Kassam & 12 others v Exotic Real Estates Limited & 12 others (Petition E002 of 2024) [2024] KEELC 6022 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on exhaustion of statutory remedies (exhaustion doctrine and Pullman doctrine) defeated the court's jurisdiction
The preliminary objection failed. Following the Supreme Court in Abidha Nicholus, the ELC retains original jurisdiction unless ousted in a constitutionally compliant manner, and allegations of constitutional rights violations (clean environment, information, dignity) are not barred by alternative statutory remedies
The court adopted the Supreme Court's reconciliation of the two schools of thought: EMCA and PLUPA do not expressly oust the ELC's jurisdiction, and an available alternative remedy does not necessarily bar constitutional relief. Exceptions to the exhaustion doctrine per William Odhiambo Ramogi also apply where constitutional interpretation or important constitutional values are at stake. Whether the pleaded violations are made out can only be determined after a full hearing.
Whether conservatory orders of temporary injunction should issue against the developers and regulators
Yes, in modified form. The applicants established a prima facie case based on dust pollution and night construction in a residential area; the court granted conservatory orders limiting construction hours and requiring dust abatement rather than a blanket stop
Applying the principles in Board of Management of Uhuru Secondary School and Mrao v First American Bank, the court found an arguable infringement of the right to a clean and healthy environment. The 5th Respondent admitted no development permission had issued, yet approvals and licences existed; the complaints (dust, night works) are capable of remedy while construction continues, so proportionate conditional orders were granted.
Legal principles established
#- The doctrine of exhaustion does not oust the ELC's jurisdiction where the petition pleads infringement of constitutional rights such as the right to a clean and healthy environment; alternative remedies do not necessarily bar constitutional relief
- The merit of a petition cannot be determined by way of a preliminary objection
- Owners of licences have a duty to ensure their development minimises negative effects on the environment and neighbours; conditions in licences are enforceable
Court orders
#- 1.A conservatory order of temporary injunction compelling the 5th, 11th and 13th Respondents and their officers to take immediate measures to prevent or discontinue any act or omission deleterious to the environment on L.R. No. 209/20729, in particular to ensure construction works are not undertaken outside the hours of 6am to 6pm until the petition is heard and determined
- 2.A conservatory order of temporary injunction stopping the 1st, 2nd, 3rd and 4th Respondents from excavating and/or undertaking any development on L.R. No. 209/20729 until they put up dust covers under the supervision of NEMA, with a report to be filed in court upon compliance, whereupon the temporary orders shall be lifted
- 3.Costs of the application in the cause
- 4.The preliminary objection raised by the 5th Respondent dismissed
- Jurisdiction invoked
- Article 165(3)(b) of the Constitution (petition alleging violation of rights under articles 10, 26, 35 and 42); rule 3, 4, 13 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013; section 3 of EMCA and section 13 of ELCA
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kassam & 12 others v Exotic Real Estates Limited & 12 others (Petition E002 of 2024) [2024] KEELC 6022 (KLR)", Case Analysis (2024). Petition dated 2nd February 2024 (Constitutional Petition, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6022/eng@2024-08-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.