Kabugo & 2 others v Njihia & Mwaniki & 4 others (Constitutional Petition E002 of 2025) [2025] KEELC 3250 (KLR)
The bottom line
#Kenya's Environment and Land Court halted unlicensed construction in Ngong, ruling residents can sue to protect the environment even without proving personal loss.
What this practically means
#Executive summary
#Key legal issues
#Capacity/locus standi of the Petitioners to institute the petition
The Petitioners have locus standi under Articles 22 and 258 of the Constitution and Article 70; an unincorporated association's members or interested persons may sue, and no proof of loss or injury is required for environmental claims.
Relying on Mumo Matemu v Trusted Society of Human Rights Alliance, the court held that the 2010 Constitution fundamentally transformed locus standi, burying stringent requirements of consent or special interest. Article 258 permits proceedings by a person acting in their own interest, on behalf of others, in the interest of a group, or in the public interest. Article 70 allows any person alleging a threatened violation of the right to a clean environment to seek redress without demonstrating loss or injury.
Whether an interim injunction should issue against the 1st and 3rd Respondents
Yes. The 5th Respondent confirmed no approvals or EIA applications existed for the 1st and 3rd Respondents' projects, establishing a prima facie case of unlicensed, unlawful construction.
Applying Giella as sequenced in Nguruman, the court found the affidavit of the County Director of Environment showed no approvals had been issued for four of the suit properties, rendering the projects unlicensed and unlawful. The court was further guided by the conservatory-orders principles in Gatirau Peter Munya, noting its constitutional mandate to prevent acts harmful to the environment, and found the Petitioners' case a proper one for interim relief.
Whether to restrain the 2nd Respondent
No. The 2nd Respondent holds a valid EIA licence from NEMA and an approval from the 4th Respondent; dissatisfied parties must pursue the statutory appeal under section 125 of EMCA.
NEMA deposed that an EIA licence had been issued to the 2nd Respondent after consideration of project design, site visits, lead-agency comments, public participation findings and technical decision-making principles. Without a prima facie case of illegality against the 2nd Respondent, no restraining order could issue; the remedy for dissatisfaction with the licence lies with the statutory tribunal under section 125 of EMCA.
Legal principles established
#- Standing in constitutional petitions is governed by Articles 22 and 258 of the Constitution; any person may sue in their own interest, in the interest of a group, or in the public interest.
- Interlocutory applications do not decide the rights of parties conclusively.
- The Giella conditions for temporary injunction are applied as sequential hurdles; failure at the first hurdle ends the inquiry.
Court orders
#- 1.An order of interim injunction issued pending hearing and determination of the petition restraining the 1st and 3rd Respondents from continuing construction of multi-storey buildings on Ngong/Ngong/63429, 63431, 52296 and 52295, Amani Close, Ngong, Kajiado County
- 2.The 1st and 3rd Respondents directed to halt all construction activities at the sites until they have complied with the 4th and 5th Respondents' directives, environmental laws, and applicable regulations
- 3.The 4th and 5th Respondents directed to ensure compliance with the above orders by issuing appropriate cessation orders
- 4.The 1st and 3rd Respondents authorized to fill the manholes in their respective compounds within 7 days under supervision of the Director NEMA - Kajiado County
- 5.Costs of the application to abide the outcome of the main petition; in the cause
- Jurisdiction invoked
- Articles 22, 23, 70 and 258 of the Constitution of Kenya 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabugo & 2 others v Njihia & Mwaniki & 4 others (Constitutional Petition E002 of 2025) [2025] KEELC 3250 (KLR)", Case Analysis (2025). Petition dated 14th February 2025 (Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3250/eng@2025-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.