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ELCDismissedPetition No. E010 of 2024 (as per Notice of Motion dated 24th June 2024; parties cited as Petitioners/Respondents)· [2024] KEELC 6174 (KLR)

Kassam & 13 others v Njoroge & 23 others (Petition E021 of 2024) [2024] KEELC 6174 (KLR)

Environment and Land Court
19 September 2024
7,825 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioners, owners and residents of neighbouring properties on City Park Drive, Parklands, moved the Environment and Land Court by Notice of Motion dated 24th June 2024 seeking conservatory orders of temporary injunction to halt construction of a 68-unit highrise on Nairobi/Block 37/66 and 37/66/1-8 by the 12th Respondent under a joint venture with the 1st to 11th Respondents (registered sectional owners), and to compel the 15th to 24th Respondents (Nairobi City County and NEMA officials) to stop the development. They contended the construction proceeded without valid approvals, that licences referred to a non-existent parcel (LR No. 209/9316), and that noise, dust and excavation beacon-to-beacon infringed their rights to life and a clean and healthy environment. The Respondents raised preliminary objections on exhaustion of remedies under Section 78(b) PLUPA and Section 129 EMCA, and challenged the Petitioners' locus standi; the 12th Respondent also alleged forum shopping, citing a withdrawn earlier Petition. Framing two issues - jurisdiction and entitlement to conservatory orders - the court, applying Abidha Nicholus, held that the statutory appeal remedies were time-barred and inadequate, and that Articles 48 and 70 conferred standing. On the merits it found that nothing turned on the misdescription of the parcel, and that the Petitioners adduced no evidence that noise exceeded legal limits, walls were damaged, or licence conditions breached. Finding no prima facie case with likelihood of success, the court dismissed the application, with costs to abide the outcome of the Petition.

Key legal issues

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01

Jurisdiction and exhaustion of alternative remedies

Holding

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

Reasoning

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.

p. 13
02

Locus standi of the 1st Petitioner

Holding

The 1st Petitioner had locus standi; environmental standing is liberalised and he annexed authority from the other Petitioners

Reasoning

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.

p. 13
03

Whether conservatory orders should issue

Holding

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

Reasoning

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

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  • 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

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  1. 1.The Notice of Motion application dated 24th June 2024 is dismissed
  2. 2.Costs shall abide by the outcome of the Petition

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 22(1), 42, 48, 70, 258
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Sections 3, 4, 13, 23
  • Environmental Management and Co-ordination ActSections 3, 3(3), 10, 125, 129, 129(1)(a)
  • Environment and Land Court ActSections 3 and 10
  • Physical and Land Use Planning Act, 2019Sections 56, 57, 58, 61(3), 78, 78(b)
  • Sectional Properties Act(sale and transfer of sectional units)
  • Nairobi City County Development Control Policy 2021(challenged as lacking legal effect)
  • National Environment Tribunal Procedure RulesRule 7
  • EMCA (Noise and Excessive Vibrations Pollution Control) Regulations 2009(licence condition)

Cases cited (18)

  • David Alfred Njeru Ndambiri & Another vs Nairobi Metropolitan Services and 13 Others
    [2024] eKLR
  • Abidha Nicholus vs the Attorney General & 7 Others; National Environment Complaints Committee & 5 others
    [2023] KESC 113 (KLR)
  • Centre for Human Rights and Democracy & Another vs the Judges and Magistrates Vetting Board & 2 Others
    [2012] eKLR
  • Damour Florian Emmeric vs Director of Immigration Services
    (2022) eKLR
  • Gatirau Peter Munya vs Dickson Mwenda Githinji & 2 Others
    [2014] eKLR
  • Judicial Service Commission vs Speaker of the National Assembly & Another
    [2013] eKLR
  • Chebii Kipkoech vs Barnabas Tuitoek Bargoria & Another
    [2019] eKLR
  • Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others
    [2016] eKLR
  • Mukisa Biscuits Manufacturing Ltd vs West End Distributors
    (1969) EA 696
  • Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 Others
    [2014] eKLR
  • S v. Mhlungu
    1995 (3) SA 867 (CC)
  • Ashwander v. Tennessee Valley Authority
    297 U.S. 288, 347 (1936)
  • Bia Tosha Distributors Ltd v Kenya Breweries Ltd & 6 Others
    (Pet.No.15 of 2020) [2023] KESC 14(KLR)
  • William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties)
    [2020] eKLR
  • Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others
    [2018] eKLR
  • Board of Management of Uhuru Secondary School vs City County Director of Education and 2 Others
    (2015) eKLR
  • Invesco Assurance Co. Ltd vs MW (Minor suing thro' next friend and mother (HW)
    [2016] eKLR
  • Mrao Ltd vs First American Bank of Kenya and 2 Others
    (2003) KLR 125
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.