Kassam & 12 others v Exotic Real Estates Limited & 12 others (Environment and Planning Petition E002 of 2024) [2026] KEELC 3221 (KLR)
The bottom line
#A Nairobi court dismissed residents' challenge to a 19-storey apartment development because they lacked expert evidence proving real environmental harm.
What this practically means
#Executive summary
#Key legal issues
#Competency and specificity of the constitutional petition
The Petition met the minimum threshold of specificity and was competent
The doctrine of exhaustion had already been determined in the court's ruling of 15th August 2024 and was moot. On specificity, applying Anarita Karimi Njeru and Communications Commission of Kenya v Royal Media Services, the court held the Petitioners identified the constitutional rights, the acts complained of, and the specific Respondents. Whether they would prove the allegations went to the merits, not competency.
Whether excavation commenced without requisite statutory approvals
Yes - excavation commenced on or about 20th December 2023 before compliance with the conditions of the development permission, before the signboard was erected and before the NEMA EIA licence was issued
The court applied Sangahani to hold excavation constituted development under PLUPA. The Petitioners' evidence was corroborated by Mr Akivaga of the County, who admitted enforcement officers found works had commenced without signboards and without an EIA licence. All other permissions were admittedly issued after excavation began, so the works commenced before compliance with all mandatory statutory and regulatory conditions.
Legal effect of approvals subsequently issued
The subsequent approvals are legitimate and not liable to nullification absent cogent evidence of fraud, illegality, irrationality or want of jurisdiction
The Petitioners sought no reliefs quashing the approvals; even disregarding that, no clear evidence displaced the presumption of regularity articulated in Export Processing Zones Authority v NEMA and applied in Kibos Distillers. The approvals remain subject to continuous supervision and enforcement by the issuing authorities, including suspension, enforcement notices and revocation for breach of conditions.
Whether constitutional violations under Articles 35, 42, 47, 69 and 70 were established
No - no distinct and independent constitutional violations were proved warranting the reliefs sought
No expert reports, environmental audits, scientific studies or technical reports established actual environmental degradation. The alleged harm was anticipatory and speculative; the EIA report and licence addressed mitigation. On Article 35, the material did not show a formal refusal to provide information sufficient for an independent violation. Article 47 was not established either.
Legal principles established
#- Excavation activities on land constitute 'development' under PLUPA and require prior compliance with the applicable planning and environmental framework before commencement
- Development commenced before compliance with mandatory conditions attached to approval is non-compliant, but subsequent approvals lawfully issued by competent statutory bodies are presumed regular absent cogent evidence of fraud, illegality, irrationality or want of jurisdiction
- A petitioner seeking redress for constitutional violations must plead with clarity, specificity and particularity, identifying the infringed provision, the manner of infringement and the nexus to the impugned conduct
- Apprehended inconvenience must be distinguished from proof of actual constitutional violations; environmental petitions require credible expert or technical evidence rather than speculation
Court orders
#- 1.The Petition is dismissed
- 2.No orders as to costs (the Petition having been filed in the public interest)
- Jurisdiction invoked
- Original constitutional petition jurisdiction under Article 22 of the Constitution read with the Environment and Land Court Act; reliefs anchored on Articles 35, 42, 47, 69 and 70
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kassam & 12 others v Exotic Real Estates Limited & 12 others (Environment and Planning Petition E002 of 2024) [2026] KEELC 3221 (KLR)", Case Analysis (2026). ELC EP. PET. NO. E002 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3221/eng@2026-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.