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ELCOtherNot stated in the judgment· [2026] KEELC 1343 (KLR)

Northern Block Residents Limited v Air View Properties Limited & 2 others (Environment and Planning Petition E042 of 2025) [2026] KEELC 1343 (KLR)

Environment and Land Court
4 February 2026
TMT. MURIGI
2,625 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear constitutional environmental cases even when statutory appeal routes haven't been used first.

What this practically means

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Executive summary

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The Petitioner, Ruth Ndesandjo, filed a Petition in the Environment and Land Court alleging that the Respondents' actions and omissions relating to a proposed development on Land Reference Number 17/433 within Kitusuru Estate violated her rights under Articles 10, 35, 40, 42, 47, 69 and 70 of the Constitution. She sought declarations that the licenses and approvals issued by the 2nd and 3rd Respondents were unconstitutional, certiorari to quash them, a prohibition against construction and demolition works, mandamus for the disclosure of records, and orders for fresh approvals, together with a Notice of Motion seeking conservatory orders. The 1st Respondent filed a Preliminary Objection contending that the court lacked jurisdiction because the Petitioner failed to exhaust the statutory dispute resolution mechanisms under Sections 125 and 129 of the Environment Management and Coordination Act and Sections 40(4), (7), 76 and 80 of the Physical and Land Use Planning Act, and that the Petition disguised administrative issues as constitutional ones, invoking constitutional avoidance. Relying on Mukisa Biscuits and Oraro v Mbaja on the nature of preliminary objections, and on Owners of Motor Vessel 'Lillian S', Samuel Kamau Macharia, Speaker of the National Assembly v Karume and Geoffrey Muthinja Kabiru on jurisdiction and exhaustion, the court held that the statutory remedies under EMCA and PLUPA cannot oust the court's original jurisdiction to enforce constitutional rights. Because the Petition raised constitutional and environmental rights and public participation issues, the court found it had jurisdiction and dismissed the Preliminary Objection with costs to the Petitioner. The Petition itself was set down for full hearing, not decided on the merits.

Key legal issues

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Whether the court has jurisdiction over the Petition notwithstanding unexhausted statutory remedies under EMCA and PLUPA

Holding

The court has jurisdiction because the Petition raises constitutional and environmental rights and public participation issues that statutory tribunals cannot adequately address

Reasoning

The court accepted that Sections 125 and 129 of EMCA and Sections 40, 76 and 80 of PLUPA provide statutory remedies through the National Environment Tribunal and County Liaison Committees. However, it held that the exhaustion doctrine is not absolute where constitutional rights are at stake, following Mukisa Biscuits and Oraro on the nature of a preliminary objection, and Lillian S and Macharia on jurisdiction. Since the Petition raises protection of constitutional and environmental rights and public participation, the court found jurisdiction and dismissed the objection.

p. 6
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What constitutes a valid preliminary objection

Holding

A preliminary objection must be a pure point of law, not blurred with factual detail

Reasoning

The court restated the classic formulation in Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd, citing Law JA, and adopted Ojwang J's statement in Oraro v Mbaja that an objection embedding factual aspects calling for proof is not a true preliminary objection. The court found the objection before it was one of law concerning jurisdiction and exhaustion, and therefore proper for determination at the threshold.

p. 4

Legal principles established

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  • Statutory remedies under EMCA and PLUPA cannot oust the Environment and Land Court's original jurisdiction to enforce constitutional rights
  • The doctrine of exhaustion is not absolute in matters involving constitutional issues

Court orders

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  1. 1.The 1st Respondent's Notice of Preliminary Objection dated 5th November 2025 is dismissed
  2. 2.Costs of the Preliminary Objection to the Petitioner
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act; Section 33 of the Environment Management and Coordination Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Northern Block Residents Limited v Air View Properties Limited & 2 others (Environment and Planning Petition E042 of 2025) [2026] KEELC 1343 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1343/eng@2026-02-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.