Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment

Mbayaki & 4 others v Odhiambo & 2 others (Sued in their Capacity as Officials and Representatives of Githeri Rise Residents Association) & another (Environment and Land Petition E011 of 2025) [2025] KEELC 5278 (KLR)

Environment and Land Court
10 July 2025
2,128 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court temporarily stopped Safaricom from building a mast on residents' association land because it sat too close to their homes.

What this practically means

#

Executive summary

#
The Petitioners/Applicants moved the Environment and Land Court at Nairobi by notice of motion dated 28th February 2025 seeking interim orders pending the hearing of a petition challenging the construction of a Safaricom Base Transceiver Station mast on the Githeri Rise Residents Association's common property. They sought a copy of the lease agreement, an order that the hole dug on the common property be covered, materials removed and safety measures put in place, and an injunction restraining construction, citing health risks from hazardous radiation, danger to children from an unattended deep hole, and interference with rights of access and passage, invoking Articles 10, 69 and 42 of the Constitution. The 1st Respondent opposed through the replying affidavit of Nicodemus Odhiambo, contending the petition should be struck out, the court lacked jurisdiction as the National Environment Tribunal was the proper forum under sections 125 and 129 of EMCA, and that members approved the relocation at an AGM on 22nd September 2024 to raise income after the original mast site was sold. The 2nd Respondent filed no response. The court framed two questions: jurisdiction and prima facie case. Holding that no NEMA decision existed to exhaust before the NET, it found no breach of the exhaustion doctrine. On the merits, noting the mast location is 4.2–5 metres from the Petitioners' houses and no relocation licence was evidenced, and applying Mrao Ltd v First American Bank, it found a prima facie case and, on the balance of convenience given the 15-year lease term, granted prayers 4 and 5 for 12 months or until determination of the petition, whichever was earlier. Costs in the cause.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether this court has jurisdiction (notwithstanding the doctrine of exhaustion under sections 125 and 129 of EMCA)
  2. 2.Whether the Applicants have demonstrated a prima facie case

Key legal issues

#
01

Jurisdiction and the doctrine of exhaustion

Holding

The court has jurisdiction because there is no NEMA/EIA decision before the National Environment Tribunal to exhaust

Reasoning

The 1st Respondent argued the Petitioners should have first gone to the National Environment Tribunal under sections 125 and 129 of EMCA. The court noted the mandate to obtain licences and approvals lay with the 2nd Respondent, and neither Respondent annexed any NEMA decision or EIA licence. Absent such a decision, there was nothing to appeal before the NET and the exhaustion doctrine was not breached.

p. 5
02

Prima facie case for interlocutory injunction

Holding

A prima facie case with a probability of success was demonstrated

Reasoning

The 1st Respondent did not deny that the proposed mast location is 4.2–5 metres from the Petitioners' houses (against a 10 metre requirement) and that there was no evidence of a licence for relocating the mast. The Petitioners also filed an expert report listing likely negative impacts. Applying Mrao Ltd v First American Bank, the court found a right arguably threatened with violation.

p. 5
03

Balance of convenience

Holding

The balance of convenience tilts toward granting the injunction because the project's lease runs 15 years, so interim orders only delay it

Reasoning

The court reasoned that granting the interim orders merely delays implementation of the mast project. Given the lease term of 15 years, a temporary halt for a limited period would not prejudice the Respondents disproportionately, whereas the Petitioners' environmental and safety concerns would be preserved pending the full hearing of the petition.

p. 5
04

Scope of interlocutory determination

Holding

Certain issues raised by the 1st Respondent were premature and reserved for the full hearing of the petition

Reasoning

The court declined to analyse the admissibility of the expert report (LM-5) and the question of public participation, holding that these are matters for the full hearing. At the interlocutory stage the report only shines light on the existence of a prima facie case, and each party will get an opportunity to demonstrate whether public participation was conducted.

p. 4

Legal principles established

#
  • Where no decision exists that would invoke the jurisdiction of an alternative dispute resolution body, a party cannot be accused of breaching the doctrine of exhaustion
  • On an application for injunction, the court need only see on the face of it that the applicant has a right which has been or is threatened with violation

Court orders

#
  1. 1.Application allowed in terms of prayer 4 (directions regarding the hole dug on the common property, removal of materials and safety measures) for a period of 12 months or until determination of the petition, whichever is earlier
  2. 2.Application allowed in terms of prayer 5 (temporary injunction restraining the 2nd Respondent from constructing the Base Transceiver Station tower on the 1st Respondent's common property) for a period of 12 months or until determination of the petition, whichever is earlier
  3. 3.Costs of the application in the cause

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 165, 162 and 70 of the Constitution; section 13(3) of the Environment and Land Court Act

Relief refused

#

Prayer (d) - order to cover the hole, remove materials and place signage - and prayer (e) beyond the limited 12-month period

The interim orders were granted only for a limited duration pending the hearing of the petition

p. 5

Costs

Costs of the application in the cause.

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Where there is no decision that invokes the powers of alternative dispute resolution body, a party cannot be accused of violating the doctrine of exhaustion.
p. 5Jurisdiction and exhaustion of remedies
In the circumstances of the case, I find that the Petitioners have demonstrated a prima facie case with a probability of succeeding.
p. 5Prima facie case
In conclusion, the application is allowed in terms of prayers 4 and 5 for a period of 12 months or determination of the petition whichever is earlier. Costs of the application in the cause.
p. 5Final orders / disposition

Issues in the judgment

#
minor

The petitioners are referred to inconsistently as 'Petitioners/Applicants' and 'Plaintiffs' in the application papers quoted in the judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mbayaki & 4 others v Odhiambo & 2 others (Sued in their Capacity as Officials and Representatives of Githeri Rise Residents Association) & another (Environment and Land Petition E011 of 2025) [2025] KEELC 5278 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5278/eng@2025-07-10

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