Mbaazi Avenue Residents’ Association & another v Metricon Home Nairobi Company Limited & 2 others
The bottom line
#Supreme Court dismisses bid to stop Lavington development; interested party cannot appeal alone.
What this practically means
#The Supreme Court dismissed an application to stop a construction project in Lavington, Nairobi. The court said the person who filed the appeal was only an interested party in earlier cases and could not bring the appeal on his own. It also refused to order a halt to the development because the applicants did not prove specific harm to the environment. Finally, the court rejected a request to add new evidence, since that evidence was publicly available and could have been used earlier.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction under Article 163(4)(a) of the Constitution to entertain the appeal.
- 2.Whether the 1st applicant, having been an interested party in the courts below, has locus standi to institute the appeal.
- 3.Whether the applicants are entitled to the conservatory orders sought.
- 4.Whether the applicants should be granted leave to adduce additional evidence.
Key legal issues
#Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution to entertain the appeal.
The court has jurisdiction because the issues in contest before both the High Court and the Court of Appeal turned on the interpretation and application of the Constitution, particularly articles 10, 42, and 69.
The court examined the record and found that the trial court expressly identified and determined constitutional questions, including alleged violations of articles 10, 42, 47, and 69(d) of the Constitution. The Court of Appeal similarly engaged with constitutional issues, framing one central question as whether the ELC erred in failing to find a threat to the right to a clean and healthy environment under article 69(d). Therefore, the appeal meets the jurisdictional threshold under Article 163(4)(a).
Whether the 1st applicant, having been an interested party in the courts below, has locus standi to institute the appeal.
An interested party cannot institute an appeal where none of the principal parties has done so, but the court may exercise its inherent powers to correct the record and direct that the party maintain the status of an interested party.
The court agreed with the respondents that an appeal by an interested party cannot be sustained, citing the principle from Macharia & another v Director of Public Prosecutions & 11 others. However, invoking section 3A and section 23 of the Supreme Court Act, the court directed that the 1st applicant shall henceforth be referred to as an interested party, noting that the dispute between the 2nd applicant and the respondents remains live.
Whether the applicants are entitled to conservatory orders pending appeal.
The applicants are not entitled to conservatory orders because they failed to demonstrate with sufficient precision how their right to a clean and healthy environment is being infringed, and any perceived harm can be adequately remedied through damages or post-judgment directives.
The court applied the principles from Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, requiring the applicant to demonstrate an arguable appeal and that the appeal would be rendered nugatory without the order. The court found that the applicants did not provide clear and cogent evidence of a violation of their right to a clean and healthy environment, and that any harm could be mitigated through damages or directives such as downscaling the development or environmental restoration.
Whether the applicants should be granted leave to adduce additional evidence.
Leave to adduce additional evidence is denied because the applicants failed to account for the delay in producing the evidence, which was a document of public notoriety and could have been obtained with reasonable diligence at the trial court or Court of Appeal.
The court considered the principles under section 20 of the Supreme Court Act and the decision in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others. The court found that the policy in question was a document of public notoriety, and the applicants specifically contested its authenticity at the Court of Appeal without demanding its production. To permit the evidence at this stage would invite the court to undertake factual determinations, which it has consistently declined to entertain.
Legal principles established
#- An interested party cannot file an appeal if no main party has appealed.
- The Supreme Court can hear an appeal if the lower courts decided constitutional issues.
- Conservatory orders require clear proof that harm will occur and that the appeal would be useless without them.
- New evidence on appeal is not allowed if it could have been obtained with reasonable effort earlier.
- The court can use its inherent powers to correct a party's status on the record.
Court orders
#- 1.The motion dated November 18, 2025 and filed on November 20, 2025 lacks merit and is hereby dismissed.
- 2.The 2nd appellant is hereby denoted an interested party to the appeal.
- 3.The costs of the application shall abide the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
Relief refused
#Urgent conservatory orders to halt or limit the 1st respondent's proposed development on LR No 330/155
The applicants have not demonstrated with sufficient precision how their right to a clean and healthy environment is being infringed; any perceived harm may be mitigated through appropriate directives or damages.
