Cedars Restaurant Ltd v Soi & 2 others (Environment and Land Case E010 of 2026) [2026] KEELC 4225 (KLR)

2. The Motion is supported by the afidavit of Samora Sikalieh of an even date. He deponed that he is the Chairperson of Karen Langata District Association, as well as a resident of Karen having lived in its locality since he was born and aware of the history of the neighborhood. 3. KLDA, he noted, is a residential association within Karen-Langata areas in Nairobi County, that it is also a stakeholder in any proposed development which requires public participation in approvals and obtaining permits from lawful authorities. 4. He explained that the substratum of this dispute is entrenched in a manifest illegality concerning the suit property, Nairobi Block No. A37/58 (L.R. No. 10126/6) located along Forest Lane, Mbagathi Zone 2, Karen Ward and that in July 2025, the Plaintifi surreptitiously initiated a process to alter the fundamental character and tranquility of the Forest Lane, Mbagathi Zone 2 precinct by seeking a change of user from low-density residential to commercial (Restaurant). 5. It was deposed that the process was fiawed necessitating the challenge of the change of user by filing ELC Petition No. ELC EPPET/E010 of 2026: Samora Sikalieh (suing as the Chairperson of Karen & Langata District Association [KLDA]) Versus Mohamed Isahakia & Cedars Restaurant & 3 Others and that on 14th April 2026, Hon. Lady Justice Kemei issued prohibitory orders restraining any further development on the suit property and ordered that status quo be maintained. 6. The Chairperson of Karen Langata District Association deponed that the records in their possession show that the purported change of user for L.R. No. 10126/6 and renovation and construction permits were granted personally to a third party, Mohamed Isahakia/Mohamed Abdi and not to the Plaintifi and that this process was undertaken with a high degree of administrative opacity with attendant legal and environmental consequences of such a high-impact to the Forest Lane residents. 7. According to Mr. Sikalieh, the Plaintifi’s conduct constitutes a direct assault on the principle of sustainable urban development and the right to a clean and healthy environment as envisioned under Article 42 and Article 69 of the Constitution of Kenya. Furthermore, it was deposed, this surreptitious maneuver was executed in total and contemptuous disregard of Article 10 on constitutional values and the mandatory provisions of the Physical and Land Use Planning Act (PLUPA), 2019. 8. It was his position that the alleged administrative bad faith is particularly evident from the Nairobi City County's communication dated 24th September 2025 in which the County Government expressly acknowledged the substance of the residents’ objections and directed the Plaintifi to halt the approval process and undertake comprehensive public participation involving all afiected stakeholders. 9. It was deposed that in so doing, the County Government's recognized that the concerns raised by residents were neither frivolous nor peripheral. Rather, they touched on fundamental planning considerations, including noise pollution, trafic congestion, and the preservation of the residential character of the neighborhood; that the letter therefore constituted a formal administrative acknowledgment that the Plaintifi's application had not adequately addressed these concerns and that the project could not properly proceed before meaningful stakeholder engagement was undertaken. 10. More crucially, he opined, the chronology of events reveals a glaring procedural inconsistency; that while the County's directive requiring further public participation is dated 24th September 2025, the approval relied upon by the Plaintifi bears the earlier date of 16th August 2025 and that on its face, this sequence raises serious questions as to the propriety of the approval process. 11. He pointed out that the chronology of events raised legitimate questions regarding the integrity of the approval process; that while the approval relied upon by the Plaintifi was dated 16th August 2025, the Nairobi City County subsequently issued a directive on 24th September 2025 requiring the process https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4225/eng@2026-07-09 2

