Kassam & 12 others v Shah & 16 others (Environment and Land Petition E007 of 2024) [2025] KEELC 5354 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petition is competent
- 2.Whether the 9th-11th Respondents' Replying Affidavit is fatally defective
- 3.Whether the 4th Respondent is the legitimate owner of L.R Nos 209/871/11 and 209/871/14
- 4.Whether the issuance of the approvals and licenses in the names of persons other than the 4th Respondent rendered them invalid
- 5.Whether the licenses and approvals allowing the construction on the suit property were issued in violation of the Petitioners' rights to a clean and healthy environment
- 6.Whether the excavation and construction activities on the suit property infringe or threaten the Petitioners' right to a clean and healthy environment
- 7.Whether the pegging and marking undertaken by the 15th Respondent on the riparian reserve next to L.R No 209/871/11 was illegal and/or irregular
- 8.Whether the Petitioners' rights to information as guaranteed under Article 35 of the Constitution were violated
- 9.What are the appropriate remedies, if any
Key legal issues
#Competency of the constitutional Petition
The Petition is competent as it raises substantive constitutional questions on Articles 10, 35, 42 and 47, going beyond mere procedural or administrative grievances
Applying the Anarita Karimi Njeru principle and the definition of a constitutional question, the court found the Petition identified the constitutional provisions said to be infringed and the manner of infringement, particularly the alleged violation of the right to a clean and healthy environment under Article 42 arising from irregular approvals. The objection that the Petition was a disguised appeal against development permissions was rejected.
Authority of the deponent of the 9th-11th Respondents' Replying Affidavit
The affidavit was validly sworn; an express averment of authority is presumed valid absent rebuttal
Relying on Spire Bank Limited and Smartshop Limited, the court held that where a deponent states he is duly authorized, a bare denial without evidence to the contrary is insufficient. Mr. Masinde expressly stated he had authority, and the Petitioners adduced no evidence rebutting it.
Ownership of the suit properties by the 4th Respondent
The court declined to determine ownership as no relief on title was pleaded; parties are bound by their pleadings
The Petition was not grounded on a claim for revocation or rectification of title, and the Petitioners asserted no competing ownership. Citing David Sironga Ole Tukai and IEBC v Mutinda Mule, the court confined itself to issues properly pleaded and declined to entertain abstract ownership claims.
Validity of approvals and licenses issued in names other than the 4th Respondent
The approvals were issued to entities in the chain of title; the irregularity at most renders the approvals voidable, not null and void
The court found the approvals were issued to persons/entities in the chain of title, consistent with the 4th Respondent's explanation of delays in updating records. There was no evidence of deliberate misleading, no allegation the developments were on other parcels, and the 4th Respondent was registered as owner in 2024.
Irregularities in development permissions (repealed law forms, missing applications, absent County Director and plans)
None of these irregularities invalidated the permissions; the presumption of regularity was not rebutted and public participation was adequate
Forms cited the repealed Physical Planning Act 1996, but the issuing authority did not disown the approvals and Article 159(2)(d) enjoins disregard of technicalities. The regulatory authorities affirmed receipt of applications. Newspaper notices and signboards satisfied Sections 58(7) and (8) PLUPA. Absence of county plans and of a County Director cannot nullify CECM authority, especially where development was nearly complete. Under the 2021 Development Control Policy the zone permits up to 20 floors and the approvals were within this.
Validity of NCA compliance certificates
The NCA certificates were valid; alleged inconsistencies and fraud were not substantiated
The court found the project registration numbers reconciled (one pertained to an additional floor, another to L.R 209/871/11), differences between certificates merely reflected additional fields, and fraud allegations without proof fail the strict standard of proof. The sharing of the NCC-CPF Plan No AV-209 was not shown to be statutorily invalid.
Validity of NEMA EIA licenses and adequacy of public participation
The EIA licenses were validly issued after development approvals; the projects were medium-risk requiring project reports, and public participation was sufficient
The licenses were issued after county approvals; constructing 112 units instead of 98 was a license-condition violation addressed by an enforcement order but did not retroactively convert the project to high-risk or invalidate the license. Questionnaires distributed locally met the threshold for medium-risk projects under EMCA and the 2003 Regulations, applying the British American Tobacco public participation framework.
Alleged environmental harm and infringement of Article 42 rights
No conclusive finding of environmental violation; photographic evidence did not establish causal nexus and no expert reports were adduced
Photographs of effluent, darkened rooms and blocked access did not show the harm originated from the 4th Respondent's developments. Claims of structural damage, light obstruction and encroachment are technical and required expert opinion which was not provided; the architect's report relied on was admittedly inconclusive.