Leave to adduce additional evidence comprising records of proceedings, votes, and papers laid before the Nairobi City County Assembly
The applicants have failed to account for the delay in producing the evidence, which was a document of public notoriety and could have been obtained with reasonable diligence at the trial court or Court of Appeal.
Costs
The costs of the application shall abide the appeal.
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.
We are therefore satisfied, without saying more, that the appeal meets the jurisdictional threshold set out under article 163(4)(a) of the Constitution.
In the event, we agree with the 1st respondent that an appeal by an interested party cannot be sustained.
We further find that the applicants have not demonstrated, with sufficient precision, how their right to a clean and healthy environment, in its current state, is being infringed by the respondents' actions.
To permit the motions presented before the Nairobi County Assembly to be introduced at this appellate stage would effectively invite this court to undertake factual determinations—an exercise it has consistently declined to entertain.
The motion dated November 18, 2025 and filed on November 20, 2025 lacks merit and is hereby dismissed.
The costs of the application shall abide the appeal.
Key timeline
#Practical implications
#Interested parties cannot appeal alone
If your client was an interested party in the lower courts, they cannot file an appeal unless a principal party does. The Supreme Court may re-designate them as an interested party on the appeal, but they cannot take over the case. Advise clients to coordinate with a principal party if they want to challenge a decision.
Defending development from environmental orders
Businesses facing environmental challenges to construction can use this ruling. The court requires precise evidence of harm before granting conservatory orders. If the opponent only makes general claims about environmental harm, you can argue the orders should be denied. Ensure your project complies with environmental laws to weaken such claims.
Proving environmental harm to stop projects
If you want to stop a development for environmental reasons, you must gather clear, specific evidence of how your right to a clean environment is being harmed. General statements or fears are not enough. Document pollution, loss of vegetation, or other concrete impacts. Without that, the court will not halt the project.
Frequently asked questions
#Can an interested party appeal a case in the Kenya Supreme Court?+
No. An interested party cannot file an appeal if no principal party has appealed. The Supreme Court can re-designate them as an interested party on the appeal, but they cannot become the main appellant. This was confirmed in Benard M Kinaru v Yu Tang.
What is needed to get a conservatory order in the Supreme Court of Kenya?+
You must show an arguable appeal and that the appeal would be rendered nugatory without the order. You also need precise evidence of how your rights are being violated. General claims of environmental harm are not enough, as seen in this ruling.
How do you appeal to the Supreme Court under Article 163(4)(a) in Kenya?+
The appeal must involve the interpretation or application of the Constitution. Both the High Court and Court of Appeal must have decided constitutional issues. Your case must meet this threshold, as the Supreme Court checks whether constitutional questions were central to the lower courts' decisions.
Can you introduce new evidence during an appeal in Kenya?+
Only with leave of court. You must explain why the evidence was not available earlier. If it was a public document you could have obtained with reasonable diligence, the court will refuse leave. This was the case here where the applicants tried to add a Nairobi policy document that was publicly available.
Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Zizu Investments Limited v National Environmental Authority & 3 others (Environment and Land Constitutional Petition E024 of 2024) [2026] KEELC 5108 (KLR)[2026] KEELC 5108 (KLR)29 Jul 2026applied
- Mutea v Halake & 2 others (Environment and Land Appeal E002 of 2026) [2026] KEELC 4315 (KLR)[2026] KEELC 4315 (KLR)11 Jun 2026applied
- Law Society of Kenya v Karura Golf Range Ltd & 7 others (Environment and Land Petition E003 of 2025) [2026] KEELC 1086 (KLR)[2026] KEELC 1086 (KLR)26 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Mbaazi Avenue Residents’ Association & another v Metricon Home Nairobi Company Limited & 2 others", Case Analysis (2026). Petition (Application) E047 of 2025. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/30/eng@2026-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.