Seii & 10 others v Nairobi City County Government & 8 others

MAMO B. MAMO ......................................................................... 7TH RESPONDENT CATHELINE THAITHI ................................................................ 8TH RESPONDENT BLISSFUL RESIDENCE INVESTMENT LIMITED .................. 9TH RESPONDENT (An application for a stay of execution of the Ruling and Order of the Environment and Land Court at Nairobi (A. Omollo J.) delivered on 16th September 2024 in ELC Petition No E019 of 2024) RULING 1. The Applicants herein have brought an application dated 27th September 2024 seeking orders of a stay of execution of the ruling and order made on 16th September 2024 by the Environment and Land Court in ELC Petition no E019 of 2024, Jerotich Seii &10 others v Nairobi County Government & 8 others ; a conservatory order stopping, halting and discontinuing any development and construction activities on the property known as Nairobi/ Block 17/392- Kilimani Area, and stay of proceedings in ELC Petition No E019 of 2024, Jerotich Seii & 10 others v Nairobi County Government & 8 others pending the hearing and determination of their appeal against the ruling of 16th September 2024. 2. The background to the application in brief is that the Applicants led a Petition in the ELC on 13th June 2024, in which they claim to be owners, occupiers and/ or residents of properties developed and erected along Ndemi Road in Kilimani Area, Nairobi county, and that their properties and residence are opposite or near the property known as Nairobi/ Block 17/392 (hereinafter “the suit property”) on which a development of residential apartments is proposed by Blissful Residence Investment Limited, the 9th Respondent herein. Further, that the area along Ndemi Road and the entire Kilimani Area was an up-market Zone 4, with residential houses being largely single dwellings, with a community highly committed to environmental protection and that adhered to principles of development activities that were environmentally sustainable. 3. The other Respondents sued in the said Petition were the Nairobi City County (the 1st Respondent herein), Patrick Analo Akivaga (the 2nd Respondent herein) who is the Ag. County Secretary and Head of County Public Service, and also the Head of Urban Development and Planning Department of the 1st Respondent; Stephen Gathuita Mwangi (the 3rd Respondent herein), the County Executive Committee Member (CECM) of the 1st Respondent in charge of Built Environment And Urban Planning Sector; Tom Achar (the 4th Respondent herein) a Development Ocer of the 1st Respondent; Georey Muturi Murumia (the 5th Respondent herein), an employee of the 1ˢᵗ Respondent’s Environment Department; the National Environment Management Authority (the 6th Respondent herein); Mamo B. Mamo (the 7th Respondent herein) who is the Director-General of the 6ᵗʰ Respondent; and Catheline Thaithi (the 8th Respondent herein), who is the County Director of the 6ᵗʰ Respondent. 4. The Applicants’ case was that on 10th February 2024, they wrote to the 6th Respondent to inquire if they were aware of the proposed construction and opposed the development, giving clear reasons and grounds for opposition and objection. On 17th February 2024, the Applicants were invited to a meeting held on the suit property where they were informed of the 9th Respondent’s proposal to construct an 18 storey, 4 block residential apartments of 394 units, 3 basements for parking, underground recreational facilities, 144 one bedroom units, 108 two bedroom units, 54 three bedroom units and 18 four bedroom units. Further that development permits had been obtained from the 1st Respondent. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1929/eng@2024-12-20 2

