Karanja v Ng'ong'a & 2 others (Environment and Land Petition E009 of 2026) [2026] KEELC 5288 (KLR)

L.R No. 13486/177 and 13486/178 located at Utawala, within Nairobi City County, which is deleterious to the environment and/or out of character with the residential use of the area pending the hearing and determination of the main petition. b. This Honourable Court be pleased to an order compelling the 2nd and 3rd Respondents to take immediate measures to stop, prevent or discontinue the current fast paced ongoing construction and development activities or any act or omission deleterious to the environment on all that parcel of land known as L.R No. 13486/177 and 178 located in Utawala within Nairobi City County pending the hearing and determination of the Petition. c. Costs of this Application be provided for. 2. The application is based on the grounds set out on the face of it and in the Petitioner’s Affidavit of even date. The Petitioner avers that she is the registered owner of the parcel of land known as LR 13486/181, on which she currently resides, and that the Government has zoned it for residential use. She further states that the 1st Respondent is the registered owner of the parcels of land known as LR Nos. 13486/177 and 13486/178. 3. On 10/3/2026, Justice O. A. Angote certified the application as urgent and directed that it be heard by this court on 23/3/2026. In the meantime, the Learned Judge issued interim orders as follows. ‘That until 23/3/2026, conservatory orders be and are hereby issued restraining the 1st Respondent from continuing with or undertaking any development, works and/or construction or commencing any kind of livestock/poultry farming on all that parcel of land known as LR No. 13486/177 and 13486/178 located at Utawala, within Nairobi City County, which is deleterious to the environment and/or out of character with the residential use of the area.’ 4. The interim orders were extended on 23/3/2026. PET.E009.2026-NBI 2R of 17

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5. In his Reply Affidavit, sworn on 21/3/2025, the 1st Respondent denies the Petitioner’s allegations about the property’s zoning status and use. He contends that references to zoning or lease conditions do not establish that the property falls outside a mixed-use development area. He annexes the 2021 Nairobi City County Development Control Policy, which designates the Mihang’o area as a mixed-use zone. 6. The 1st Respondent further denies that any large-scale poultry house or poultry-farming operation is under construction. He states that the only recent works comprise a lightweight shade/roof over part of L.R. No. 13486/178, with no poultry equipment installed or intended for installation. The 1st Respondent asserts that the principal lawful activity on L.R. No. 13486/177 is an engineering workshop for clean-cooking stoves, operated by Mvuke Solutions Ltd and Faith Energy Saving Engineering Works Ltd. He maintains that the relevant permits and NEMA environmental approvals have been obtained, including NEMA Licence No. NEMA/ENVIS/CPR/LIC-1697. 7. The 1st Respondent denies the allegations of encroachment, structural damage, excessive noise and pollution. He asserts that the shade/roof structure lies entirely within his property and terminates at the shared perimeter wall, and that the shade does not encroach upon or damage the Petitioner’s property. He further contends that the Petitioner’s photographs are outdated and do not reflect the current state of the premises, including the guttering, protective netting and high wall installed to mitigate particle dispersion and workshop noise. The 1st Respondent asserts that the Petitioner has adduced no cogent or credible evidence of excessive noise, pollution beyond permissible thresholds, waste accumulation or structural damage. 8. Finally, the 1st Respondent contends that the application is based on exaggerations, misrepresentations and material non-disclosure, including PET.E009.2026-NBI 3R of 17

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the non-existence of lawful approvals for its operations. He argues that the conservatory orders sought cannot be effectively enforced because the alleged construction is said to be ongoing. He asserts that, as a registered proprietor, he is entitled to undertake lawful economic activities subject to reasonable environmental safeguards. He further argues that the application is mischievous, misleading and an abuse of process, and therefore ought to be dismissed with costs. 9. In her Further Affidavit dated 29/6/2026, the Petitioner alleges that the leases in respect of the subject properties are strictly for residential purposes, and that any deviation requires a formal change of use and the requisite approvals. She further alleges that the 1st Respondent has not obtained or demonstrated such approvals. She contends that no public participation was conducted prior to the development and that the Respondent’s business permit does not cure this defect. The deponent, as an immediate neighbour and directly affected party, asserts that no notice or consultation was ever extended to her. Consequently, she prays that the Court grant the interim orders sought to prevent irreparable harm pending the determination of the petition. The application dated 2/4/2026 10. The application is expressed to be brought under the provisions of Section 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 3(1) of the Civil Procedure Rules. The Petitioner prays for orders that; a. Spent; b. The 1st Respondent/Contemnor herein be cited for contempt of the orders issued by this Honourable Court on the 23/3/26 in respect to Land Parcel L.R. No. 13486/177 and 13486/178 located in Utawala, within Nairobi City County which orders are still in force. c. This Honourable Court be pleased to commit the 1st Respondent/Contemnor to jail for a period of not less than six (6) months for willful disobedience of the Court Orders issued on the PET.E009.2026-NBI 4R of 17

