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ELCStruck OutPetition dated 23rd December 2025

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)

Environment and Land Court
25 March 2026
2,546 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This Ruling of the Environment and Land Court at Nairobi (Kullow J) determined two preliminary objections by the 1st and 3rd Respondents against a Petition dated 23rd December 2025 challenging approvals for change of user, development permission and an Environmental Impact Assessment licence. The objections contended that the Court lacked jurisdiction because the Petitioner, a welfare association registered under the Societies Act, failed to exhaust the statutory dispute resolution mechanisms under Section 61(3) and (4) of the Physical and Land Use Planning Act, 2019 (appeal to the County Physical and Land Use Planning Liaison Committee) and Section 129 of the Environmental Management and Coordination Act (appeal to the National Environmental Tribunal), as reinforced by Section 9(2) and (3) of the Fair Administrative Action Act. The 3rd Respondent also challenged the Petitioner's locus standi as an unincorporated association. In reply, the Petitioner relied on Articles 22, 258 and 260 of the Constitution to assert standing, and argued that the statutory remedy was unavailable because it only learnt of the July 2025 approvals on 31st October 2025, after the 14-day appeal window, owing to the failure to conduct mandatory public participation. The Court held that the statutory scheme vests primary jurisdiction in the Liaison Committee and the Tribunal, that the exception in Section 9(4) of the Fair Administrative Action Act requires an exemption application which was never made, and that the Petition was therefore prematurely filed. Upholding the objections, the Court struck out the Petition with no orders as to costs, finding it unnecessary to determine the locus standi question.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Preliminary Objections are merited
  2. 2.What orders should issue
  3. 3.Who should bear the costs

Key legal issues

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01

Whether the Court has jurisdiction over the Petition in light of the doctrine of exhaustion

Holding

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.

Reasoning

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.

p. 5
02

Whether a preliminary objection can properly raise the issue of jurisdiction

Holding

Yes; jurisdiction is a pure point of law properly taken as a preliminary objection.

Reasoning

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.

p. 4
03

Whether the Petitioner's locus standi should be determined

Holding

Not determined, as the lack of jurisdiction disposed of the matter.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The Preliminary Objections dated 30th January 2026 and 2nd February 2026 are upheld
  2. 2.The Petition dated 23rd December 2025 is struck out with no orders as to costs

The bench

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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

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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

p. 5

Costs

No orders as to costs – the Petition was struck out 'with no orders as to costs'

Quotable passages

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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.
p. 6final orders – preliminary objections upheld
Consequently, the Petition dated 23rd December 2025 is hereby struck out with no orders as to costs.
p. 6final orders – petition struck out, 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.
p. 5exhaustion 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.
p. 4jurisdiction
It cannot be raised if any facts have to be ascertained or if what is sought is the exercise of Judicial discretion.
p. 4nature of preliminary objections

Issues in the judgment

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minor

Paragraph numbering restarts/duplicates – the 'Issues for Determination' section begins at paragraph 13 although paragraph 13 was already used in the submissions section

minor

The judgment is styled a 'Ruling' on preliminary objections rather than a full judgment disposing of the suit after trial

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, "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.