The Northern Block Residents Limited v Canaan Residences LLP; National Environment Management Authority & Nairobi City County Government (Interested Parties)

SECTIONS 57, 58, 71, 72, AND 73 OF THE PHYSICAL AND LAND USE PLANNING ACT, NO. 13 OF 2019 BETWEEN THE NORTHERN BLOCK RESIDENTS LIMITED ………………... PETITIONER VERSUS CANAAN RESIDENCES LLP .…………………………. ………….RESPONDENT AND NATIONAL ENVIRONMENT MANAGEMENT INTERESTED PARTY AUTHORITY…………………………1ST NAIROBI GOVERNMENT CITY COUNTY .............. 2ND INTERESTED PARTY JUDGEMENT 1. By a Petition dated 31st October 2024, the Petitioner, Northern Block Residents Limited, seeks the following reliefs: i. A declaration that the Respondent's proposed development project violates the Petitioners' constitutional right to a clean and healthy environment under Articles 42, 69, and 70 of the Constitution of Kenya, 2010. ii. A declaration that the Interested Parties have violated the principles of sustainable ELCL PET. E090 OF 2024 2

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development by approving the project without ensuring compliance with applicable environmental and zoning laws. iii. An order quashing the EIA approval issued by the 1st Interested Party for the project. iv. An order directing the 1st and 2nd Interested Parties to enforce zoning regulations and ensure the proposed development complies with all statutory requirements. v. An order of mandamus compelling the Respondent to halt any further development on the site pending a full environmental and social impact assessment and a comprehensive public consultation process. vi. An injunction restraining the Respondent from continuing with any construction activities on the said suit property until all concerns raised by the Petitioner are addressed. vii. An order of general damages be issued against the Respondent for violating the Petitioner's constitutional right to fair administrative action as guaranteed under Article 47 of the Constitution of Kenya, 2010. viii. Costs of this Petition. ELCL PET. E090 OF 2024 3

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ix. Any other relief that this Honourable Court may deem fit to grant in the interests of justice. 2. The Petition is based on the grounds set out in the Petition, together with the Supporting Affidavit of Sameer R.J. Patel, a member of the Petitioner, sworn on even date. THE PETITIONER’S CASE 3. The deponent averred that the Petitioner’s members are residents of Spring Valley and Peponi Road, whose properties are adjacent to or near L.R. No. 1870/VIII/37 (the suit property herein), upon which the Respondent commenced construction of a multi-dwelling residential development sometime in April 2024. 4. He further averred that the Petitioner’s members first became aware of the development when they observed excavation works and increased vehicular activity on the Suit Property, at which time no notice board had been erected as required under Regulation 11(3) of the Physical and Land Use Planning (Building) Regulations, 2021. Upon further inquiry, the Petitioner learnt that the Respondent had obtained a change of user for the suit property on the basis of an Environmental Impact Assessment (EIA) licence, and was already marketing the development for off-plan sale. 5. The deponent contends that the proposed development contravenes the Nairobi City County Development Control Policy and Zoning Guide, which classifies the Kitusuru area as Zone 13B and permits only low-density residential use, ELCL PET. E090 OF 2024 4

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such as maisonettes and single-family dwellings. He asserts that the proposed development has a plot ratio of between 588% and 715%, compared with the permissible ratio of 50%, and a plinth area of 29,546 square metres, thereby exceeding the applicable zoning limits many times over. He further contends that the development is situated less than three metres from a river, thereby violating the mandatory thirty-metre riparian reserve and Section 42 of the Environmental Management and Co-ordination Act (EMCA). He explains that all trees on the Suit Property have been cleared, contrary to Articles 42 and 69 of the Constitution. 6. The deponent averred that the Respondent failed to comply with the public participation requirements set out in Regulations 17, 21 and 22 of the Environmental (Impact Assessment and Audit) Regulations, 2003. He further asserted that no public meetings were held, thereby excluding residents from contributing to the decision-making process. 7. He averred that the Respondent failed to publicise the application for development permission as required under Sections 58(7) and (8) of the Physical and Land Use Planning Act and under Regulation 15(2) of the Physical and Land Use Planning (Development Permission and Control) (General Regulations), 2021. Consequently, he argued that the approvals came to the Petitioner’s attention after the statutory fourteen-day objection window had lapsed and after the sixty-day window for lodging an appeal with the ELCL PET. E090 OF 2024 5

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National Environment Tribunal, established under the Environmental Management Coordination Act, had closed. 8. He explained that after the Petitioner lodged complaints with the Interested Parties, the 2 nd Interested Party, by letter dated 18th September 2024, directed the Respondent to convene consultative meetings with residents within fourteen days, failing which construction would be halted. He averred that, despite the expiry of that period, construction continued unabated and that the Interested Parties took no further action despite subsequent notification. 9. The deponent contends that the existing infrastructure, including roads, sewerage, water and waste management systems, is inadequate to support a development of the proposed scale. He asserts that the continued construction poses an imminent risk of irreversible environmental degradation to the adjacent river and riparian ecosystem, and would cause a depreciation in property values and diminish the quality of life for residents in the vicinity. He further averred that the proposed development would substantially increase demand on the local infrastructure, particularly the sewerage and traffic systems. He argued that Peponi Road, a narrow single-lane road, cannot accommodate the anticipated increase in traffic, which will lead to congestion and a hazardous environment for motorists and pedestrians alike. He also argued that the ongoing construction would substantially diminish property values in the area due to increased congestion, pollution, ELCL PET. E090 OF 2024 6

