Garden Park Hotel Limited & another v Jiangxi Transportation Engineering Group Limited & 2 others (Environment and Land Petition E003 of 2025) [2025] KEELC 7143 (KLR)
The bottom line
#A Mombasa court confirmed you can sue road contractors over environmental harm directly in the Environment and Land Court, but interim orders require proof of irreparable harm.
What this practically means
#Executive summary
#Key legal issues
#Whether EMCA Section 129 ousts the ELC's jurisdiction over the petition
The preliminary objection fails; the Tribunal's jurisdiction is limited to appeals over licensing matters and does not extend to enforcement of constitutional environmental rights.
Section 129 of EMCA confers on the National Environmental Tribunal jurisdiction over appeals concerning licences, conditions, restoration orders and fees. The petition seeks declarations of violation of Articles 24, 28, 40, 42, 47 and 69 and enforcement of environmental rights, which Section 13(3) of the ELC Act vests exclusively in this court. The Tribunal cannot award constitutional compensation or damages.
Whether the petitioners met the Giella v Cassman Brown test for an interlocutory injunction
Although a prima facie case was demonstrated, the petitioners failed to show irreparable injury since their loss was quantifiable in damages.
An assessment report showed deep excavations and blocked access, establishing interference with the petitioners' rights of access and enjoyment. However, the petitioners produced annual reports and financial statements from which loss of business and depreciation of assets could be quantified and compensated at trial. Under Nguruman, speculative or compensable injury cannot found an injunction.
Costs of the application and preliminary objection
Each side lost one limb; no order as to costs on either.
Although costs follow the event under Section 27 of the Civil Procedure Act, the court considered it appropriate that both the application and the preliminary objection be dismissed with no order as to costs, since neither succeeded.
Legal principles established
#- The ELC has jurisdiction to enforce constitutional environmental rights notwithstanding the National Environmental Tribunal's jurisdiction under EMCA.
- A prima facie case alone does not justify an interlocutory injunction; irreparable injury must also be demonstrated.
Court orders
#- 1.The 1st and 2nd respondents' notice of preliminary objection dated 24.04.2025 is disallowed with no order as to costs.
- 2.The notice of motion dated 03.03.2025 is dismissed with no order as to costs.
- Jurisdiction invoked
- Section 13(3) of the Environment and Land Court Act; Articles 42, 69 and 70 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Garden Park Hotel Limited & another v Jiangxi Transportation Engineering Group Limited & 2 others (Environment and Land Petition E003 of 2025) [2025] KEELC 7143 (KLR)", Case Analysis (2025). Not stated in the judgment (petition concerning L.R No. MN/III/2971, Garden Park Hotel, Mtwapa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7143/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.