Nzomo (Suing on his own behalf and on behalf of Kunde Road Residents Welfare Association) v Ontime Real Estate Ltd & 2 others (Environment & Land Petition E004 of 2023) [2024] KEELC 1572 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear constitutional challenges to development approvals even when environmental statutes provide other dispute routes.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is res judicata given the prior judgment in Appeal Ref. No. NCCG/NMS/PLUPLC/019
The Petition is not res judicata because the appeal before the County Physical Planning Liaison Committee was struck out for being filed out of time and was not decided on merit.
The court noted that the Petitioner had lodged an appeal before the NBI County Physical Planning Liaison Committee, which was struck out for non-compliance with statutory timelines. Res judicata requires a decision on merit; since the Liaison Committee never adjudicated the merits, no merit judgment in Appeal No. NCCG/NMS/PLUPLC/019 barred a subsequent suit. The court relied on the principle from D.T Dobie (K) v Muchina that striking out is a draconian step reserved for hopeless matters.
Whether the doctrine of exhaustion under EMCA and PLUPA ousts the court's jurisdiction
EMCA No. 3 of 1999 and PLUPA No. 13 of 2019 do not oust the ELC's jurisdiction where the claim is based on alleged breaches of constitutional rights; the Petition raises constitutional issues (harm to the environment, public participation under Article 10, rights under Article 184) that only this court can determine.
Applying the Supreme Court's decision in Abidha Nicholus v Attorney General, the court held that neither the NET, EPRA nor EPT has jurisdiction to determine alleged violations of the Constitution. It also relied on Section 9(4) of the Fair Administrative Actions Act permitting exemption from exhausting alternative remedies in the interest of justice, and the principle that petitions genuinely enforcing fundamental rights are not barred by the exhaustion doctrine. Merit in the alleged breaches is a matter for the full hearing.
Whether filing a single petition challenging two sets of development approvals constituted abuse of court process
No abuse of court process arose from filing a single petition because the cause of action arose from a single transaction.
The 1st Respondent argued the Petitioner abused the process by using one petition to challenge approvals under both EMCA and PLUPA and by bypassing statutory dispute mechanisms. The court found the cause of action arose from a single transaction, making the consolidated petition unobjectionable. Further, since the Liaison Committee appeal was struck out for time-bar, the Petitioner was left no option but to file the petition.
Legal principles established
#- EMCA and PLUPA do not expressly oust the jurisdiction of the ELC in respect of claims based on alleged breaches of constitutional rights.
- A petition is not res judicata where the prior proceedings were struck out on a procedural ground rather than decided on merit.
Court orders
#- 1.The 1st Respondent's notice of motion application dated 23rd November 2023 is dismissed
- 2.The 2nd Respondent's Preliminary Objection dated 6th November 2023 is dismissed
- 3.The 3rd Respondent's Preliminary Objection is dismissed
- 4.Costs of the application and both Preliminary Objections awarded to the Petitioner
- Jurisdiction invoked
- Article 162(2)(b) and Article 165(3) of the Constitution; Section 4(1) of the Environment and Land Court Act
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.
- Vaitha & 14 others v County Government of Mombasa & 3 others (Constitutional Petition E010 of 2024) [2025] KEELC 824 (KLR)[2025] KEELC 824 (KLR)21 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Nzomo (Suing on his own behalf and on behalf of Kunde Road Residents Welfare Association) v Ontime Real Estate Ltd & 2 others (Environment & Land Petition E004 of 2023) [2024] KEELC 1572 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1572/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.