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ELCPartially AllowedNot stated in judgment (Petition dated 26th January 2025)· [2025] KEELC 4538 (KLR)

Warui (Suing as the Chairperson of Chuna One Residents Welfare Association) & 8 others v Onderi & 3 others (Petition E001 of 2024) [2025] KEELC 4538 (KLR)

Environment and Land Court
12 June 2025
LKL. Komingoi
1,260 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear residents' challenges to unapproved construction and stopped the project pending full hearing.

What this practically means

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Executive summary

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Members of Chuna One Residents Welfare Association petitioned the Environment and Land Court at Kajiado, seeking a declaration that the 1st Respondent is in material breach of the Petitioners' and Chuna Housing Cooperative Society Limited's by-laws permitting only one family unit per plot in the Kitengela Housing Development Scheme. Together with the Petition dated 26th January 2025 they filed a Notice of Motion seeking a temporary injunction restraining the 1st Respondent's continued construction of a multiple dwelling/commercial development on plot Kajiado/Kaputiei North/9XX3 Chuna One Estate Block E X7 Kitengela, pending hearing of the suit. The Petitioners allege the construction lacks approvals, a compliance certificate, an NCA-registered contractor, a signboard, safety measures, change of user approval and public participation, violating their constitutional rights. The 1st Respondent filed a preliminary objection contending the Court lacks jurisdiction under Section 13 of the ELC Act, that the issues fall within the Cooperative Tribunal's remit, and that the suit is an abuse of process. Only the Petitioners filed submissions. The Court, citing Mukisa Biscuit and the Supreme Court's decision in Odinga v IEBC, held that a preliminary objection must rest on a pure point of law requiring no fact-finding. It found jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, noting the Cooperative Tribunal does not deal with environment and planning issues, and that the 1st Respondent had not invoked the Physical Planning and Land Use Act mechanisms. The preliminary objection was dismissed with costs to the Petitioners, and the interim injunction in Prayer 3 of the Motion was granted in the meantime, with parties urged to set the Petition down for hearing.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over the Petition versus referral to the Cooperative Tribunal

Holding

The ELC has jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act; the Cooperative Tribunal does not deal with environment and planning issues, so the preliminary objection fails.

Reasoning

The gist of the Petition is alleged unauthorised construction on land without approvals, a dispute concerning environmental planning and use of land. The Court is clothed with jurisdiction by Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. The Cooperative Tribunal's mandate does not extend to environment and planning disputes, and the 1st Respondent did not invoke the dispute resolution mechanism under the Physical Planning and Land Use Act.

p. 4
02

Whether an interim injunction should issue pending hearing of the Petition

Holding

Yes; the interim order in Prayer 3 of the Notice of Motion is granted to expedite the matter and prevent waste of judicial time and resources.

Reasoning

The Court found it necessary to preserve the status quo pending full hearing, restraining continued construction of the multiple dwelling/commercial development on the suit plot. The order was granted in the meantime and parties were urged to set down the Petition for hearing on the merits.

p. 4

Legal principles established

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  • A preliminary objection must be grounded solely on a pure point of law, arising from undisputed facts as pleaded, and must not require fact-finding.

Court orders

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  1. 1.The preliminary objection by the 1st Respondent is dismissed with costs to the Petitioners
  2. 2.The order sought in terms of Prayer No. 3 of the Notice of Motion (temporary injunction restraining continued construction) is granted in the meantime pending hearing and determination of the Petition
  3. 3.Parties implored to set down the Petition for hearing

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1; Order 51 Rules 1 & 3
  • Civil Procedure ActSections 1A, 1B and 3A
  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticle 162(2)(b)
  • Physical Planning and Land Use Actnot specified (referred to as 2019)

Cases cited (4)

  • Maina v Director, Physical and Land Use Planning, Kiambu County Government & another
    [2023] KEELC 15781 (KLR)
  • R. Vs Independent Electoral and Boundaries Commission (I.E.B.C.) & Others ex parte The National Super Alliance Kenya (NASA)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
  • Odinga v Independent Electoral & Boundaries Commission & 3 others
    [2013] KESC 8 (KLR)
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the 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, "Warui (Suing as the Chairperson of Chuna One Residents Welfare Association) & 8 others v Onderi & 3 others (Petition E001 of 2024) [2025] KEELC 4538 (KLR)", Case Analysis (2025). Not stated in judgment (Petition dated 26th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4538/eng@2025-06-12

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