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to be halted and comprehensive public participation to be undertaken and that the necessity for such a directive suggested that the concerns raised by residents had not been adequately considered or addressed before the approval was granted. 12. He therefore contended that the sequence of events pointed to a possible procedural lapse and lent support to the allegation that the approval process may not have fully complied with the requirements of due process and public participation. 13. Mr. Sikalieh contended that the Plaintifi deliberately disregarded the County Government's directive requiring further public participation and proceeded with the project despite the residents' objections treating the constitutional requirement of public participation as a mere formality. Such conduct, he urged amounts to administrative bad faith and refiected an attempt to enforce rights allegedly obtained through a fiawed approval process. 14. It was his position that, faced with increasing community opposition and unresolved questions regarding planning compliance, the Plaintifi instituted the present suit as a pre-emptive measure to obtain judicial protection before the legality of the development could be challenged. According to him, the suit was deliberately framed as a simple trespass claim arising from the removal of a signboard so as to divert attention from the broader issues surrounding the commercialization of the property. 15. Significantly, he stated, the Plaintifi obtained the interim orders of 16th March 2026 by suppressing the facts that the signboard was erected on a public road reserve vested in the National Land Commission. Further, that the property is located within a low-density residential zone (Mbagathi Zone 2) which is a central pillar of the Respondents’ smokescreen strategy, leading the court to believe the dispute was a private trespass matter. 16. He urged that grave constitutional issues are at play which can only be resolved in ELC Petition NO. ELC EPPET/E010 OF 2026: Samora Sikalieh (Suing As The Chairperson Of Karen & Langata District Association [KLDA]) Versus Mohamed Isahakia & 4 Others and unless the orders issued in this case are clarified and limited to trespass, the Defendants will continue to hide behind a narrow possessory order to commit broad-daylight violations of planning and environmental laws. 17. He stated that upon the issuance of the prohibitory orders by Hon. Lady Justice Kemei on 15th April 2026, the Petitioner moved with utmost dispatch to efiect service of the said Order upon the Plaintifi and its directors and that on 17th April 2026, formal service was acknowledged by the Plaintifi, efiectively placing them on notice of the penal consequences of any disobedience as stipulated in the endorsed Penal Notice. 18. It was deposed that on 21st April, 2026, their advocates on record issued a formal request to the Oficer Commanding Station (OCS), Karen Police Station, seeking the strict enforcement of the court’s directive and that this letter specifically invoked Order No. 3 of the aforesaid orders which mandated the National Police Service to provide the necessary security and assistance to halt all unauthorized site works and commercial preparations on the suit property. 19. It is the 2nd and 3rd Defendants’ case that despite their exhaustive efiorts to secure compliance through legal, administrative, and law enforcement channels, the Plaintifi has willfully chosen the path of lawlessness, choosing to treat these multi-agency interventions as mere suggestions while continuing with intensive construction works everyday including over the weekends of 25th and 26th April 2026, the public holiday of 1st May 2026, the weekend of 2nd & 3rd May 2026 and the weekend of 9th & 10th May 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4225/eng@2026-07-09 3

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20. He urged that the court ought to intervene and clarify that its possessory orders were not intended to serve as a license to breach court orders, bypassing the mandatory provisions of the Physical and Land Use Planning Act, 2019 and the Constitution, particularly in relation to planning approvals, public participation and the regulation of development activities. 21. The 2nd and 3rd Defendants/Applicants filed a supplementary afidavit dated 23rd May 2026 sworn by Samora Sikalieh, the Chairperson of the Karen Langata District Association (KLDA). He deponed that the afidavit is necessitated by a grave, calculated and brazen escalation of illegal activities by the 1st and 2nd Respondents in deliberate defiance of the prohibitory orders issued by Lady Justice Kemei on 14th April 2026. 22. He explained that the said orders expressly restrained the Respondents, whether by themselves, their directors, servants or agents, from carrying out construction, renovation or site preparation works on the suit property and further prohibited the commencement or operation of a restaurant, bar or any other commercial enterprise on Land Reference Number 10126/6 pending the hearing and determination of the Petition. 23. According to Mr. Sikalieh, notwithstanding those orders, the residents' apprehensions regarding the commercialization of the neighborhood has fully crystallized. He deponed that the Respondents have oficially opened "The Cedars Restaurant" to the public and commenced full-scale commercial operations in complete disregard of the court's directives. 24. Mr. Sikalieh further deponed that the operation of the industrial kitchen has introduced a serious environmental and private nuisance to the neighborhood. He asserted that residents were being subjected to smoke emissions, soot and pungent commercial odors which has permeated adjoining homes and interfered with their enjoyment of a clean, healthy and serene residential environment. 25. It was his position that the Plaintifi is acting with complete impunity and in deliberate disregard of the authority of the court. He contended that its conduct forms part of a calculated strategy to create an irreversible state of afiairs and thereafter invite the court to acquiesce to a fully operational commercial enterprise on the basis of practical realities on the ground. 26. Accordingly, he urged that unless the court intervenes to enforce its orders and protect the integrity of its processes, the rule of law, the authority of the court and their pursuit of justice will be severely undermined. 27. The court notes that this matter was last before it on the 25th May, 2026 whereupon the Plaintifi was granted 10 days to file a response, with corresponding leave granted to the 2nd and 3rd Defendants to file a further afidavit together with submissions. As at the 16th June, 2026, the only pleadings in respect to this Motion are the motion and supplementary afidavit referenced hereinabove. Analysis and Determination 28. Having considered the pleadings herein, the sole issue that arises for determination is whether the interim orders issued by this Court on 16th March 2026 entitled the Plaintifi to continue with construction and commercial development after the prohibitory orders issued by Lady Justice Kemei on 14th April 2026? 29. Vide the present application, the 2nd and 3rd Defendants/Applicants have asked this court to declare that the interim orders it issued on 16th March 2026 should not be construed or interpreted as a positive license authorizing the Plaintifi to proceed with construction and renovations geared towards commercial operations in defiance of the prohibitory orders subsequently issued by Lady Justice Kemei https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4225/eng@2026-07-09 4

