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ELCPartially AllowedPetition No. E001 of 2023

David Chege Kuria & Another v The Hon Attorney General & 7 Others

Environment and Land Court of Kenya
6 October 2026
6,741 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted an EPZ project because the government started construction without consulting residents or completing an environmental assessment first.

What this practically means

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Executive summary

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Two residents of the Gatuanyaga Settlement Scheme, Kiambu County, petitioned under Articles 2, 10, 19, 20, 21, 22, 23 and 165 of the Constitution, challenging the establishment of an Export Processing Zone on land excised from Delmonte Farm (L.R. Nos. 12203/1, 12203/2 and 12158) via Legal Notice No. 201. They sought declarations of unconstitutionality, certiorari, prohibition, mandamus and damages, alleging that the declaration and subsequent works proceeded without public participation, gazette notices, stakeholder engagement or an Environmental Impact Assessment, threatening four wellsprings and a school complex of 2,625 pupils. The 1st to 5th Respondents argued the suit was premature, public participation being reserved for later planning and EIA stages; the National Assembly sought its removal for want of mandate. The Court framed five issues and held that its unappealed ruling of 14/07/2025 on standing was final; that the commencement of works without participation or EIA violated Articles 10, 42, 43(1)(d), 47 and 69 and EMCA and planning statutes; that the exhaustion doctrine did not apply because physical works had already commenced without any participatory process; and that the National Assembly was improperly joined. The petition succeeded in part: declarations of unconstitutionality and rights violations were issued against the 2nd, 7th and 8th Respondents, prohibition and certiorari issued, and mandamus ordered a 90-day public participation exercise and full EIA. Certiorari quashing Legal Notice No. 201 itself and constitutional damages were refused. Each party bears own costs save the 8th Respondent, who bears the Petitioners' costs.

Questions the Court framed

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

  1. 1.Whether the question of the Petitioners' locus standi and the precision of the pleadings, already settled by this Court's ruling of 14/07/2025, remains open for re-litigation
  2. 2.Whether the initiation of the EPZ project violated the Petitioners' fundamental rights under Articles 10, 40, 42, 43, 47, and 69 of the Constitution
  3. 3.Whether the process leading to Legal Notice No. 201 and the works that followed it met the constitutional and statutory threshold for public participation
  4. 4.Whether the Petition is premature and ought to have awaited the licensing and Environmental Impact Assessment stage
  5. 5.What reliefs, if any, are merited, including the propriety of joining the 6th Respondent, the National Assembly

Key legal issues

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01

Locus standi and precision of pleadings

Holding

Settled by the unappealed ruling of 14/07/2025 and not open to re-litigation; pleadings satisfy the Anarita Karimi Njeru precision threshold

Reasoning

The Court held its earlier ruling on jurisdiction and standing final between the parties. Reading the pleadings as a whole, they identify the impugned Legal Notice, affected parcels, water catchments at risk and threatened school complex with sufficient particularity.

p. 21
02

Violation of rights by initiating the EPZ project

Holding

Commencement of works without public participation or EIA violated Articles 10, 42, 43(1)(d), 47 and 69 and EMCA and Physical Planning Act provisions

Reasoning

The Respondents admitted works began before the EIA was finalized and before county land use plan consultations. Applying the Mui Coal Basin standard to uncontroverted facts, the omission was total, not attenuated, and the precautionary principle under section 3(5) EMCA was disregarded.

p. 24
03

Public participation threshold

Holding

The process failed the constitutional and statutory threshold; participation must precede project implementation

Reasoning

Relying on Pauku Wa Kiumbe and Mui Coal Basin, the Court found no prior engagement by the 2nd Respondent, no 21-day gazette notices or ward display by the 8th, and abdication of oversight by the County Assembly under Articles 185(3), 185(4) and 196(1)(b).

p. 22
04

Ripeness and exhaustion

Holding

The Petition is ripe; the exhaustion doctrine does not apply where physical works have commenced without any participatory process

Reasoning

Although administrative processes must generally run their course, intervention is imperative where ongoing physical works threaten imminent and irreversible constitutional harm. The alternative remedy of a later EIA is neither timely nor effective.

p. 25
05

Joinder of the National Assembly

Holding

The National Assembly was improperly joined and struck out for want of a properly pleaded cause of action

Reasoning

Its mandate under Article 95 is confined to legislative oversight; the Petitioners pleaded no session, resolution or omission by the National Assembly bearing on the project. Vague assertions of oversight failure fail the constitutional specificity threshold.

