Board of Management Ngara Girls High School & another v Erdemann Property Limited & another; Ministry of Education (Interested Party) (Environment and Land Petition E066 of 2024) [2025] KEELC 5478 (KLR)
The bottom line
#A Nairobi court ordered a property developer to demolish its structures, pay a school KShs. 13 million, and restore polluted land within 60 days.
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 Court has jurisdiction to determine the petition.
- 2.Whether the 1st Respondent's activities amount to trespass thus violating the Petitioners' right to property.
- 3.Whether the Petitioners' right to a clean and healthy environment has been violated.
- 4.Whether the Petitioner is entitled to general and punitive damages including restorative reliefs against the 1st Respondent.
- 5.Costs
- 6.Final orders and conclusions
Key legal issues
#Jurisdiction and exhaustion of alternative remedies
The objection on jurisdiction/exhaustion was dismissed; the ELC is the correct forum for a petition centred on environmental rights.
The NET forum was unavailable as no NEMA decision was under challenge; the Liaison Committee forum was otiose since no CEC decision or enforcement notice existed; Section 152E of the Land Act disputes fall within the ELC's mandate under Section 13; and the FAAA does not apply since the case is founded on environmental rights, not judicial review. Section 9(4) FAAA permits exemption in the interest of justice.
Trespass and right to property
Trespass proven; continued occupation after expiry of the lease and notices is without legal basis and violates Articles 27(1) and 40.
The lease dated 10/6/2020 expired on 10/6/2023, was extended to 31/12/24 on the undertaking to vacate, but the 1st Respondent remained and erected a batching plant. The school's possession is grounded in the 13/9/2012 consent orders in HCCC No. 346 of 2005 donating the land, and possessionary rights suffice to found trespass. The 1st Respondent cannot challenge the donor's locus at the tail end of the relationship.
Right to clean and healthy environment
Violated; the batching plant emitted dust and noise next to a school and mitigation (watering the road, dust nets, speed bumps) was inadequate under the precautionary principle.
The 1st Respondent admitted dust pollution in correspondence; the school nurse's unchallenged report showed increased respiratory illnesses; NEMA licensing conditions restricted operations to 8am-5pm, the prime learning period. Under Article 70(3) no proof of injury is required; a threat suffices. Operating a concrete plant next to a school also violated the students' rights to education and dignity under Articles 28 and 53.
Damages and restoration
General damages of Kshs. 3,000,000 for trespass and Kshs. 10,000,000 compensation for environmental violation awarded, with restoration order and default payment.
Damages for trespass assessed by reference to the monthly rent of Kshs. 300,000 over the period of continued trespass. Environmental compensation took into account duration of pollution, inadequacy of mitigation, and the large number of students affected over a year. Under the polluter pays principle the 1st Respondent must clean up and restore the land, failing which it pays Kshs. 10,000,000 for restoration.
Legal principles established
#- An occupier with possessory rights over land, even without registered title, can maintain a claim for trespass against a party who entered with permission and remained after the permission expired.
- The ELC is the appropriate forum for petitions centred on the right to a clean and healthy environment, and the exhaustion doctrine does not bar such petitions where the alternative forums' mandates do not cover the grievances raised.
- Operating a hazardous concrete batching plant next to a school breaches the precautionary principle and violates the right to a clean and healthy environment; an applicant need not prove actual injury, a threat of violation suffices.
- Under the polluter pays principle, the polluter bears compensation and the cost of clean-up and full restoration.
Court orders
#- 1.A declaration that the occupation and continued occupation by Erdemann Property Limited of LR.NO. L.R/209/136/239/R constitutes a violation of the Ngara Girls High School right to property under Articles 27(1) and 40 of the Constitution.
- 2.An order of mandatory injunction directing the 1st Respondent to forthwith remove and demolish all structures erected on the Petitioner's property LR/209/136/239/R within 60 days from the date of judgment.
