Kassam & 13 others v Njoroge & 23 others (Petition E021 of 2024) [2024] KEELC 6174 (KLR)
The bottom line
#Nairobi neighbours failed to stop a Parklands highrise because they offered no evidence of actual environmental harm, despite winning on jurisdiction.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction and exhaustion of alternative remedies
The ELC has jurisdiction notwithstanding the statutory appeal routes under Section 129 EMCA and Section 78 PLUPA, because those remedies were no longer available (limitation had run) and the Petition raises constitutional claims not fully resolvable administratively
Relying on Abidha Nicholus (Supreme Court) the court applied a nuanced approach: alternative remedies bar constitutional relief only if adequate and available. The NET appeal was time-barred (60 days) and the Liaison Committee appeal (14 days) was long gone, with no showing the Petitioners knew of the decisions within those windows. Article 48 access to justice entitled them to approach the court directly.
Locus standi of the 1st Petitioner
The 1st Petitioner had locus standi; environmental standing is liberalised and he annexed authority from the other Petitioners
Articles 22 and 258 permit any person to sue on their own behalf, for a group or in the public interest, and Article 70 removes the need to show loss. Section 3(3) EMCA allows application to the ELC on behalf of a group or in the public interest. Authority to swear affidavits was annexed, so the objection failed.
Whether conservatory orders should issue
No prima facie case with likelihood of success was established; the misdescription of the parcel (LR 209/9316 vs Block 37/66/1-8) was immaterial and no evidence showed breach of environmental rights or licence conditions
The court found no ownership or boundary dispute and noted licenses were issued for the same property under its former reference. The Petitioners produced no evidence that noise exceeded legal limits, that walls were damaged, or that licence conditions were breached; the EIA report showed sewer connection. Applying Gatirau Peter Munya and Uhuru Secondary School principles, the conservatory relief could not issue.
Legal principles established
#- Availability of an alternative remedy does not necessarily bar constitutional relief; the adequacy of the alternative mechanism and access to justice must be assessed case by case
- The ELC retains original jurisdiction over environmental matters handled by NEMA unless ousted in a constitutionally compliant manner
- Locus standi in environmental suits is liberalised under Articles 22, 70 and 258 of the Constitution and Section 3(3) of EMCA; no showing of loss or injury is required
- Conservatory orders are public-law remedies distinct from interlocutory injunctions, granted on the inherent merit of the case bearing in mind the public interest
Court orders
#- 1.The Notice of Motion application dated 24th June 2024 is dismissed
- 2.Costs shall abide by the outcome of the Petition
- Jurisdiction invoked
- Articles 22, 42, 48, 70 and 258 of the Constitution; Section 3(3) of the Environmental Management and Co-ordination Act; Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kassam & 13 others v Njoroge & 23 others (Petition E021 of 2024) [2024] KEELC 6174 (KLR)", Case Analysis (2024). Petition No. E010 of 2024 (as per Notice of Motion dated 24th June 2024; parties cited as Petitioners/Respondents). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6174/eng@2024-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.