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The Applicants asserted that the documents were not provided, neither was a further meeting held to enable them to give rational and informed views and opinions on the proposed development. 5. However, that on 27th May 2024, after hearing activity taking place on the suit property and upon investigations, the Applicants established that there were people felling and cutting down age-old trees, vegetables and other ora, and were shown a letter by the 5th Respondent from the 1st Respondent which stated that the 9th Respondent was issued with a certicate approving cutting of 10 trees to pave the way for construction of residential apartments, with a condition that the trees cut down be replaces with at least 30 tree seedlings of suitable species. On 27th May 2024, the Applicants wrote an urgent letter to the 9th Respondent demanding immediate and complete stoppage and halting of the ongoing activities on the suit property and restoration of the suit property to its original condition, which letter was copied to the 1st Respondent, 2nd Respondent, and 3rd Respondent, and also requesting immediate action against the 5th and 9th Respondents. On 29th May 2024, development activities on the suit property resumed after the Applicants were shown a letter of the same date of approval by the 1st, 2nd and 3rd Respondents. 6. The Applicants accordingly sought various prayers in their Petition against the Respondents, including declarations of violations of their rights, mandatory injunctions against the Respondents, general damages and cost of the petition. Contemporaneously with the Petition, the Applicants led a Notice of Motion in the ELC dated 13th June, 2024 seeking conservatory orders of temporary injunction stopping, halting and discontinuing the 9th Respondent from undertaking any further development and construction activities on the suit property, and compelling the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Respondents, jointly and/or severally, to take immediate measures to stop, prevent or discontinue any development, or any omission deleterious to the environment on the property pending the hearing and determination of the application and Petition . 7. The said application was opposed by the 1st to 5th Respondents and 9th Respondent who led replying adavits thereto. The 6th to 8th Respondents on their part led a preliminary objection dated 16th July, 2024 stating that the Applicants ought to have rst approached the National Environment Tribunal (NET) by way of appeal, challenging the alleged irregular grant and/or violation of the conditions of the EIA License. The ELC, in the impugned ruling delivered on16th September 2024 found that the NET does not have the jurisdiction to determine alleged violations of the Constitution, and was not persuaded that the issues raised in the Petition can be determined by the NET nor can it grant the reliefs sought thereof. 8. In addition, that the presence or absence of the land use and plan which forms the basis for approval of the 9th Respondent raises an important question of law which creates a prima facie case by the applicant, and the 9th Respondent had in its replying adavit undertaken to plant the trees but fell short of explaining where the 60 seedlings would be planted taking into consideration that the nature of its development. Therefore, the concerns raised by the Applicants that the development would be deleterious to the environment were not farfetched, and the issues raised by the Applicants merited the grant of some form of preservative orders. 9. The ELC thereupon concluded as follows in the said ruling: “ The next question is what orders ought to be granted in the circumstances while balancing the interests of both parties based on the documents placed before the court. I ask the said question because the 9th Respondent has annexed copies of notication of approvals granted to it by the relevant bodies (the 1st and 6th Respondents). Whether those approvals were granted procedurally or otherwise forms part of the issues for determination during https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1929/eng@2024-12-20 3