p. 27

Legal principles established

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  • Public participation must be real, calibrated to the scale of the intervention, and undertaken before the event, not offered as an afterthought
  • The exhaustion doctrine does not apply where concrete physical alteration of land use has already occurred without any antecedent participatory process
  • A constitutional petition must plead with precision the specific conduct attributed to each respondent
  • Economic development cannot override constitutional mandates, the precautionary principle, or the socio-economic rights of surrounding communities

Court orders

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  1. 1.Declaration that the actions and decisions of the 2nd, 7th and 8th Respondents in initiating physical development, excavations and setup for the proposed EPZ on L.R. Nos. 12203/1, 12203/2 and 12158 without prior public participation and without a duly approved EIA licence are unconstitutional, illegal, null and void
  2. 2.Declaration that the 2nd, 7th and 8th Respondents violated Articles 10, 42, 43(1)(d), 47 and 69 by failing to conduct meaningful prior public participation and failing to procure an EIA before commencing works
  3. 3.Order of prohibition restraining the 2nd, 7th and 8th Respondents from further construction, excavation or physical development on the suit parcels until the mandamus orders are complied with
  4. 4.Order of mandamus directing the 2nd, 7th and 8th Respondents to conduct, within 90 days, a public participation exercise meeting the Mui Coal Basin standard, including 21-day gazette and ward-level notices, and to procure a full EIA under section 58 of EMCA
  5. 5.Order of certiorari quashing any development approvals, site authorizations or administrative decisions permitting physical works on the suit parcels prior to full statutory compliance
  6. 6.The name of the 6th Respondent, the National Assembly, struck out of the proceedings for want of a properly pleaded cause of action, with no orders as to costs
  7. 7.Each party to bear their own costs save that the 8th Respondent shall bear the Petitioners' costs of the Petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 162(2)(b), 165(3)(d)(i) & (ii) of the Constitution and Section 13 of the Environment and Land Court Act (No. 19 of 2011)

Relief refused

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Sweeping order of certiorari quashing Legal Notice No. 201 in its entirety

Would set at naught a legitimate developmental initiative on account of a curable procedural default rather than an incurable substantive defect

p. 27

General and constitutional damages

No quantifiable loss established beyond the vindication supplied by the declarations and injunctive/mandatory orders

p. 28

Claims against the 6th Respondent (National Assembly)

No specific act or omission of the National Assembly causally linked to the impugned Legal Notice was pleaded

p. 26

Finding that the mere gazettement of Legal Notice No. 201 per se was unlawful

Section 15(1) of the EPZ Act does not make prior public participation a condition precedent to the initial declaration

p. 24

Costs

Each party shall bear their own costs save that the 8th Respondent shall bear the Petitioners' costs of the Petition; the 6th Respondent 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.

A declaration be and is hereby issued that the actions and decisions of the 2nd, 7th, and 8th Respondents in initiating physical development, excavations, and setup for the proposed Export Processing Zone on L.R. Nos. 12203/1, 12203/2, and 12158 without prior public participation and without a duly approved Environmental Impact Assessment license are unconstitutional, illegal, null, and void.
p. 29Final orders - declaration of unconstitutionality
An order of mandamus is hereby issued directing the 2nd, 7th and 8th Respondents to conduct, within ninety (90) days of this judgment, a public participation exercise meeting the standard set out in Mui Coal Basin Local Community v Permanent Secretary Ministry of Energy
p. 30Final orders - mandamus for public participation and EIA
The name of the 6th Respondent, the National Assembly, is hereby struck out of these proceedings for want of a properly pleaded cause of action against it with no orders as to costs.
p. 31Final orders - striking out National Assembly
each party shall bear their own costs save that the 8th Respondent shall bear the Petitioners' costs of the Petition.
p. 31Final orders - costs
To commence ground operations or designate development zones without transparent public involvement and a prior, rigorous Environmental Impact Assessment report violates the constitutional standard of administrative fair action and the fundamental right to a clean and healthy environment.
p. 22Public participation as constitutional imperative
The Court cannot fold its arms and wait for ecological degradation to reach a point of no return under the guise that administrative bodies are yet to finalize their internal statutory processes.
p. 28Limits of prematurity defence in environmental claims

Issues in the judgment

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minor

Respondent name misspelled 'CABINENT SECRETARY' throughout the cause title

minor

School parcel described as reserved under the Settlement Plan in one passage and reserved for a shopping centre in another

minor

Submissions dated 2026 in a petition dated 18/12/2023, with an unexplained interim ruling date of 14/07/2025

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, "David Chege Kuria & Another v The Hon Attorney General & 7 Others", Case Analysis (2026). Petition No. E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6210/eng@2026-10-06

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