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23rd day of March, 2026, or for such further period as the Court may order, until the 1st Respondent/Contemnor purges the said contempt. d. This Honourable Court be pleased to order that the 1st Respondent/Contemnor be fined such amount as this Honourable Court may deem fit in punishment for contempt of its Court orders as issued on the 23rd day of March, 2026. e. This Honourable Court be pleased to summon the Officer Commanding, Station Mihang’o Police Station, to appear before this Honourable Court to show cause why he/she failed to comply with the orders of this Honourable Court issued on the 23rd day of March, 2026. f. The costs of this application be borne by the Defendant/Contemnor. 11. The application is based on the grounds set out on the face of it and further supported by her affidavit of even date. The Petitioner states that the orders issued on 10/3/2026 were duly served upon the 1st Respondent on the same day, as evidenced by the Affidavit of Service filed on 16/3/2026. The Petitioner further states that, upon the appointment of his counsel on record, the 1st Respondent’s counsel was present in court when the order of 23/3/2026 was made, thereby establishing clear knowledge of the order. 12. The Petitioner avers that, despite full knowledge of the subsisting court order, the 1st Respondent has willfully, deliberately, and blatantly disregarded it by continuing the prohibited activities on the suit properties, including metal welding operations within a residential area, as documented in the report of the Officer Commanding Station at Mihang'o Police Station. 13. The Petitioner contends that the threshold for contempt has been met by proving knowledge of the order and deliberate non-compliance. She urges the court to uphold its authority by ensuring its orders are obeyed. She asserts that this court is empowered to address such contempt by ordering the arrest and imprisonment of the contemnor. PET.E009.2026-NBI 5R of 17

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14. In his Reply Affidavit, sworn on 20/5/2026, the 1st Respondent contends that the applicant’s case rests on a mischaracterisation of facts and an impermissible expansion of the court orders beyond their plain wording. He denies having commenced any new poultry farming enterprise or poultry house after the orders were issued. He further asserts that the complained-of poultry-related activities predated both the proceedings and the impugned orders. 15. The deponent further states that the court issued no restraint on “metal welding operations,” which are now cited in the contempt proceedings. He states that ‘metal welding operations’ are independent, duly licensed, and unrelated to poultry or livestock farming. He admits that shade construction works existed at the time of filing but clarifies that they did not constitute a poultry house. Upon learning of the orders, he halted any works that could be construed as such. 16. He further asserts that a visit by police officers from Mihang’o to the premises to enforce the orders revealed no ongoing construction or poultry farming in breach of the court’s directive. He argues that the applicant has failed to present cogent evidence of willful disobedience of the orders. He emphasises that, as contempt is quasi-criminal, it cannot be founded on implication or an expanded interpretation. He affirms that he has acted in good faith throughout and argues that the application is an abuse of process and ought to be dismissed with costs. 17. In her Further Affidavit dated 4/6/2026, the Petitioner maintains that the orders issued on 10/3/2026 were extended on 23/3/2026 and 2/4/2026, in the presence of the 1st Respondent’s advocates on record. She asserts that, in total disregard of those orders, the 1st Respondent proceeded with development and construction, welding works, and poultry farming. This conduct is evidenced by the police remarks and the court’s site visit report. She accuses the 1st Respondent of ignoring the order and adopting his own interpretation of it. She asserts that the consequences of such disobedience must follow. PET.E009.2026-NBI 6R of 17

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18. The applications were canvassed through written submissions. The Petitioner/Applicant’s submissions are dated 29/6/2026, whereas the 1st Respondent’s submissions are dated 25/7/2026. The court has had occasion to read the submissions, which now form part of the record. Analysis and Determination 19. Having considered submissions the presently applications, before the the rival affidavits and the court, the issues arising for threshold for determination are; a. Whether the Petitioner has met the injunction/conservatory orders prayed to issue. b. Whether the Petitioner’s application for contempt of court is merited. c. Who should bear the costs of the applications? Whether the Petitioner has met the threshold for injunction/conservatory orders prayed to issue 20. The primary constitutional basis for granting conservatory orders is Article 23(3)(c), which expressly authorises such orders in proceedings brought under Article 22. Article 22 is deliberately broad: it covers threatened violations and confers standing on persons acting in the interests of groups, classes, associations, and the public interest. 21. A conservatory order was defined in Invesco Assurance Co. Ltd vs. MW (Minor suing thro’ next friend and mother (HW)) [2016] eKLR Nairobi Civil Appeal 151 of 2011 as; “a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.” 22. The principles that inform the grant of conservatory orders, as elucidated above, have been expounded in several cases, including Board of Management of Uhuru Secondary School v City County Director of PET.E009.2026-NBI 7R of 17

