Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the extract (Constitutional Petition, Environment and Land Court, Nairobi)· [2024] KEELC 6205 (KLR)

Ndambiri & another v Nairobi Metropolitan Services & 6 others; Harambee Sacco & Co-operative Society Limited & 6 others (Interested Parties) (Environment & Land Petition E026 of 2022) [2024] KEELC 6205 (KLR)

Environment and Land Court
23 September 2024
7,718 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

#

Kenya's Environment and Land Court refused to lift orders halting a Parklands development, ruling the applicants were re-litigating settled issues.

What this practically means

#

Executive summary

#
The 2nd and 3rd Interested Parties filed a Notice of Motion dated 19th June 2023 seeking discharge, variation or setting aside of conservatory orders issued on 25th May 2023 restraining further development on L.R 209/7549 City Park Drive, Parklands. They contended that the Petitioners misled the Court, that the development valued at approximately Kshs 600 million and 70% complete had all requisite approvals (NEMA EIA licence, NMS construction permit, NCA authorization, NCCG demolition permit), and that the orders exposed them to disproportionate harm. The Petitioners opposed, arguing the Motion was not based on new evidence, error apparent on the record or sufficient reason; that it was a knee-jerk reaction to contempt proceedings; and that the 3rd Interested Party lacked authority to swear the affidavit. The Court framed two issues: competence of the Motion and whether the orders should be varied or discharged. It held that reliance on the Civil Procedure Act and Rules was not erroneous since the Mutunga Rules are silent on the form of review, applying Article 159(2)(d) and Rule 3(8). Contentions over company directorship and ownership of the suit property were deferred to the main Petition. Adopting the view that 'any other sufficient reason' need not be analogous to the other Order 45 grounds, the Court found the claims of misrepresentation amounted to an attempt to re-litigate the earlier Motion, and that any erroneous conclusion was a ground of appeal, not review. The Motion was also filed after unexplained 25-day delay. The Motion was dismissed with costs on 23rd September 2024.

Key legal issues

#
01

Competence of the Motion for invoking Civil Procedure Rules in a constitutional petition

Holding

The reliance on the Civil Procedure Rules was not erroneous; the Mutunga Rules are silent on the form of review, and procedural technicalities should not defeat constitutional enforcement

Reasoning

The Court held that although a constitutional petition is governed by the Mutunga Rules, Rule 25 grants jurisdiction to discharge, vary or set aside conservatory orders without specifying the form. Where there is a lacuna, the Civil Procedure Rules may apply, supported by Article 159(2)(d) and Rule 3(8). Failure to cite the correct provision is not fatal.

p. 8
02

Locus of the 3rd Interested Party to swear the affidavit and company ownership

Holding

The question of company directorship, ownership and suit property ownership was deferred to the main Petition

Reasoning

The Court noted serious contentions on the co-existence of Sustainable Development Solutions Limited and Property Sustainability and Services Solution Limited despite the purported name change, touching on ownership of the suit property. Determining these at the application stage would amount to determining the substantive Petition prematurely.

p. 9
03

Whether sufficient cause existed to vary, discharge or set aside the conservatory orders

Holding

No sufficient cause was established; the claims of misrepresentation sought to re-litigate the earlier Motion, and any error would be a ground of appeal

Reasoning

The Court found that the material relied on was before it when the 25th May 2023 ruling was made; the 2nd and 3rd Interested Parties had filed only a Preliminary Objection, leaving the Petitioners' averments uncontroverted. Claims of misrepresentation were an attempt to have a second bite at the cherry, and dissatisfaction with the Court's conclusion lay in appeal, not review. The application was also filed after unexplained delay of about 25 days.

p. 14

Legal principles established

#
  • The phrase 'any other sufficient reason' in Order 45 Rule 1 need not be analogous to the grounds of discovery of new evidence or error apparent on the face of the record
  • Where the Mutunga Rules are silent on the form of an application to set aside conservatory orders, recourse may be had to the Civil Procedure Act and Rules
  • An erroneous view of evidence or law is a ground of appeal, not a ground for review

