Sheikh v Creek Container Depot Limited (Environment and Land Petition E003 of 2026) [2026] KEELC 5248 (KLR)
The bottom line
#Kenya's Environment and Land Court in Mombasa confirmed it can hear constitutional land and environment petitions directly, even with complaints pending before NEMA.
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 doctrine of exhaustion under Section 9(2) and (3) of the Fair Administrative Action Act and the Physical and Land Use Planning Act, 2019 bars the Petition
- 2.Whether this Court has jurisdiction to hear and determine the Petition given the pending complaint and investigations before NEMA
- 3.Whether the Preliminary Objection is a pure point of law
Key legal issues
#Applicability of the doctrine of exhaustion
The doctrine of exhaustion does not apply; the issues raised concern violation of property rights and fundamental freedoms which the County Physical and Land Use Planning Liaison Committee has no power to determine, and jurisdiction lies squarely with the ELC.
Relying on the Supreme Court decisions in Abidha Nicholas v Attorney General and Kibos Distillers, and the High Court decision in William Odhiambo Ramogi, the court held that enforcement of fundamental rights is not barred by the exhaustion doctrine where the violations are not mere bootstraps. The Liaison Committee cannot determine alleged violations of rights and fundamental freedoms, so the petition is properly before the ELC.
Effect of pending NEMA complaint and investigations
The pending NEMA complaint does not oust the Court's jurisdiction over this constitutional petition.
The court held that the point regarding the pending NEMA complaint required demonstration by affidavit, and in any event, the matter being a constitutional one, jurisdiction to entertain it vests in the court and not in NEMA.
Legal principles established
#- Where a suit primarily seeks to enforce fundamental rights and freedoms and the constitutional violations are not mere bootstraps, the suit is not barred by the doctrine of exhaustion.
- The jurisdiction to determine alleged violations of constitutional rights to property and a clean environment lies with the Environment and Land Court, not with tribunals or authorities such as the NET, EPRA or NEMA committees.
Court orders
#- 1.The Preliminary Objection dated 8th July 2026 is dismissed
- 2.Costs of the Preliminary Objection to the Petitioner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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 and Section 3 of the National Environmental Management Act (as cited in the petition)
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 of the above is that the Preliminary objection has no basis and is dismissed with costs.
It is the view of this court that the two decisions of the Supreme Court of Kenya resolve the issue as to whether the doctrine of exhaustion is applicable in this matter. I do finds that the same is not applicable and therefore the P.O fails on this point.
That right to access the court for redress of alleged constitutional violations, should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms.
Issues in the judgment
#The name of the respondent is never stated in the judgment extract; the parties are referred to only as 'the Respondent'.
The case number and neutral citation of the petition are not stated in the extract.
The judgment misstates the respondent's preliminary objection as 'the petitioner has raised a preliminary Objection'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sheikh v Creek Container Depot Limited (Environment and Land Petition E003 of 2026) [2026] KEELC 5248 (KLR)", Case Analysis (2026). Not stated in extract (Tracking Number OOH4JU2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5248/eng@2026-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.