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Education & 2 Others and Wilson Kaberia Nkunja vs. The Magistrate and Judges Vetting Board and Others, Nairobi High Court Constitutional Petition No. 154 of 2016 (2016) eKLR, among others. They are now well settled and are as follows: a. An applicant must demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution. b. Whether, if a conservatory order is not granted, the Petition alleging violation of, or threat of violation of rights will be rendered nugatory; and c. The public interest must be considered before grant of a conservatory order. 23. In the case of Platinum Distillers Limited v Kenya Revenue Authority [2019] eKLR amplified the parameters for conservatory orders as follows: “The guiding principles upon which Kenyan courts make findings on interlocutory applications for conservatory orders within the framework of Article 23 of the Constitution are settled. The law, as I understand it, is that in considering an application for conservatory orders, the court is not called upon and is indeed not required to make any definitive finding either of fact or law as that is the province of the court that will ultimately hear the petition. The jurisdiction of the court at this point is limited to examining and evaluating the material placed before it, to determine whether the applicant has made out a prima facie case to warrant grant of conservatory orders. The court is also required to evaluate the PET.E009.2026-NBI 8R of 17

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pleadings and determine whether denial of conservatory orders will prejudice the applicant.” 24. In the present case, and without venturing into the merits of the Petition, it is evident that the locality in question is zoned as a residential area. From the material placed before this court, it is evident that the 1st Respondent is engaged in poultry rearing on his properties. The 1st Respondent has categorically stated in Paragraph 7 of his Replying Affidavit dated 20/5/2026 that the poultry-related activities were in existence prior to the institution of the proceedings. 25. The Deputy Registrar’s Site Visit Report confirms that there is indeed a poultry house, and the attached photographs corroborate this. The Report further indicates that a large roofed shade has been constructed using metal bars and iron sheets. The Report also notes that welding of steam generators and boilers was in progress at the time of the visit. The 1st Respondent also attached photographs to his Replying affidavit, which corroborate the Deputy Registrar’s observations. Clearly, these are not activities for a residential area. 26. As stated by the Petitioner/Applicant, the 1st Respondent has not adduced evidence of a change of user confirming that the project was duly approved on the face of the record. Although the 1st Respondent adduced business permits from the 2nd Respondent and a licence from the 3rd Respondent, these were not issued in his name. As acknowledged in his own Replying Affidavit, they were issued to Mvuke Solutions Ltd and Faith Energy Saving Engineering Works Ltd for the operation of an engineering workshop. The 1st Respondent, being the proprietor of the subject parcels, has not shown the relationship between him and the two entities. These entities, in any case, are not using the premises for residential purposes. Whether there was a change of user is an issue to be determined at trial. 27. Under the standard set out in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003) eKLR, there is a clear right alleged to have been PET.E009.2026-NBI 9R of 17

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infringed, which requires the Respondents to provide a rebuttal or explanation. I am therefore satisfied that the Petitioner/Applicant has established a prima facie case. She has a genuine and arguable case. 28. The second limb in considering whether the Petitioners have established a prima facie case with likelihood of success is whether there is a real danger that the Petitioners will suffer prejudice as a result of the violation or threatened violation of the Constitution. The Supreme Court of Kenya, in the case of Gatirau Peter Munya versus Dickson Mwenda Kithinji & 2 Others (2014) eKLR, rendered itself on conservatory orders as follows: “Conservatory orders bear a more decided public law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as ‘the prospects of irreparable harm’ occurring during the pendency of a case; or ‘high probability of success’ in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant causes” 29. Further, in Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR, the court captured the essence of conservatory orders as follows: “Conservatory orders, in my view, are not ordinary civil law remedies but are remedies provided for under the Constitution, the Supreme law of the land. They are not remedies between one individual as against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as PET.E009.2026-NBI 10R of 17

