Irungu v Hayer Marquis Limited & 2 others (Environment and Land Petition E034 of 2021) [2025] KEELC 6602 (KLR)
The bottom line
#Kenya's Environment and Land Court declared a Nairobi developer's EIA licences unlawful for skipping public participation, and ordered a fresh Environmental Impact Assessment at the developer's own cost.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to hear and determine this suit.
- 2.Whether adequate public participation preceded the issuance of the EIA Licence.
- 3.Whether the 1st Respondent constructed the development negligently and caused air pollution in the Petitioner's house.
- 4.Whether the reliefs sought by the Petitioner should be granted.
Key legal issues
#Jurisdiction - exhaustion of statutory remedies under EMCA
The court has jurisdiction. Although challenges to an EIA licence ordinarily lie before the NET under Section 129 EMCA, the Petition is broader and raises constitutional rights under Articles 42, 69 and 70, which fall within the ELC's original jurisdiction under Section 13(4) of the ELC Act, guided by the Supreme Court's nuanced approach in Nicholus.
The court reviewed the exhaustion doctrine (Muthinja, Kibos Distillers, Nicholus) and held that where the Petition invokes constitutional environmental rights, the ELC has original jurisdiction. Following Nicholus and John Muthui, the court adopted a case-by-case approach and found the constitutional claims properly before it rather than confined to the Tribunal.
Public participation before issuance of the EIA Licences
Public participation was inadequate; the licences were obtained unprocedurally. The project (over 100 housing units) was high-risk under the Second Schedule of EMCA, requiring an EIA Study Report and Regulation 17 public participation, none of which was demonstrated.
Regulation 17 prescribes posters, newspaper notices, radio announcements and at least three public meetings for high-risk projects. The respondents produced no evidence of an EIA Study Report or of notifying the affected community including the Petitioner. Following Mui Coal Basin and British American Tobacco, the burden lay on the proponent and was not discharged; a presumption of threat to the environment arose (Moffat Kamau).
Whether the development breached/required variation of the EIA Licences
The addition of two floors comprising 28 units and two penthouses was a substantial change requiring a fresh EIA Study Report; the second licence of 28th October 2019 was not shown to have been preceded by a fresh EIA study or public participation.
Section 64(1) EMCA empowers NEMA to require a fresh EIA upon substantial change. Borrowing from Moffat Kamau, variation under Regulation 25(3) is not unfettered. Adding floors to a high-density development alters the scale and intensity of land use and is substantial. The 2019 licence therefore rested on a procedurally flawed process.
Alleged negligence, air pollution, property damage and health harm
Not proved. The Petitioner adduced no photographic, expert, toxicological or medical evidence establishing a causal nexus between the construction and the alleged damage to her house, air quality deterioration or depression.
Applying Sections 107 and 108 of the Evidence Act and the higher constitutional threshold in Gwer & KEMRI and Communications Commission of Kenya, mere apprehension of harm without empirical proof cannot found a constitutional violation. Claims under Articles 40 and 26 therefore failed.
Appropriate remedies given completed development
Structural interdicts: declaration of unlawfulness of the licences; fresh EIA with meaningful public participation within 60 days at the 1st Respondent's cost; NEMA's decision to be filed in court within 120 days; final suitability determination deferred.
Relying on Fose v Minister of Safety and Security and Hoffmann v South African Airways, the court crafted remedies that address the wrong, are capable of compliance and are fair, bearing in mind that the development was already complete, making demolition-type relief impractical and favoring supervised regularisation.
Legal principles established
#- Where a dispute resolution mechanism exists outside courts, it must be exhausted before court jurisdiction is invoked, though a nuanced, case-by-case approach applies.
- A constitutional petition on environmental rights falls within the original jurisdiction of the Environment and Land Court notwithstanding the existence of the NET route.
- The burden rests on the project proponent to demonstrate compliance with public participation obligations.
- A licence issued in violation of mandatory public participation provisions cannot stand.
- A change in scale and intensity of a licensed project amounts to a substantial change requiring a fresh EIA.
Court orders
#- 1.Declared that the EIA Licenses issued to the 1st Respondent in respect of the development on Land Parcel No. 209/9674 were obtained unprocedurally, and are thus unlawful.
