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ELCPartially AllowedPetition dated 2024 with notice of motion dated 21st May, 2024· [2024] KEELC 7480 (KLR)

Mwingi Court Residents Association v Barasa t/a Gabasa (K) Enterprises & 3 others (Environment & Land Petition E016 of 2024) [2024] KEELC 7480 (KLR)

Environment and Land Court
7 November 2024
1,705 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Nairobi court stopped a Kileleshwa construction project because the developer could not prove it had proper approvals, confirming residents can sue directly in court.

What this practically means

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Executive summary

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This is a ruling by A. Omollo, J of the Environment and Land Court at Nairobi on a notice of motion dated 21st May, 2024 filed by a residents' association (Petitioner) under article 70 of the Constitution, section 3(1) of EMCA and Order 40 of the Civil Procedure Rules. The Applicant sought a temporary injunction restraining the 1st and 2nd Respondents from continuing construction on Nairobi/Block 23/576 and 23/577 along Mwingi Road, Kileleshwa, alleging unlicensed and unauthorized commercial development causing noise, nuisance and violations of the rights to property and a clean and healthy environment. The 1st Respondent claimed to hold change of user and NEMA approvals and argued the Applicant should first have exhausted remedies before the County Liaison Committee under PLUPA or NET under EMCA. The 2nd Respondent (owner) confirmed it leased the land to the 1st Respondent and that its consent to structural alterations was never sought. The 4th Respondent (county) confirmed granting change of user but conceded no evidence of approved structural plans. The court held its jurisdiction under article 162(2)(b) cannot be ousted by statute, and that, following Abidha Nicholus and Ramogi, claims alleging fundamental rights violations are not barred by the exhaustion doctrine. On the merits, the court found a prima facie case of unauthorized development and allowed the motion in terms of prayers (c) and (d) pending determination of the Petition, with costs in the cause. The 1st Respondent's application to vary the orders of 22nd May, 2024 was dismissed with no order as to costs.

Key legal issues

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01

Jurisdiction/exhaustion of alternative remedies

Holding

The court retains jurisdiction notwithstanding alternative fora under PLUPA and EMCA; allegations of fundamental rights violations are not barred by the doctrine of exhaustion.

Reasoning

The 1st Respondent argued the dispute belonged before the County Liaison Committee under PLUPA or NET under EMCA. The court held that Article 162(2)(b) confers jurisdiction on the ELC over all land and environment disputes, which Parliament cannot oust, citing the Supreme Court's Abidha Nicholus decision and the Ramogi decision holding that fundamental rights violations claims are not subject to exhaustion.

p. 3
02

Prima facie case for injunction

Holding

The Applicant demonstrated a prima facie case that the 1st Respondent's development was unauthorized, as it was unproven that neighbours were consulted or that structural plan approvals existed.

Reasoning

The 1st Respondent, as development proponent, bore the duty to obtain licences and show consultation. No evidence of the advertised change of user was annexed; the 2nd Respondent confirmed the lessor's consent was never sought; the 4th Respondent confirmed no approval of structural plans was shown. This corroboration established a likelihood the development is unauthorized, satisfying the prima facie test without need to assess irreparable loss.

p. 4

Legal principles established

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  • The Environment and Land Court's jurisdiction over land and environment disputes under Article 162(2)(b) cannot be ousted by an Act of Parliament, and claims alleging violations of fundamental rights and freedoms are not barred by the doctrine of exhaustion.

Court orders

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  1. 1.The motion dated 21st May, 2024 allowed in terms of prayer (c) - injunction restraining the 1st and 2nd Respondents from continuing with any development, works and/or construction on Nairobi/Block 23/576 and Nairobi/Block 23/577 pending hearing and determination of the Petition
  2. 2.Orders in terms of prayer (d) directing the Officer Commanding Station, Kileleshwa Police Station to ensure compliance
  3. 3.Costs of the Applicant's application in the cause
  4. 4.The 1st Respondent's motion dated 27th May, 2024 seeking variation of the orders issued on 22nd May, 2024 dismissed with no order as to costs

Authorities

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Legislation

  • Constitution of Kenyaarticle 70
  • Constitution of Kenyaarticle 40
  • Constitution of Kenyaarticle 42
  • Constitution of Kenyaarticle 162(2)(b)
  • Environment Management and Co-ordination Act (EMCA)Section 3(1); 2nd Schedule; Sections 125, 129 & 130
  • Civil Procedure RulesOrder 40
  • Physical and Land Use Planning Act (PLUPA) No. 13 of 2019Sections 76-81

Cases cited (4)

  • Owners of Motore Vessel Lilian 'S' vs Caltex Oil Kenya Ltd
    (1989) KLRI
  • Geofirey Muthinja & Another vs Samuel Muguna & 1756 Others
    (2015) eKLR
  • Abidha Nicholus vs. Attorney General & Others
    (2023) eKLR
  • William Odhiambo Ramogi & 3 Others vs. Attorney General & 6 Others
    (2020) EKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; article 70 of the Constitution; Section 3(1) of EMCA; Order 40 of the Civil Procedure Rules

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, "Mwingi Court Residents Association v Barasa t/a Gabasa (K) Enterprises & 3 others (Environment & Land Petition E016 of 2024) [2024] KEELC 7480 (KLR)", Case Analysis (2024). Petition dated 2024 with notice of motion dated 21st May, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7480/eng@2024-11-07

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