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opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders, which may only attach to a particular person.” 30. The Petitioner argues that the 1st Respondent’s development and construction works have encroached on her property, interfering with the boundary wall and creating a risk of damage to it. In her submissions, she avers that the construction works have caused noise pollution and altered the flow of surface water by directing rainwater onto her property. As a result, she is unable to enjoy her right to a clean and healthy environment as guaranteed under Article 42 of the Constitution. 31. In rebuttal, the 1st Respondent denies any encroachment on the Petitioner’s property, structural damage to the boundary wall, or excessive noise. He alleges that the shade/roof structure lies entirely within his property and terminates at the shared perimeter wall. He further contends that the Petitioner’s photographs are outdated and do not reflect the current state of the premises, including the guttering, protective netting and high wall installed to mitigate particle dispersion and workshop noise. He asserts that the Petitioner has adduced no cogent or credible evidence of excessive noise, pollution beyond permissible thresholds, waste accumulation or structural damage. 32. In my view, the Petitioners have shown the requisite prejudice. It is evident that the shade lies at the boundary wall. The 1st Respondent did not rebut the assertion that noise emanates from the engineering workshops. On the face of it, the 1st Respondent’s construction activities have resulted in constitutional prejudice, including breaches of the requirements for public participation, fair administrative action, and the right to a clean and healthy environment. Such infringement cannot be quantified by way of damages. 33. As to whether the Petition will be rendered nugatory if the conservatory orders are not issued, it is evident that if the 1st Respondent is allowed PET.E009.2026-NBI 11R of 17

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to proceed with the construction activities, there is a risk that the Petition would be rendered nugatory. The infringement and/or harm sought to be averted will have occurred, thus likely rendering the proceedings an academic exercise. 34. Finally, conservatory orders are granted in light of the public interest, constitutional values and proportionality. In the present case, it is in the public interest that conservatory orders be granted. 35. It is therefore my finding that the prayer for conservatory orders is merited. 36. I note that the Petitioner also sought an order compelling the 2nd and 3rd Respondents to take immediate measures to stop, prevent or discontinue the ongoing construction and development activities, or any act or omission deleterious to the environment, on the 1st Respondent’s subject properties, pending determination of the Petition. Having granted the conservatory orders, this order will be of no use, as the construction has already been halted. Whether the Petitioner’s application for contempt of court is merited; 37. The Black’s Law Dictionary 10th Edition at Page 385 defines contempt of Court as; “Contempt (also termed as contempt of Court, judicial contempt) is a disregard of, disobedience to, the rules, or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body." 38. Additionally, Section 29 of the Environment and Land Court Act under the title offences provides as follows; “Any person who refuses, fails or neglects to obey an order or direction of the Court given under this Act, commits an offence, and shall, on conviction, be liable to a fine not exceeding twenty million PET.E009.2026-NBI 12R of 17

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shillings or to imprisonment for a term not exceeding two years, or to both.” 39. Contempt is therefore necessary for the maintenance of law and order in a civilised society and to uphold the dignity of the Courts. It is trite law that every person against whom a Court Order is made has an unqualified obligation to obey the Order, however unpalatable it may be, until the Order is discharged or set aside. 40. This was the dicta pronounced by the Court in the case of Hadkinson –vsHadkinson, (1952) ALL ER 567 as follows; “It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a Court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.” 41. Similarly, Lord Cottenham, L.C., had this to say in the case of Chuck –vsCremer (1) (1Coop. temp. Cott 342): “A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it… It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid- whether it was regular or irregular. That they should come to the Court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the Court that it might be discharged. As long as it exists it must not be disobeyed.” 42. The constitutional imperative of contempt was captured in the case of Kenya Human Rights Commission V Attorney General and Another (2018) eKLR, the Court observed as follows: PET.E009.2026-NBI 13R of 17

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“Article 159 of the Constitution recognizes judicial authority of the Court s and tribunals established under the Constitution. Court s and Tribunals exercise this authority on behalf of the people and for that reason they must not only be respected and obeyed but must also be complied with in order to enhance public confidence in the Judiciary which is vital for our Constitutional democracy. The Judiciary acts in accordance with the laws (Article 160) and exercises its authority through its judgments, decrees and orders or directions to check government power, keep it within the Constitutional stretch, hold the Legislature and Executive to account and thereby secure the rule of law, administration of justice and protection of Human rights. For that reason, the authority of the Court s and dignity of their processes are maintained when Court orders are obeyed and respected thus Court’s become effective in the discharge of their Constitutional mandate…” 43. It is therefore a fundamental rule of law that Court orders be obeyed, and where an individual is enjoined by a Court order to do or refrain from a particular act, he has a duty to comply with that order. The Court has a duty to commit that individual for contempt of its orders where he deliberately fails to comply with such orders. 44. The standard of proof in such proceedings was articulated by the Court of Appeal in the case of Mutitika v Baharini Farm Limited [1985] KLR 227 as follows: “… In our view the standard of proof in contempt proceedings must be higher than proof on a balance of probabilities, almost but not exactly, beyond reasonable doubt. We envisage no difficulty in Court’s determining the suggested standard of proof. The standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to offences which can be said to be quasi-criminal in nature…” PET.E009.2026-NBI 14R of 17

