KCAA Tribunal)

Holding

Jurisdiction not ousted; the doctrine of exhaustion does not bar a petition primarily seeking enforcement of fundamental rights where multiple sectoral agencies are involved.

Reasoning

The court relied on the Supreme Court's decision in Abidha Nicholus v Attorney General, which confirmed the ELC's jurisdiction under Articles 22, 23(3) and 162(2)(b) of the Constitution to determine alleged constitutional violations, since tribunals like the NET lack that power. It adopted the High Court's reasoning in William Odhiambo Ramogi that rights-enforcement suits are not barred by exhaustion. As the matter involved three sectoral agencies, the ouster argument failed.

p. 5
02

Whether the petitioner demonstrated grounds warranting conservatory orders

Holding

A prima facie case was established because the licences were procured after construction began and the petitioner, having objected, was not heard before the licences issued; interim relief granted but limited to 10 floors.

Reasoning

Construction began in June 2023 as pleaded and not denied, yet the KCAA licence issued on 13/10/2023 and the NEMA licence on 19/10/2023, after the petitioner's objections dating back to 2022, with no evidence of a hearing. Since it could not be determined at the interlocutory stage whether a 33.6m building would interfere with the helipad, the court found it safer to preserve the helipad's use while permitting construction up to 10 floors, which the petitioner did not oppose.

p. 6

Legal principles established

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  • Where a suit primarily seeks to enforce fundamental rights and the constitutional violations claimed are not mere bootstraps, the suit is not barred by the doctrine of exhaustion.
  • Licences procured after commencement of construction and without affording an objector an opportunity to be heard establish a prima facie case for conservatory relief.

Court orders

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  1. 1.A conservatory order restraining the 1st and 2nd Respondents by themselves, agents, principals, servants, employees or otherwise from selling, advertising for sale, constructing and or carrying on construction beyond 10 floors (inclusive of the ground floor) of the Avicena Towers Apartment on Plot LR No 37/238/4, Gandhi Avenue, Nairobi West, pending hearing and determination of the Petition
  2. 2.Costs of the application to the Petitioner

Authorities

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Legislation

  • Constitution of KenyaArticles 22, 23, 23(3), 258, 40, 42, 43(2), 70, 162(2)(b), 165
  • Civil Aviation ActSections 56, 61, 69 (No 21 of 2013)
  • Kenya Airports Authority ActCap 395
  • Environment Management and Coordination ActSection 129
  • Physical and Land Use Planning ActSections 61, 61(3) and (4) (2019)
  • Fair Administrative Actions Act
  • Environment and Land Court ActSection 4(1)

Cases cited (5)

  • BOM Uhuru Secondary School v County Director of Education
    (2015) eKLR
  • Giella v Cassman Brown
  • Nguruman Limited v Jan Bonde Nielsen
    (2020) eKLR
  • William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslim for Human Rights & 2 others (Interested Parties)
    (2020) eKLR
  • Abidha Nicholus v the Attorney General and 7 others (Respondents) and Interested Parties
    Pet No E007 of 2023
Jurisdiction invoked
Articles 22, 23, 42, 70, 165 and 258 of the Constitution of Kenya

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, "Nairobi West Hospital Limited v Mohamed & another; Nairobi City County (Interested Party) (Environment & Land Petition E005 of 2023) [2024] KEELC 552 (KLR)", Case Analysis (2024). Petition dated 2nd November 2023 (Notice of motion application dated 2nd November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/552/eng@2024-02-01

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