Nairobi West Hospital Limited v Mohamed & another; Nairobi City County (Interested Party) (Environment & Land Petition E005 of 2023) [2024] KEELC 552 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the court's jurisdiction is ousted by sectoral dispute-resolution mechanisms (NET, County Liaison Committee, KCAA Tribunal)
Jurisdiction not ousted; the doctrine of exhaustion does not bar a petition primarily seeking enforcement of fundamental rights where multiple sectoral agencies are involved.
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.
Whether the petitioner demonstrated grounds warranting conservatory orders
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.
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.
Legal principles established
#- 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
#- 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.Costs of the application to the Petitioner
- Jurisdiction invoked
- Articles 22, 23, 42, 70, 165 and 258 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.