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45. For an application for contempt to succeed the Applicant is duly bound to prove the following 4 elements: a. the terms of the Order (or injunction or undertaking) were clear and unambiguous and were binding on the Defendant; b. the Defendant had knowledge of or proper notice of the terms of the Order; c. the Defendant has acted in breach of the terms of the Order; and d. the Defendant’s conduct was deliberate. 46. It is not in dispute that the orders issued on 10/3/2026 and extended on 23/3/2026 were clear and unambiguous as to their terms and the obligations imposed on the 1st Respondent. It is also not in dispute that the orders were extended in the presence of the 1st Respondent’s Counsel. In addition, the record shows that the Applicant served the orders on the Respondent and its legal Counsel, as evidenced by the affidavit of service marked as GWK-2. In any case, the 1st Respondent has not alleged any ambiguity or lack of knowledge of the orders. 47. The issue remains whether the 1st Respondent has acted in breach and deliberately disobeyed the terms of the orders. The Petitioner/Applicant contends that he has, while the 1st Respondent denies disobedience of the orders. The 1st Respondent asserts that the court issued no restraint on “metal welding operations,” which are now cited in the contempt proceedings. He further asserts that these ‘metal welding operations’ are independent, duly licensed, and unrelated to poultry or livestock farming. He admits that shade construction works existed at the time of filing the Petition but clarifies that they did not constitute a poultry house. Upon learning of the orders, he halted any works that could be construed as such. 48. The orders restrained the 1st Respondent from continuing with or undertaking any development, works and/or construction, or from commencing any kind of livestock or poultry farming on the subject properties that is deleterious to the environment and/or out of character PET.E009.2026-NBI 15R of 17

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with the residential use of the area. The orders halted any activities and work that would be construed as harmful or detrimental to the environment and that which is not for residential purposes. As noted earlier, the Site Visit Report indicates that welding on steam generators and boilers was ongoing at the time of the visit. The impugned welding amounts to ‘works’ and is definitely not for residential purposes, which the court had halted pending determination of the application. 49. Further, although the 1st Respondent alleges that he halted any works that could be construed as such, the Site Visit was conducted on 12/5/2026. The 1st Respondent was first served with the orders on 10/3/2026. The orders were extended on 23/2/2026 and 2/4/2026. Evidently, at the time of the Site Visit, the 1st Respondent had not halted the works as alleged. 50. In Michael Sistu Mwaura Kamau v Director of Prosecutions & 4 Others (2018) eKLR, it was held that for a person to be cited for contempt, it must be evident that the Court order was deliberately disobeyed. This Court is satisfied that the 1st Respondent is in breach of the terms of the orders issued on 10/3/2026 and therefore has committed contempt of Court. Disposal orders 51. The upshot of the foregoing is that the Petitioner’s applications dated 5/3/2026 and 2/4/2026 are merited and I make the following orders; a. Conservatory orders are hereby issued restraining the 1st Respondent from continuing with or undertaking any development, works and /or construction or commencing any kind of livestock/poultry farming on all that parcel of land known as L.R No. 13486/177 and 13486/178 located at Utawala, within Nairobi City County, which is deleterious to the environment and/or out of character with the residential use of the area pending the hearing and determination of the Petition herein. PET.E009.2026-NBI 16R of 17

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b. The 1st Respondent herein is hereby found to be in contempt of the Court orders issued on 10/3/2026. c. The 1st Respondent is hereby ordered to purge the contempt within the next 60 (Sixty) days and comply with these Court orders. d. In default of compliance with (c) above, a notice to show cause is hereby issued against him to appear in person before this Court on 28/10/2026 at 9 am to show cause why he should not be committed to civil jail for disobedience of the Court orders issued on 10/3/2026. e. Costs of the applications shall be in favour of the Petitioner/Applicant. 52. It is so ordered DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF AUGUST 2026 THROUGH MICROSOFT TEAMS. J G KEMEI JUDGE Delivered in the presence of; 1. Mr Gatoto for the Petitioner 2. Ms Wambugu for the 1st Respondent 3. Mr Masaku for the 2nd Respondent 4. N/A for the 3rd Respondent 5. C/A – Mr Amos PET.E009.2026-NBI 17R of 17

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