Kassam & 13 others v Njoroge & 23 others (Petition E021 of 2024) [2025] KEELC 4860 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed neighbours' challenge to an 18-storey Parklands development because they proved no fraud, no environmental harm, and no licence irregularities.
What this practically means
#Executive summary
#Key legal issues
#Specificity of a constitutional petition (Anarita Karimi threshold)
The Petition met the threshold as it identified the Articles infringed and the particulars of violation with sufficient detail.
The court restated the Anarita Karimi Njeru test and its affirmation in Mumo Matemo and the Communications Commission case. It held that quoting Articles plus a stream of facts is insufficient, but here the Petitioners articulated the violations: the approvals and licences infringed their rights to a clean and healthy environment, life, information, and the Article 10 values, enabling the Respondents to reply.
Abuse of court process
The Petition was not an abuse of process despite a similar earlier petition (E009 of 2024) being withdrawn.
The court acknowledged the withdrawn ELC Petition No. E009 of 2024 bore striking resemblance, but noted no merits had been determined there and the withdrawal was with leave of court. The cited E001 of 2024 was unrelated (Joginder Kaur Chadha v Thermax). Prejudice to the Respondents was not established.
Validity of development approvals, NEMA licence and NCA certificate
The approvals and licences were lawfully issued; reference to LR No. 209/9316 was not fraudulent, and issuance to the developer (not the owners) was permissible.
The court found LR 209/9316 is the former description of Nairobi Block 37/66 following migration to the new blocking system. Fraud was not proved; the Joint Venture Agreement supplied the owners' consent under Section 58(4) PLUPA; the presumption of regularity applied; and the development of 18 levels fell within Zone 3E's 20-floor limit under the 2021 Development Control Policy.
Public participation in the EIA process
The public participation undertaken was adequate; a full EIA study was not required, but questionnaires amounted to real participation.
Applying the British American Tobacco principles and Principle 10 of the Rio Declaration, the court held that although no full EIA study was mandated under Regulation 10(2), the 12th Respondent still bore a duty of meaningful participation. Ten questionnaires circulated to neighbours captured concerns (noise, dust) which were addressed in the Project Report's mitigation measures.
Alleged environmental harm and the precautionary principle
The Petitioners failed to discharge their burden of proving actual or threatened serious or irreversible environmental damage.
Under Section 107 of the Evidence Act, the Petitioners needed credible reports, expert affidavits or circumstantial evidence of environmental risk. Claims of dust, noise, blocked light and air, and wall damage were unparticularised and unsupported by technical reports; mitigation measures were in place; the precautionary principle was therefore not attracted.
Right to information under Article 35
The right was not infringed; the Respondents responded to the Petitioners' requests, albeit with delays.
The court examined the correspondence and found responses were given by the 12th Respondent's advocates (14 March 2024), the 16th Respondent (25 April and 7 June 2024), and the 1st-11th Respondents confirming ownership. Delays did not curtail the right nor prejudice the Petitioners' case.
Legal principles established
#- A petitioner alleging fraud in public approvals must plead and prove it to a standard above a balance of probabilities but below beyond reasonable doubt.
- The presumption of regularity protects official acts unless rebutted by clear and cogent evidence.
- An EIA licence may lawfully be issued to a project proponent who is not the registered landowner; the proponent need only demonstrate ownership, not registration.
- Withdrawal of an earlier petition before a determination on the merits does not render a subsequent petition an abuse of court process.
- The unapproved Nairobi City County Development Control Policy 2021 binds the County until changed, and developments within its zonal limits are lawful.
Court orders
#- 1.The Petition dated 24th June 2024 is dismissed in its entirety.
- 2.Each party shall bear its/his own costs, the Petition having been filed in the public interest.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court); Articles 22, 70 and 258 on enforcement of the Bill of Rights
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kassam & 13 others v Njoroge & 23 others (Petition E021 of 2024) [2025] KEELC 4860 (KLR)", Case Analysis (2025). ELC Petition No. E011 of 2024 (Petition dated 24th June 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4860/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.