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ELCDismissedELC Petition No. E001 of 2026· [2026] KEELC 5726 (KLR)

Christopher Wainaina Mburu & Another v National Environment Management Authority & Others

Environment and Land Court
22 September 2026
3,732 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Murang'a refused to halt a biofuel plant's operations because conflicting evidence about the area's zoning left it unable to rule at this early stage.

What this practically means

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Executive summary

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The two Petitioners, residents of Kenol Town in Murang'a County, moved the Environment and Land Court by notice of motion dated 15-5-2026 seeking interim relief in a constitutional petition against NEMA, the County Government of Murang'a, the County CECM for Housing and Physical Planning, and Kings Biofuels Limited, which operates an industrial charcoal briquette/biofuel plant adjacent to their homes. They sought a temporary injunction halting the plant's operations, conservatory orders restraining NEMA from issuing or regularising EIA licences, police enforcement assistance, and a locus in quo inspection, alleging air and noise pollution, regulatory non-compliance, and failure by the authorities to enforce EMCA and PLUPA obligations. The 2nd and 4th Respondents opposed, asserting valid EIA and audit approvals, change of user and development permission, compliance with air and noise regulations, and that the area is industrial. The court found the affidavit evidence on zoning and the plant's location squarely conflicting, noted the Petitioners did not state the distance between their home and the plant, and observed that the change of user approval asserted by the 4th Respondent was not annexed to the replying affidavit. Unable to resolve these questions at the interlocutory stage, the court declined all interim relief. It held exhaustion of alternative remedies was no bar under Article 22(3)(d) and Section 9(4) of the Fair Administrative Action Act, and admitted the 2nd Respondent's late affidavit on fair-hearing grounds. The motion was disallowed with costs in the cause.

Key legal issues

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01

Whether the conservatory/injunction threshold was met

Holding

Not met - conflicting affidavit evidence on zoning and proximity left the court unable to make even a preliminary finding

Reasoning

The Petitioners deposed the area is residential/agricultural while the 2nd and 4th Respondents deposed it is industrial with several factories. The Petitioners did not state the distance from their home to the plant, and the material did not clarify whether the parcels abut. The court held clarity was necessary before a fair decision could be made and declined to grant interim relief.

p. 9
02

Whether the change of user approval was demonstrated

Holding

The approval was not annexed to the replying affidavit as it ought to have been, leaving the location question unresolved

Reasoning

The 4th Respondent asserted the change of user approval had been obtained, citing its own replying affidavit, but the document itself was not annexed. The court held it ought to have been annexed and that uncertainty on the plant's location persists until all pleadings are filed, defeating the prima facie case on planning authority.

p. 10
03

Exhaustion of alternative remedies

Holding

Not a bar; the Petitioners are exempt under Article 22(3)(d) and Section 9(4) FAAA

Reasoning

The court agreed with Petitioners' counsel that statutory remedies were neither adequate nor efficacious given continuing violations, and that Article 22(3)(d) empowers the court to dispense with exhaustion requirements in the interests of justice, with Section 9(4) of the Fair Administrative Action Act permitting direct court access where administrative review is inadequate.

p. 10
04

Evidentiary effect of the 2nd Respondent's late affidavit

Holding

Late affidavit admitted because the Petitioners did not oppose it and fairness under Article 50(1) requires considering all evidence

Reasoning

The affidavit was due by 29-7-2026 but was filed on 31-8-2026, over a month late. The court was surprised to see it but considered it because excluding it would be neither fair nor just, noting a supplementary affidavit in rebuttal would also have been considered. Non-filing by the 1st and 3rd Respondents attracted no adverse inference as they had a right not to respond.

p. 10

Legal principles established

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  • Section 9(4) of the Fair Administrative Action Act and Article 22(3)(d) of the Constitution exempt a party, in suitable cases, from the doctrine of exhaustion
  • A fair hearing under Article 50(1) includes accommodating late filing and considering all evidence on record

Court orders

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  1. 1.The notice of motion dated 15-5-2026 is not allowed
  2. 2.Costs in the cause
Jurisdiction invoked
Article 165(3)(d) Constitution; Section 13 Environment and Land Court Act; Article 70(1) Constitution

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, "Christopher Wainaina Mburu & Another v National Environment Management Authority & Others", Case Analysis (2026). ELC Petition No. E001 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5726/eng@2026-09-22

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