- 2.A fresh Environmental Impact Assessment to be undertaken by the 1st Respondent in full compliance with EMCA and the Environmental (Impact Assessment and Audit) Regulations within 60 days from the date of the Judgment.
- 3.The fresh Environmental Impact Assessment shall incorporate meaningful public participation pursuant to Regulation 17 and shall be submitted to NEMA.
- 4.The decision of NEMA in respect of the said Report(s) shall be filed in court within 120 days from the date of the judgment.
- 5.The costs of undertaking the fresh Environmental Impact Assessment and implementing any mitigation measures shall be borne solely by the 1st Respondent.
- 6.The final decision/judgment of the court on the suitability of the development on the suit report to be delivered on a date to be agreed upon by the parties, after the lapse of the 120 days.
- 7.The Petition against the 3rd Respondent dismissed (no cause of action disclosed).
- 8.Claims for breach of the licence scope, property rights (Article 40), right to life (Article 26) and damages/compensation dismissed for want of proof.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165 Constitution and Section 13(4) of the Environment and Land Court Act; Articles 22(1) and 70 (enforcement of environmental rights)
Relief refused
#Declaration that the 1st Respondent breached General Condition 1.1 by constructing six additional blocks/beyond licence scope
Petitioner produced only the licence; no photographic, expert or documentary evidence of the excess construction
Declaration of violation of Article 40 (property rights) and compensation for making the house uninhabitable
No cogent evidence that property was rendered uninhabitable by the Respondents' actions
Declaration of violation of Article 26 (right to life) arising from depression/psychological harm
No medical reports or expert psychiatric evidence establishing causal nexus
Compensation/damages and special damages
Not specifically pleaded and proved; claims unsupported by expert evidence
Relief against the 3rd Respondent
No cause of action or relief pleaded against it
Costs
No general costs order stated in the final orders; the court ordered that the costs of undertaking the fresh Environmental Impact Assessment and implementing any mitigation measures shall be borne solely 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.
It is hereby declared that the EIA Licenses issued to the 1st Respondent in respect of the development on Land Parcel No. 209/9674 were obtained un procedurally, and are thus unlawful.
A fresh Environmental Impact Assessment process to be undertaken by the 1st Respondent in full compliance with the Environmental Management and Conservation Act and the Environmental (Impact Assessment and Audit) Regulations within 60 days from the date of this Judgment.
The costs of undertaking the fresh Environmental Impact Assessment and implementing any mitigation measures shall be borne solely by the 1st Respondent.
Accordingly, this court finds that it has the requisite jurisdiction to determine this Petition on its merits.
A licence issued in violation of these mandatory provisions cannot stand.
the burden rests upon the project proponent to demonstrate compliance with these constitutional and statutory obligations.
The mere apprehension of harm, unsupported by empirical proof or expert testimony, does not meet the threshold required to establish a constitutional violation.
Issues in the judgment
#The two decisions under the name 'Mofiat Kamau' are cited inconsistently - one against 'A.G. of Kenya Ltd' and one against 'Aelous Kenya Limited', possibly the same case cited with different party names
Discrepancy between pleaded breach (six additional blocks/floors) and proved variation (two additional floors comprising 28 units) - the judgment attributes two-floor addition while the Petitioner alleged six blocks
Order (f) refers to 'suitability of the development on the suit report' - apparent typographical incoherence in the final orders
General costs of the Petition were not expressly disposed of despite being sought by the Petitioner and Respondents
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngige v Mwangi (As a Legal representative of the Estate of George Munyua Mwangi) & another (Petition 8 of 2020) [2026] KEELC 4864 (KLR)[2026] KEELC 4864 (KLR)27 Jul 2026
- Mazingira Greens Party of Kenya v Stellar Strategies Ltd & 2 others (Environment and Planning Petition E007 of 2026) [2026] KEELC 4034 (KLR)[2026] KEELC 4034 (KLR)26 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Irungu v Hayer Marquis Limited & 2 others (Environment and Land Petition E034 of 2021) [2025] KEELC 6602 (KLR)", Case Analysis (2025). Petition dated 15th September 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6602/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.