Kassam & 12 others v JW Archplans Limited & 16 others (Environment & Land Petition E007 of 2024) [2024] KEELC 7212 (KLR)
The bottom line
#Kenya's Environment and Land Court halted further construction on two Parklands developments after finding regulators approved one thing while developers built more.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioners established a prima facie case warranting conservatory orders
Yes. The court found a prima facie case with a likelihood of success, noting irregularities including construction exceeding the licensed 98 units (112 constructed), floors built beyond approved levels, and unclear relationships among the proponents and licensees.
The court observed that the EIA licences were issued to Shantilal Raychand Shah and Xeonics Limited while the notice boards and site indicated Zamir Realtors Limited as developer, and that the provenance of the properties from Berkshire Properties Limited did not match the licensees. NEMA's Environmental Restoration Order over excess units was unexplained. NCA found 16th and 18th floors built despite 15-floor approvals. These unresolved irregularities supported a prima facie case and public interest in preservation.
Whether the developments encroached on riparian land
No. Encroachment was refuted by NEMA and the Water Resources Authority following site visits; a 10-metre riparian reserve was pegged and beacons remained intact.
The Water Resources Authority marked and pegged a 10-metre riparian reserve in 2021, and subsequent inspections in March 2023 and March 2024 found compliance, intact beacons and no encroachment. The 4th Respondent also asserted the properties were more than fifty metres from the river, well beyond the ten-metre minimum. The court accepted these regulatory findings against the Petitioners' allegation.
Whether the alleged blocking of light and air established a violation
Not at this stage; access to light is an easement requiring twenty years' enjoyment, and the Petitioners produced no evidence of the age of their building or duration of light enjoyment.
The court held that light and air easements under Section 32 of the Limitation of Actions Act mature only after twenty years of peaceful, open enjoyment as of right. The Petitioners did not show the age of their building or that light had been enjoyed for twenty years, so the claim could only be determined at the full hearing of the Petition.
Legal principles established
#- Conservatory orders are public-law remedies granted on the merits of a case, bearing in mind public interest and constitutional values, and are not tied to the private-law tests of irreparable harm or probability of success.
- A conservatory order preserves the subject matter of the suit pending hearing.
- The right to light as an easement accrues only after twenty years of enjoyment under Section 32 of the Limitation of Actions Act.
Court orders
#- 1.An interim conservatory order stopping, halting, discontinuing and preventing the 1st to 8th Respondents, their servants/agents/proponents or any other person from undertaking any further construction and development activities on LR No. 209/871/14 and 209/871/11, City Park Drive, Parklands, pending the hearing and determination of the Petition
- 2.A conservatory order compelling the 9th to 17th Respondents to take immediate measures to stop, prevent or discontinue any continuing development or occupation of the suit property, including arresting and prosecuting any person or equipment used for further construction, pending the hearing and determination of the Petition
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Sections 3, 4, 13 and 23); Section 3 of the Environmental Management and Co-ordination Act; Sections 3 and 10 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kassam & 12 others v JW Archplans Limited & 16 others (Environment & Land Petition E007 of 2024) [2024] KEELC 7212 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7212/eng@2024-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.