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on 14th April 2026 in ELC EPPET/E010 of 2026: Samora Sikalieh (suing as the Chairperson of Karen & Langata District Association [KLDA]) Versus Mohamed Isahakia & 4 Others. 30. Their complaint is that the Plaintifi has relied on this court's orders as justification for continuing works on the suit property notwithstanding the express restraints issued in the constitutional petition. 31. By way of brief background, the Plaintifi instituted this suit contemporaneously with a Notice of Motion seeking interim injunctive relief against the Defendants. The gravamen of the application was that the Defendants had trespassed onto the suit property, demolished the Plaintifi's signboard, threatened its employees and agents, interfered with ongoing renovations and improvements, and were otherwise disrupting the Plaintifi's quiet possession and enjoyment of Plot No. A37/58 (Original Number L.R. No. 10126/6). 32. The Plaintifi therefore sought temporary injunctive orders restraining the Defendants from entering upon the property, harassing occupants, interfering with improvements and renovations, destroying fixtures, or otherwise interfering with its occupation of the land pending the hearing of the application and the suit. 33. The matter came before this court ex parte on 16th March 2026. Upon considering the application, the court certified it as urgent, directed that it be heard inter partes on 24th March 2026 and granted prayer 2 of the motion pending hearing of that application. The prayer that this court granted reads as follows: “ That there be and is hereby issued a temporary injunction restraining the 1st, 2nd and 3rd Defendants by themselves, their agents or servants from entering into, harassing occupants, interfering with improvements/renovations, destroying fixtures or in any other way interfering with the Plaintifi’s quiet possession and enjoyment of the parcel of land known as Plot No. A37/58 (Original Number L.R No 10126/6) pending hearing and determination of this Application.” 34. A plain reading of the order leaves little room for ambiguity. The court restrained the Defendants from interfering with the Plaintifi's quiet possession and enjoyment of the suit property, including by entering upon the property, harassing occupants, interfering with improvements and renovations, or destroying fixtures. The focus of the order was therefore the conduct of the Defendants and the protection of the Plaintifi's possession and activities on the suit property pending the inter partes hearing of the application. 35. Significantly, the order imposed no corresponding restriction upon the Plaintifi. It neither required the Plaintifi to halt its activities on the property, nor did it direct that the existing state of afiairs be maintained. Its efiect was simply to prevent interference with the Plaintifi's occupation and use of the premises while the application awaited determination. For emphasis, this court neither directed that the activities on the suit property cease, nor did it prohibit further renovations, improvements or works. 36. However, it will be appear that on 14th April 2026, Lady Justice Kemei, in separate proceedings, to wit ELC EPPET/E010 OF 2026: Samora Sikalieh (suing as the Chairperson of Karen & Langata District Association [KLDA]) Versus Mohamed Isahakia & 4 Others issued orders restraining the Plaintifi herein from carrying out construction, renovation, site preparation works, erection of signage and advertisement boards, and the commencement or operation of a restaurant or any other commercial enterprise on the suit property pending the hearing and determination of the Petition. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4225/eng@2026-07-09 5

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37. The court (Kemei J.) further directed that the property be maintained as a low-density residential property pending the hearing and determination of the Petition. It is undisputed that these orders were served upon the Plaintifi herein. 38. The efiect of those orders was to alter the factual position in respect to the suit property that had existed when this court issued its interim orders on 16th March 2026. Whereas this court had restrained interference with the Plaintifi's possession and activities, the orders issued by Lady Justice Kemei directly restrained the Plaintifi from undertaking any further activities on the suit property. Obviously, the two orders are contradictory. 39. I say so because while this court's orders continued to protect the Plaintifi from interference with its possession, occupation and development of the suit property, the subsequent orders restrained the Plaintifi from undertaking further construction, renovations, site preparation works, or commercial operations thereon. 40. That being so, this court cannot purport to vary its orders so as to align with the orders of Kemei J as suggested by the 2nd and 3rd Defendants. The ideal situation was for the Defendants herein to file an application to either set aside or vary the orders of this court, which they have not done to date. Instead, having been served with the orders of this court with directions that they respond, the Defendants filed a distinct suit and obtained orders of injunction from Kemei J. 41. Having not filed an application to set aside or vary the orders of this court, and the orders of this court dated 16th March, 2026, having been first in time, the same shall prevail until the court directs otherwise. Consequently, the court declines to make any comment in respect of the orders of Kemei J, which were issued subsequent to the orders of this court, as requested by the Defendants/Applicants. 42. In the premises, the application dated 14th May, 2026 is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 9TH DAY OF JULY, 2026. O. A. ANGOTE JUDGE In the presence of: Dr. Ekuru Aukot and Ms Bosire for the Plaintifi Mr. Nadio for the 2nd and 3rd Defendants Court Assistant: Tracy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4225/eng@2026-07-09 6

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