Mzee (Suing on Behalf of Jacaranda Avenue Residents' Association) v Multi Auto Parkhaus Limited & another; CEC Member, Built Environment and Urban Planning & 3 others (Interested Parties) (Environment and Planning Civil Case E013 of 2025) [2025] KEELC 7894 (KLR)
The bottom line
#A Lavington resident's bid to stop a commercial construction failed because he lacked evidence; neighbours challenging developments must back claims with documents at the start.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not there is merit in the preliminary objection (lack of original jurisdiction / failure to exhaust statutory remedies)
- 2.Whether or not the application succeeds
Key legal issues
#Whether the court lacks jurisdiction for failure to exhaust statutory remedies under EMCA and PLUPA
The preliminary objection fails; the exhaustion doctrine does not oust the court's original jurisdiction where the Liaison Committee is defunct and the suit raises mixed issues
The 1st Interested Party confirmed the Liaison Committee had not sat since 26 November 2024, leaving the court as the only avenue for justice. The suit also raised mixed questions - challenging change of use, development permission and EIA licence together - and the court's original jurisdiction under Article 162 cannot be ousted by statute, so exhaustion would not offer an adequate remedy.
Whether the plaintiff established a prima facie case and irreparable harm for interlocutory/mandatory injunction
No; the plaintiff raised triable issues but not a prima facie case, and pleaded harm only in general terms
The alleged expiry of the change of user and its effect on subsequent approvals is a substantive legal question requiring full evidence at trial. The plaintiff produced no document proving the area remained purely residential, and merely listed alleged environmental violations without factual basis, failing the Giella threshold and the special-circumstances requirement for mandatory injunctions.
Legal principles established
#- A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct
- The Environment and Land Court has original jurisdiction over land and environmental disputes, not limited to constitutional petitions, and such original jurisdiction cannot be ousted by statute
- An interlocutory applicant must show some basis in fact for alleged violations, not merely list them, to establish irreparable harm
Court orders
#- 1.The preliminary objection is dismissed
- 2.The plaintiff's amended notice of motion dated 23rd July 2025 (as amended) is dismissed
- 3.Each party to bear their respective costs
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, No. 19 of 2011
Relief refused
#Declaration that the change of use of 7/3/2018 is expired and the intended construction is unlawful, null and void
The import of the expiry of a change of use licence on subsequent approvals is a substantive legal question requiring determination at trial, not at the interlocutory stage
Order compelling the 1st and 2nd Interested Parties to supervise the Defendants and restore the plot to its former state
No pleading of glaring refusal or negligence by the Interested Parties; the prayer was premature
Permanent injunction restraining construction
No prima facie case established and no special circumstances for mandatory injunction
Costs
Each party to bear their respective 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.
Accordingly, the preliminary objection fails and is dismissed.
I conclude that the applicant has failed to persuade court to grant both the orders of the temporary and mandatory order of injunction.
Both are dismissed with an order that each party bear their respective costs.
courts ought to be fora of last resort and not the first port of call the moment a storm brews.
the High Court may, in exceptional circumstances, find that exhaustion requirement would not serve the values enshrined in the Constitution or law and permit the suit to proceed before it.
Issues in the judgment
#No suit/petition case number is stated anywhere in the judgment
The identity of the 2nd Defendant is never disclosed in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mzee (Suing on Behalf of Jacaranda Avenue Residents' Association) v Multi Auto Parkhaus Limited & another; CEC Member, Built Environment and Urban Planning & 3 others (Interested Parties) (Environment and Planning Civil Case E013 of 2025) [2025] KEELC 7894 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of motion dated 23rd July 2025, amended 22nd September 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7894/eng@2025-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.