Thome V Resident Welfare Association (Suing on behalf of the Residents of Thome V Estate, Nairobi) v Nairobi City County & 2 others (Petition E109 of 2025) [2026] KEELC 1852 (KLR)
The bottom line
#A residents' association's petition challenging land development approvals was struck out because it skipped the required appeals to statutory bodies first.
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 Preliminary Objections are merited
- 2.What orders should issue
- 3.Who should bear the costs
Key legal issues
#Whether the Court has jurisdiction over the Petition in light of the doctrine of exhaustion
The Petition was filed prematurely; the Court lacks original jurisdiction because the Petitioner did not first appeal to the County Physical and Land Use Planning Liaison Committee or the National Environmental Tribunal, and made no Section 9(4) FAAA exemption application.
The Act establishes a comprehensive dispute resolution framework vesting primary jurisdiction in the Liaison Committee, with the ELC exercising appellate jurisdiction. Section 129 EMCA routes EIA licence grievances to the NET. No exceptional circumstances or exemption application under Section 9(4) FAAA were demonstrated, so the statutory remedies had to be exhausted first.
Whether a preliminary objection can properly raise the issue of jurisdiction
Yes; jurisdiction is a pure point of law properly taken as a preliminary objection.
Applying Mukisa Biscuits and Quick Enterprises, a preliminary objection must be capable of disposing of the matter without ascertaining facts. The exhaustion issue turned on the pleadings alone and thus qualified as a pure point of law.
Whether the Petitioner's locus standi should be determined
Not determined, as the lack of jurisdiction disposed of the matter.
Having found it lacked jurisdiction, the Court was obliged to down its tools per Owners of Motor Vessel 'Lillian S' and could make no further step, rendering the locus standi question unnecessary to decide.
Legal principles established
#- Where a statute provides a clear procedure for the redress of a grievance, that procedure must be strictly followed before resorting to the courts
- A court without jurisdiction must down its tools immediately
- The only exception to the exhaustion doctrine under the Fair Administrative Action Act is via an exemption application under Section 9(4) demonstrating exceptional circumstances
Court orders
#- 1.The Preliminary Objections dated 30th January 2026 and 2nd February 2026 are upheld
- 2.The Petition dated 23rd December 2025 is struck out with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 70 and 162(2)(b) of the Constitution of Kenya, 2010 (invoked by the Petitioner); challenged under the doctrine of exhaustion per Section 61(3)-(4) of the Physical and Land Use Planning Act, 2019 and Section 9(2)-(3) of the Fair Administrative Action Act
Relief refused
#Continuation of the Petition / assumption of original jurisdiction over the constitutional challenge
Failure to exhaust statutory remedies under Section 61(3) of the Physical and Land Use Planning Act, 2019 and Section 129 of EMCA, and absence of an exemption application under Section 9(4) of the Fair Administrative Action Act
Costs
No orders as to costs – the Petition was struck out 'with no orders as to 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.
The upshot is that the Preliminary Objections dated 30th January 2026 and 2nd February 2026 are merited and are hereby upheld.
Consequently, the Petition dated 23rd December 2025 is hereby struck out with no orders as to costs.
In the circumstances, this Court finds that it lacks original jurisdiction to entertain the present Petition, the same having been filed in contravention of the doctrine of exhaustion of statutory remedies.
A Court of law downs it tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
It cannot be raised if any facts have to be ascertained or if what is sought is the exercise of Judicial discretion.
Issues in the judgment
#Paragraph numbering restarts/duplicates – the 'Issues for Determination' section begins at paragraph 13 although paragraph 13 was already used in the submissions section
The judgment is styled a 'Ruling' on preliminary objections rather than a full judgment disposing of the suit after trial
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thome V Resident Welfare Association (Suing on behalf of the Residents of Thome V Estate, Nairobi) v Nairobi City County & 2 others (Petition E109 of 2025) [2026] KEELC 1852 (KLR)", Case Analysis (2026). Petition dated 23rd December 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1852/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.