- 3.A permanent injunction restraining the Defendant from entering upon, remaining on or continuing in occupation of or interfering with the Petitioner's property LR.No. L.R/209/136/239/R.
- 4.A declaration that Erdemann Property Limited contravened Ngara Girls High School fundamental rights and freedoms contrary to Articles 10, 12, 27, 28, 40, 42, 47, 53, 69 and 70 of the Constitution, Sections 4 and 23 of the Climate Change Act, and Articles 3, 6, 24, 28, 29 and 31 of the Convention on the Rights of the Child as read with UN Committee General Comment No. 26.
- 5.General damages of Kshs. 3,000,000 against the 1st Respondent for trespass and violation of possessionary rights, with interest at court rates until complete handover and payment in full.
- 6.Compensation of Kshs. 10,000,000 against the 1st Respondent for violation of the right to a clean, healthy and sustainable environment.
- 7.The 1st Respondent to restore LR/209/136/239/R to its original status, including construction of the perimeter wall, within 60 days.
- 8.In default, the 1st Respondent to pay the 1st Petitioner Kshs. 10,000,000 for restoration of the land within 90 days.
- 9.Costs of the petition borne by the 1st Respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#Claim for breach of Article 47 and Sections 4 and 5 of the Fair Administrative Actions Act against the 2nd Respondent and the Interested Party
The 2nd Respondent and Interested Party supported the Petition and were extensively involved in attempting to resolve the matter; no breach of Article 47/FAAA was demonstrated.
Punitive damages and the claimed Kshs. 100 Million compensation
The Petitioners demanded Kshs. 100 Million without laying any basis for it, and the Court was not persuaded to grant the amount absent justification.
Costs
The cost of this petition shall be borne by the 1st Respondent.
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.
A declaration be and is hereby issued that the occupation and continued occupation by Erdemann Property Limited of the Petitioner's property known as LR.NO. L.R/209/136/239/R constitutes a violation of the Ngara Girls High School right to property as guaranteed under Articles 27 (1) and 40 of the Constitution of Kenya, 2010.
An order of mandatory injunction be and is hereby issued directing the 1st Respondent whether by itself or by its agents, servants or otherwise however to forthwith remove and demolish all the structures erected on Petitioner's property known as L.R. NO.LR/209/136/239/R within a period of 60 days from the date of this judgement.
In default, 1st Respondent is ordered to pay to the 1st Petitioner the sum of Kshs. Ten Million (Kshs. 10,000,000) for the restoration of the land within 90 days.
The cost of this petition shall be borne by the 1st Respondent.
to the extent that the Petition revolves around the right to clean and healthy environment, the right forum is this Court.
The 1st Respondent entered the land with the permission and consent of the 1st Petitioner holding possessionary rights and it is not available to the 1st Respondent to challenge its locus at the tail end of their disengagement.
Operating a concrete making machine therefore is not in the best interest of the learner/child.
To buttress the concept of polluter pays principle, the Court finds that the 1st Respondent is responsible for the clean up and full restoration of the land in the sum of Kenya Shillings (Kshs.10,000,000).
Issues in the judgment
#Internal contradiction on the quantum of general damages for trespass: the analysis states the sum as Three Million but with the figure 10,000,000 in parentheses, while the final orders award Kshs. 3,000,000.
The final orders declaration states the 1st Respondent contravened rights contrary to Article 47 even though the Court in the analysis found no breach of Article 47 and Section 4 and 5 of the FAAA.
Inconsistent reference to the suit parcel number: the 1st Respondent's affidavit refers to 'LR No 209/236/139/R' while the rest of the judgment uses LR No 209/136/239/R.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of Management Ngara Girls High School & another v Erdemann Property Limited & another; Ministry of Education (Interested Party) (Environment and Land Petition E066 of 2024) [2025] KEELC 5478 (KLR)", Case Analysis (2025). Petition dated 8/8/2024 (Environment and Land Court Constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5478/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.