Legality of the riparian pegging by the 15th Respondent
The pegging at 10 metres under the repealed Water Resources Management Rules, 2007 was lawful as the successor 2021 Rules had no delineation provision and the 2025 Regulations restored the same standard
Though conducted under repealed Rules, at the material time the 2021 Rules contained no riparian delineation provision. The 15th Respondent is the sole lawful agency for delineation, its follow-up site visits confirmed compliance, the Gitathuru/Mathare naming discrepancy was immaterial as the rivers interconnect, and the 2024 Cabinet 30-metre policy was prospective and general.
Alleged violation of the right to information under Article 35
No violation found; the limb appeared abandoned, and the evidence showed substantial correspondence and information provided
The claim was not pursued in submissions. The record showed the 9th-11th, 12th, 14th and 15th Respondents corresponded with and provided information to the Petitioners regarding the developments, so no denial of information was established.
Legal principles established
#- Allegations of fraud must be specifically pleaded, particularized and strictly proved; proof must meet a higher threshold than ordinary civil cases but not the criminal standard
- In the absence of clear evidence to the contrary, administrative actions of public officials are presumed regular, lawful and reasonable
- A procedural misstep does not nullify an otherwise regular process unless it affects substance, causes prejudice, or contravenes a mandatory statutory requirement
- Development permissions issued in the name of a predecessor in title, without the registered owner's consent under Section 58(4) PLUPA, are voidable rather than null and void
- Environmental and structural harm claims such as encroachment, structural damage and light obstruction are technical and require expert evidence; photographs alone cannot establish causal connection
- The legal requirement for public participation in medium-risk EIA projects is that the opportunity to participate must be meaningfully afforded, not that every member of the public must respond
Court orders
#- 1.The Petition dated 28th March, 2024 is dismissed
- 2.Each party shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 22 and Article 70 of the Constitution; Section 13 of the Environment and Land Court Act
Relief refused
#All twenty reliefs sought, including declarations that the development permissions, change of user approvals, EIA licenses, NCA certificates of compliance were null and void, permanent injunction, mandatory decommissioning and restoration orders, and general damages
The Petitioners failed to discharge the burden of proof; irregularities identified were procedural and not substantive; the presumption of regularity was not rebutted; no cogent expert evidence linked the developments to the alleged environmental harm
Costs
As this is a public interest matter, each party shall bear their costs.
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.
In conclusion, this court finds that the Petition dated 28th March, 2024 wholly lacks merit and the same is dismissed.
As this is a public interest matter, each party shall bear their costs.
The idea is that, in the absence of clear evidence to the contrary, administrative actions should be presumed to be regular, lawful, and reasonable.
Unless a procedural misstep afiects the substance or outcome of a decision, causes prejudice, or contravenes a mandatory statutory requirement, it cannot be the basis for nullifying an otherwise regular process.
The legal requirement is not that every member of the public must respond, but that the opportunity to participate must be meaningfully afiorded.
This is a violation of the license condition for which an enforcement order has been issued. It does not retroactively convert the original development into a high-risk project, nor does it invalidate the licence itself.
The allegations presented in the Petition, as summarized above, do indeed raise substantive constitutional questions that warrant judicial inquiry.
Issues in the judgment
#The deponent of the 9th-11th Respondents' Replying Affidavit is named inconsistently in the judgment
The same deponent is later referred to as Wilfred Masinde
The 12th Respondent's Director-General is referred to as 'Ms Mamo' in one passage despite being elsewhere described as male ('Mr. Mamo')
Contradictory references to the court's earlier decision: cited as Millennium Gardens Management Limited vs Metricon Home Nairobi Company Limited but also as 'Millennium Gardens Management Limited vs Metricon Home Nairobi Company Limited' with differing citation formats for the same decision [2024] KEELC 6040
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Tom Brown Ltd & another v County Executive Committee Member In Charge of Planning & 7 others (Environment and Land Petition E053 of 2022) [2026] KEELC 4248 (KLR)[2026] KEELC 4248 (KLR)9 Jul 2026
- Afriwell Ltd v Barrow (Sued in his Capacity as Chairperson for and on Behalf of Lower Kabete Residents Association) & 5 others (Environment and Land Appeal E002 of 2025) [2026] KEELC 4219 (KLR)[2026] KEELC 4219 (KLR)9 Jul 2026distinguished
- Sangahani & 2 others (For and on Behalf of Parklands Residents Association) v Nairobi City County Government & 5 others; 108 (Interested Party) (Petition E012 of 2025) [2025] KEELC 6985 (KLR)[2025] KEELC 6985 (KLR)14 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Kassam & 12 others v Shah & 16 others (Environment and Land Petition E007 of 2024) [2025] KEELC 5354 (KLR)", Case Analysis (2025). Environment and Land Petition (Nairobi), 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5354/eng@2025-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.