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ELCPartially AllowedPetition dated 26th October 2023 (number not stated in judgment)· [2024] KEELC 6011 (KLR)

Nzomo (Suing on Behalf of Kunde Road Residents Welfare Association) v Ontime Real Estate Limited & 2 others (Environment & Land Petition E004 of 2023) [2024] KEELC 6011 (KLR)

Environment and Land Court
19 August 2024
9,770 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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A Nairobi residents' group failed to stop a Lavington townhouse development because it could not prove zoning rules or rights violations, winning only compensation for damaged grass.

What this practically means

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Executive summary

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This was a constitutional petition by the Kunde Road Residents Welfare Association challenging the change of user, development approval and EIA license granted to the 1st Respondent for the construction of four six-bedroom town houses on L.R No. 330/478, Kunde Road, Lavington, Nairobi. The Petitioner, an association of 69 households in a claimed low-density single-dwelling area, sought declarations of nullity, revocation of approvals, demolition of structures and replanting of trees, alleging inadequate public participation, breach of zoning, and infringement of rights to a clean environment and privacy. The 1st, 2nd and 3rd Respondents denied the allegations, asserting that notice was advertised and displayed, the area was zoned for the development, the project was medium risk requiring only a project report under the amended EIA Regulations, and that the Petitioner should have gone to the National Environmental Tribunal. Jurisdiction had been settled in the court's favour by a ruling of 14th March 2024. The court, A. Omollo J, found that the newspaper advert, gate notice and the meeting of 1st August 2020 satisfied public participation under section 58 PLUPA; that the Petitioner failed to prove the applicable zoning regulations; that a project report sufficed for a medium-risk project and Kibos Distillers was distinguishable; and that most alleged environmental and privacy violations were not proved. Only the damage to neighbours' grass by construction vehicles was proved, attracting Kshs.100,000 compensation and a grass restoration order. Prayers (a) to (g) were dismissed and, as the suit raised public interest issues, each party was ordered to bear its own costs.

Key legal issues

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01

Whether public participation requirements for change of user under section 58 PLUPA were met

Holding

Compliance was established: the developer advertised in the newspaper, pinned a notice at the property, and met the residents on 1st August 2020; the onus then shifted to the Petitioner to show the engagements were not qualitative, which it failed to discharge

Reasoning

The court held the advertisement and site notice satisfied the statutory notification requirement under section 58(7) and (8) PLUPA. The meeting of 1st August 2020 and the residents' letter of 17th August 2020 showed actual engagement. As affidavit evidence was untested by cross-examination, the court could not find the gate notice was falsified. The residents' objections were also not addressed to the CEC as the Act required.

p. 12
02

Whether the change of user was out of character with the neighbourhood zoning

Holding

The Petitioner failed to prove the applicable zoning regulations; neither the pamphlet relied on by the Respondents nor any zoning policy was properly proved, so the claim failed on the evidence

Reasoning

The court found the 'guide of Nairobi City Development Ordinance and Zones' produced by the 2nd Respondent was a mere pamphlet with no legal backing or proof of circulation to stakeholders, but equally the Petitioner produced no zoning policy supporting its claim that Kunde Road was single-dwelling Zone 5. The burden under sections 107-109 of the Evidence Act rested on the Petitioner, who did not discharge it.

p. 13
03

Whether an EIA project report (rather than a full study) and non-publication of questionnaires invalidated the EIA license

Holding

The project was medium risk; under the amended Regulations a project report suffices, the proviso to section 58(2) EMCA empowered NEMA to excuse a full study, and Kibos Distillers was distinguishable; no contravention occurred

Reasoning

Section 58(2) EMCA requires a full study report but the proviso allows NEMA to dispense with it; Legal Notice No. 32 of 2019 exempted medium risk projects from study reports. The court distinguished Kibos Distillers, which did not hold a study mandatory. Complaints that questionnaire respondents were not residents failed for want of affidavits or cross-examination to verify residency.

p. 15
04

Whether the development violated the right to a clean and healthy environment and privacy

Holding

Most alleged violations were not proved; only the temporary damage to neighbours' grass by construction vehicles was proved, attracting compensation of Kshs.100,000 and a restoration order

Reasoning

The court applied the Anarita Karimi Njeru standard: violations must be specifically pleaded and proved. The town houses were bungalow-form, not storeyed, so privacy and natural light were not breached; utilities strain was not evidenced; tree loss was not decisive since vegetation remained and could be replanted. Grass damage by heavy vehicles was a proved but temporary violation compensated in damages.

p. 17

Legal principles established

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  • The onus of facilitating public participation lies on the public officer or entity charged with the duty, and lack of a prescribed framework is no excuse
  • Where only an EIA project report (low/medium risk project) is required, the regulations do not require publication of the report in the media, and failure to publish does not contravene the law
  • A party alleging constitutional violation must plead and prove the infringed right, the constitutional provisions and the manner of contravention (Anarita Karimi Njeru principle)
  • A landowner's development rights under Article 40 must be balanced with neighbours' rights to privacy and a clean environment, and proof of violation rests on the person alleging it

Court orders

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  1. 1.Prayers (a) to (g) of the Petition dismissed
  2. 2.Order under prayers (h) and (j): award of compensation of Kshs.100,000 to the Petitioner
  3. 3.Direction that the 1st Respondent buy, plant and water the type of grass that was damaged near Edward Mwongo's gate and the immediate affected neighbours forthwith
  4. 4.Each party to meet their respective costs
Jurisdiction invoked
Articles 22, 47 and 70 of the Constitution; jurisdiction previously confirmed in a ruling delivered 14th March 2024

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nzomo (Suing on Behalf of Kunde Road Residents Welfare Association) v Ontime Real Estate Limited & 2 others (Environment & Land Petition E004 of 2023) [2024] KEELC 6011 (KLR)", Case Analysis (2024). Petition dated 26th October 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6011/eng@2024-08-19

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