Court orders

#
  1. 1.The 2nd and 3rd Interested Parties' Motion dated 19th June 2023 is dismissed with costs

Authorities

#

Legislation

  • Constitution of KenyaArticle 159; Article 22(3); Article 259
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A, 80
  • Civil Procedure Rules, 2010Order 45 Rule 1; Order 51 Rule 1
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3(8), 4, 23, 25
  • Environmental Management and Co-ordination Act (EMCA)Section 58
  • Physical and Land Use Planning Act (PLUPA)Sections 57, 58
  • Environment and Land Court ActSection 8
  • Legal Notices No. 31 and 32 of 30th April 2019Classification of medium risk projects
  • Environmental (Impact Assessment and Audit) Regulations, 2003Not specified

Cases cited (31)

  • Kenya Electricity Transmission Company Limited vs Kibotu Limited
    [2019] eKLR
  • Republic vs National Environment Tribunal; National Environment Management Authority & 4 Others ex-parte Erdemann Properties Limited
    ELC Machakos JR 75 of 2019
  • Pop-In (Kenya) Ltd & 3 Others vs Habib Bank AG Zurich
    [1990] eKLR
  • Evans Bwire vs Andrew Nginda
    [2000] LLR 8340
  • Hosea Nyandika Mosagwe & 2 Others vs County Government of Nyamira
    [2022] eKLR
  • Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Bloggers Association of Kenya vs Attorney General & 5 Others
    [2018] eKLR
  • Marion Njeri Njoroge vs James Karanja Nyoro & Another
    [2019] eKLR
  • Deynes Mureithi & 4 Others vs Law Society of Kenya & Another
    [2016] eKLR
  • Peter Ochara Anam & 3 Others vs CDF Board & 4 Others
    Constitution Petition No. 3 of 2010 [2011] eKLR
  • Karl Wehner Claasen vs Commissioner of Lands & 4 others
    [2019] eKLR
  • Abdisalam Hassan Ismail & 2 Others vs Kenya Railways Corporation & 3 Others
    [2015] eKLR
  • Vallerie Namtilu Wafula & Another vs Kenya National Union of Teachers (KNUT) & 2 Others
    [2012] eKLR
  • Hermanus Phillipus Steyn vs Giovanni Gnecchi-Ruscone
    [2013] eKLR
  • Benjoh Amalgamated Limited & another vs Kenya Commercial Bank Limited
    [2014] eKLR
  • Francis Origo & another vs Jacob Kumali Mungala
    [2005] eKLR
  • Nasibwa Wakenya Moses vs University of Nairobi & Another
    [2019] eKLR
  • Sadar Mohamed vs Charan Singh and Another
    [1959] EA 793
  • Assets Recovery Agency vs Charity Wangui Gethi & 3 others
    [2020] eKLR
  • Kuria v Shah
    [1990] KLR 316
  • Official Receiver and Liquidator vs Freight Forwarders Kenya Ltd
    [2005] eKLR
  • Wangechi Kimita v Wakibiru
    (1982-88) 1 KAR 978
  • Pancras T. Swai vs Kenya Breweries Limited
    [2014] eKLR
  • Shanzu Investments Limited v. Commissioner for Lands
    Civil Appeal No. 100 of 1993
  • Wangechi Kimata & Another vs Charan Singh
    C.A. No. 80 of 1985 (unreported)
  • Parimal vs Veena Bharti
    Civil Appeal 1467 of 2011 (2011)
  • Anarita Karimi Njeru vs Republic
    [1979] eKLR
  • Blue Thaitian SRL (Owners of the Motor Yacht 'Sea Jaguar') vs Alpha Logistics Services (EPZ) Limited
    (Civil Appeal (Application) E012 of 2020) [2022] KECA 1240 (KLR)
  • Faustina Njeru Njoka vs Kimunye Tea Factory Limited
    [2022] eKLR
  • Abasi Balinda vs Fredrick Kangwamu and Another
    [1963] 1 EA 557 (HCU)
  • Abdalla & 6 Others vs Khansa Developers Limited & 3 Others
    (Constitutional Petition 16 of 2022) [2024] KEELC 3667 (KLR)
Jurisdiction invoked
Article 159 of the Constitution; Section 80 of the Civil Procedure Act; Order 45 Rule 1 Civil Procedure Rules; Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ndambiri & another v Nairobi Metropolitan Services & 6 others; Harambee Sacco & Co-operative Society Limited & 6 others (Interested Parties) (Environment & Land Petition E026 of 2022) [2024] KEELC 6205 (KLR)", Case Analysis (2024). Not stated in the extract (Constitutional Petition, Environment and Land Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6205/eng@2024-09-23

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