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the hearing. Secondly, the Applicants complaints relate at this stage to the number of levels permitted in the subject area and when the cut trees shall be replaced and which in my view does not constitute irreparable damage. The purpose of the orders sought is to ensure the Petitioners’ rights and those of the environment are preserved pending the hearing and determination of the Petition. Consequently, the balance of convenience tilts in allowing the application in terms of prayer 4 of the motion but with a variation that the 9th Respondent’s development and construction activities shall not go beyond 4-level oors pending hearing and determination of the Petition and subject to their displaying the Site board on the subject property as required by the National Construction Authority (NCA) Act.” 10. The Applicants are aggrieved by this order, which they seek to be stayed in the instant application, among other orders as indicated earlier on in this ruling. The Applicants accordingly led a Notice of Appeal dated 17th September 2024 on which the present application is anchored; a Record of Appeal dated 26th September 2024; and a Memorandum of Appeal dated 26th September 2024 raising 14 grounds of Appeal. The grounds for their application is that their Memorandum of Appeal raises triable issues of both law and fact, including that (i) the Learned Trial Judge erred in law in granting orders that were not prayed for or sought by the Applicants; (ii) the 9th Respondent had not applied for, and was not granted development approval by the 1st to 3rd Respondents to develop and construct 4-level oors on the subject property; and (iii) development and construction of 4-level oors will be illegal and irregular and will be deleterious to the environment. 11. Additionally, that the 9th Respondent has given clear indications that it intends to, and has indeed proceeded with development activities on the suit property by inter alia, displaying a site board next to the subject property as allowed and directed by the ELC, erecting hoarding walls around the property , and the Applicants are apprehensive that excavation and full construction activities will commence any time now.The applicants maintained that the construction will be deleterious to the environment on the subject property, and will also continue subjecting the Applicants and the general public to denial, violation and infringement of their rights to access to information, to life and to a clean and healthy environment since the 9ᵗʰ Respondent is yet to, inter alia, replace the trees and ora felled in May 2024 and further, have the construction of 4-level oor approved and licenced by the 1st to 8th Respondents and other agencies. Lastly, that execution will render the appeal led herein nugatory, given that by the time the appeal is heard and determined, construction of the 4-level oors will have been long completed and occupied, and the space to, inter alia, plant the 60 trees on the subject property, consumed and sub- subsumed by the constructed 4-level oors. 12. The 1st to 5th Respondents opposed the application through a replying adavit sworn on 3rd October 2024 by the 2nd Respondent, who asserted that all procedures had been duly followed in granting the 9th Respondent approvals to develop the suit property that prior to the ling of the petition, and the development was legal. Further, that the 9th Respondent was within its right to start development on the suit property and the Applicants had not demonstrated that they shall suer a substantial loss. 13. The 9th Respondent similarly opposed the application by way of a replying adavit sworn on 3rd October 2024 by Jing Jing Qu, its Director, who deponed that the impugned ruling of 16th September 2024 was obtained by misrepresentation and deceit from the Applicants, who misled the Court into https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1929/eng@2024-12-20 4

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giving its ruling under a mistaken belief that the 9th Respondent had commenced construction on the subject property without the requisite procedural approvals, leading to the Court delivering a misguided presumption that the 9th Respondent was already underway with construction of an illegal project. The 9th Respondent reiterated that it had duly applied for the necessary approvals. Further, that their claim that the construction by the 9th Respondent would be illegal and deleterious to the environment was unsubstantial and highly speculative, and that the Applicants were not occupiers, owners and/ or residents of the house and/ or properties along Ndemi Road, Kilimani Area and were insisting on rights they did not have. 14. The 9th Respondent further contended that due to the Applicants’ claims, potential buyers/ investors in the development had since retreated causing it signicant nancial losses including commitment made through the sale of several apartments o plan, and a stay of the orders of the trial Court would exacerbate the losses and disrupt its legitimate operations. It was their assertion that should this Court be inclined to issue the orders of stay pending appeal, the Applicants should be ordered to furnish security, and contested the Applicants’ claim that the environmental impact of the construction would be immeasurable, irretrievable, irreparable and irrecoverable since there was no substantial evidence presented to support the assertion. Furthermore, there were multiple developments taking place adjacent to Nairobi/ Block 17/392- Kilimani Area, Nairobi and had not aected the Applicants and thus their fears were speculative and greatly unfounded. Lastly, that even if the Applicants could demonstrate a potential infringement of their rights, any alleged harm could be addressed through monetary damages, negating the need for the drastic remedy of stay. 15. We heard the application on 13th November 2024 through this Court’s virtual platform, when learned counsel Mr. Ndambiri, appeared for the Applicants, while learned counsel Mr. Trevor Omondi Oduor, holding brief for learned counsel Ms. Omondi, appeared for the 9th Respondent. The two counsel highlighted their respective submissions that they lodged with this Court dated 9th October 2024 and 11th October 2024. There was no appearance for the 1st to 8th Respondents despite their advocates having been duly served with the hearing notice. We however noted that there were written submissions dated 17th October 2024 on record, led by the advocates for the 1st to 5th Respondents. 16. The principles applicable to the exercise of this Court’s discretion under Rule 5 (2) (b) of the Court of Appeal Rules of 2022 to grant an order of stay are well settled. An applicant has to satisfy two requirements. Firstly, that he or she has an arguable appeal. Secondly, unless an order of stay is granted, the intended appeal would be rendered nugatory. These principles have been restated and amplied by this Court in Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others [2013] eKLR. In addition, this Court exercises original jurisdiction under Rule 5 (2)(b) as held in Ruben & 9 others v Nderitu & Another (1989) KLR 459. 17. On the rst limb of arguability, Mr. Ndambiri reiterated their grounds of appeal and submitted that the Applicants had made a strong case that satised the twin principles enumerated above, and that if the execution of the impugned ruling and further proceedings are not stayed, the Applicants will be greatly prejudiced and will be subjected to environmental loss, suering and damage that is immeasurable, irreparable, irreversible, irremediable, irretrievable and irrecoverable. Mr. Oduor was of a contrary view, and submitted that the learned Judge permitted the construction up to four oors on the strength that the 9th Respondent had procured all the permits; the claim that the proposed development will be deleterious to the environment was speculative; and that the Applicants can be compensated by damages, yet they will not be able to compensate the 9th Respondent for the nancial losses it will incur if the construction is stayed. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1929/eng@2024-12-20 5

