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ELCDismissedPetition dated 21st May 2025· [2026] KEELC 1913 (KLR)

Center for Litigation on Environment and Governance - CLEG v State Law Office & 4 others (Environment and Land Petition E004 of 2025) [2026] KEELC 1913 (KLR)

Environment and Land Court
12 March 2026
1,902 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled an NGO can sue on behalf of an elderly landowner, sending his access-road dispute to a full hearing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa determined a Notice of Preliminary Objection dated 27th May 2025 raised by the Coast Regional Surveyor and Mombasa County Land Settlement Officer (2nd and 3rd Respondents), supported by the Attorney General, seeking to strike out a petition and application dated 21st May 2025. The Petitioner, CLEG, sued on behalf of Mr. Fulgence Mwanyalo Kisomba, a 75-year-old owner of Plots Nos. 1683 and 1693 in Ziwa La Ngombe, Mombasa, over a decade-long failure by the 1st Respondent to remove obstructions to access roads despite a survey confirming no encroachment. The Objectors argued lack of locus standi, failure to exhaust statutory remedies under PLUPA and the Public Roads and Roads of Access Act, and lack of constitutional particularity per Anarita Karimi Njeru. The court rejected all three grounds. On standing, it held that Articles 21, 22, 23, 258 and 260 widen the class of persons entitled to sue and that CLEG, a registered PBO with a letter of authorization from the affected citizen, had standing. On exhaustion, it took judicial notice that the Mombasa County Physical and Land Use Planning Liaison Committee is non-operational and lacks jurisdiction over constitutional violations. On particularity, the court found the violations of Articles 40(3), 62(4), 42, 47 and 57 sufficiently pleaded. The objection was rejected, the petition directed to proceed to full hearing, with timelines for replies, submissions and judgment, and costs abiding the outcome.

Key legal issues

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01

Locus standi of a registered Public Benefit Organization acting on behalf of a citizen

Holding

CLEG, a registered PBO with a letter of authorization from Mr. Fulgence, has standing to sue under Articles 21, 22, 23, 258 and 260 of the Constitution.

Reasoning

The court held that restrictive interpretations of standing are at odds with the transformative 2010 Constitution. Article 260 defines 'person' to include associations, and Article 258(1) allows every person to institute constitutional proceedings. The Petitioner produced its registration certificate and KRA PIN, and a Letter of Authorization from the affected citizen, showing it acts on a specific mandate rather than as a busy-body, satisfying representative-action principles.

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02

Doctrine of exhaustion

Holding

The doctrine of exhaustion does not apply because the Mombasa County Physical and Land Use Planning Liaison Committee is not operational and cannot adjudicate constitutional violations.

Reasoning

The court took judicial notice that the County Liaison Committee is not sitting. Following Abidha Nicholas v Attorney General, the mandate to determine constitutional violations lies with the ELC under Articles 22, 23(3) and 162(2)(b). Deferring a 75-year-old man to a non-existent statutory body would deny justice, and absence of a functional committee renders exhaustion inapplicable.

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03

Constitutional particularity (Anarita Karimi Njeru threshold)

Holding

The petition satisfies the particularity threshold by clearly pleading violations of Articles 40(3), 62(4), 42, 47 and 57.

Reasoning

The court found the petitioner clearly pleaded that the 1st Respondent violated the right to property under Article 40(3) by approving developments obstructing access to the plots, violated Article 62(4) regarding disposal of public land, and infringed the right to a clean environment under Article 42. The 11-year delay engaged Articles 47 and 57. The violations were sufficiently pleaded to merit a full hearing.

p. 4

Legal principles established

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  • Where a suit primarily seeks to enforce fundamental rights and freedoms and the constitutional violations are not mere bootstraps, it is not barred by the doctrine of exhaustion.
  • Article 258(1) gives every person, including unincorporated associations, the right to institute proceedings claiming constitutional contravention, breaking traditional strictures of locus standi in constitutional adjudication.

Court orders

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  1. 1.The Preliminary Objection dated 27th May 2025 is without merit and is hereby rejected.
  2. 2.The Petition shall proceed to a full hearing on its merits.
  3. 3.The respondents to file and serve their reply to petition within 21 days.
  4. 4.The petitioner to file and serve supplementary affidavit with submissions within 21 days of service.
  5. 5.The respondents to file submissions within 21 days of service.
  6. 6.Judgment on 21st May 2026.
  7. 7.Costs shall abide the outcome of the Petition.
Jurisdiction invoked
Articles 22, 23(3) and 162(2)(b) of the Constitution as read with Section 4(1) of the Environment and Land Court 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, "Center for Litigation on Environment and Governance - CLEG v State Law Office & 4 others (Environment and Land Petition E004 of 2025) [2026] KEELC 1913 (KLR)", Case Analysis (2026). Petition dated 21st May 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1913/eng@2026-03-12

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