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18. The advocates for the 1st to 5th Respondents on their part asserted in their submissions that the ELC sought to balance the interest of all parties; all procedures had been duly followed in granting the 9th Respondent approvals to develop the suit property; and the Applicants therefore did not establish an arguable case. On whether the intended appeal would be rendered nugatory if the interim orders were denied, that no loss that would be occasioned to the Applicants should the 9th Respondent proceed up to the fourth oor as the environmental impacts had detailed adequately been combatted by the replacement of the trees cut down during the construction process. Further, NEMA also furnished the 9th Respondent with an Environmental Impact Assessment License hence all the environmental concerns had been adequately catered for. 19. We have considered the application, the adavits and the rival submissions against the principles guiding the Court in an application of this nature as stated by the Court in Stanley Kangethe Kinyanjui v Tony Ketter & Others (supra). As regards whether the intended appeal is arguable, we note that there is an issue raised in the Memorandum of Appeal as to whether the proposed developments by the 9th Respondent, and those allowed by the ELC were legal for want of the requisite approvals and permissions, and their eect on the environment. In addition, it is alleged that the orders granted by the ELC in the impugned ruling were not pleaded. Bearing in mind that an arguable appeal is not one that will necessarily succeed but one that deserves the attention of the court, we are persuaded that the intended appeal is not frivolous. It is indeed arguable. 20. As to whether the intended appeal will be rendered nugatory, the object of the exercise of discretion under Rule 5(2)(b) of the Court of Appeal Rules is to preserve the subject matter of the appeal. The Applicants maintain that the proposed developments on the suit property will have adverse eects on the environment. The 9th Respondent is of the view that any such adverse eects can be compensated by damages. We are of the view that since eects on the environment are irreversible, they cannot be adequately compensated by damages. We are inclined, for this reason, to take the view that if the proposed construction is commenced and the Applicants’ appeal succeeds, it will be rendered nugatory. 21. Consequently, we grant prayer 4 of the application dated 27th September 2024, with the result that we hereby grant a conservatory order stopping, halting and discontinuing any development and construction activities on the property known as Nairobi/ Block 17/392- Kilimani Area, Nairobi by the 9th Respondent or any other person, pending the hearing and determination of the appeal herein. The costs of the application shall abide by the outcome of the appeal. 22. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024. P. NYAMWEYA ………………………………… JUDGE OF APPEAL A. MUCHELULE ………………………………… JUDGE OF APPEAL G.V. ODUNGA ………………………………… JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1929/eng@2024-12-20 6

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I certify that this is the true copy of the original. SIGNED DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1929/eng@2024-12-20 7

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