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and a general reduction in the quality of life. In conclusion, the deponent urged the Court to allow the Petition as prayed. THE RESPONDENT’S CASE 10. The Respondent opposed the Petition through the Replying Affidavit sworn on 29th September 2025 by its Chief Operations Officer, Yohannes Kidane. The deponent contends that the dispute concerns the permits issued for the proposed development and the zoning applicable to the suit property on which the Respondent intends to develop a block of 201 commercial-cum-residential units and related facilities. 11. He averred that in October 2023, the registered proprietor at the time, Laxmanbhai Construction Limited, applied to the 2nd Interested Party for a change of user from a single dwelling to multi-dwelling units. He explained that the change-of-user application stated that the land was sufficient to accommodate the proposed development; that the soil could effectively support it; that the parcel was already connected to the Nairobi City Water and Sewerage Company trunk sewer line; that construction waste would be managed by a licensed private solid waste handler in conjunction with the 2nd Interested Party; and that the wider Westlands area was residential-cum-commercial in character, with flats the dominant housing typology, and hence the proposal was consistent with the prevailing trend. ELCL PET. E090 OF 2024 7

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12. The deponent averred that a public notice dated 17 th October 2023 was affixed at the main gate of the suit property, and published in the Daily Nation on 18 th October 2023, notifying the public, including the Petitioner, of the intended change of user and inviting the public for a public participation exercise. He further averred that the 2nd Interested Party approved the change of user on 2 nd November 2023. He further stated that public notices inviting the public to submit their comments on the proposed change of use were published in The Star newspaper on 10 th January 2024, and that a public participation session was held at the premises on 17th January 2024. 13. He averred that the Respondent thereafter engaged the Kenya Urban Roads Authority regarding a Traffic Impact Assessment, which issued its recommendations in a letter dated 28th November 2023. He stated that the Traffic Impact Assessment, submitted to the Kenya Urban Roads Authority, found, inter alia, that three affected junctions at Peponi/Spring Valley Road, Peponi Road/Ol Donyo Sabuk Avenue and Eldama Ravine/Peponi Road would experience increased delays by the year 2030, with or without the proposed development; that the requisite parking provision of 121 spaces would be exceeded by the proposed 131 spaces; and that the Authority confirmed its satisfaction with the assessment in a letter dated 6th May 2024. 14. He further averred that an Environmental Impact Assessment Study was conducted and a report prepared on ELCL PET. E090 OF 2024 8

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7th March 2024, which disclosed a proposed development comprising 4 basements, a ground floor, and 13 upper floors, with 201 residential units, together with commercial space, parking, and rooftop amenities, at an estimated cost of Kshs. 1,114,605,503/=. 15. The deponent averred that the Respondent sought pegging assistance from the Water Resources Authority to determine the riparian boundary and that a report dated 29 th April 2024 found no threat to the river or the riparian reserve. He stated that the Respondent was scheduled to install gabions to prevent soil erosion, a liquid and solid waste management system, a monitored sewer system, secured waste collection, and an effluent treatment plant using membrane bioreactor technology before commencing construction. On this basis, the 1st Interested Party issued Environmental Impact Assessment Licence No. NEMA/EIA/PSL/32989 on 12 th June 2024. 16. He averred that public notices inviting comments were published in The Star newspaper and The People Daily on 22nd March 2024, were gazetted vide Gazette Notice No. 3444 of 2024, and that a public participation exercise was convened on 11th April 2024. 17. He maintained that the development aligns with other similar apartments along Peponi Road. The deponent contested the Petitioner's locus standi on the grounds that it failed to disclose the identity, number, or officials of the residents it purported to represent. He argued that no ELCL PET. E090 OF 2024 9

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document was produced to demonstrate that the deponent of the Petitioner's supporting affidavit is a member of the Petitioner or is duly authorised to institute the Petition on its behalf. He further contended that the twelve individuals recorded as having objected during the public participation exercise on 11th April 2024 did not establish their residence within Spring Valley or along Peponi Road. He also argued that this number was an unreasonable basis for a claim that the residents' views had gone unconsidered. 18. He contended that comparable high-rise developments already existed in the vicinity, including a twenty-five-storey development known as Diplomat Residences along Peponi Road, thereby undermining the Petitioner's assertion that the proposed development is inconsistent with the character of the area or would place an exceptional strain on road and sewerage infrastructure. 19. The Respondent relied on the Court of Appeal’s decision in Civil Appeal E160 of 2025, Claire Kubochi Anami & 2 Others (suing as officials of Rhapta Road Residents Association) v. County Executive Committee Member, Built Environment and Urban Planning, Nairobi City County & 20 Others, to contend that remedies in zoning disputes must respect proportionality and legal certainty; that developers who obtain permissions in good faith after multi-agency review ought not to be retroactively penalised in the absence of demonstrated illegality; and that pending projects would remain subject to lawful, generally applicable ELCL PET. E090 OF 2024 10

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controls and to reasonable conditions imposed during construction and post-completion oversight. 20. Based on this decision, the deponent maintained that all permits and licences exhibited were obtained in accordance with procedure and the law following a multi-agency review. He argued that the approvals cannot be invalidated as sought by the Petitioner without proof of illegality, which the Petitioner failed to provide. 21. He further averred that the conservatory orders had stalled the project, frustrated purchase and financing agreements between prospective purchasers and their financiers, and between the Respondent and its financier, causing financial losses that were compensable only in damages, for which no security for costs had been furnished by the Petitioner. Accordingly, the deponent contends that the Petition fails to disclose any cause of action or any violation of the Constitution. In conclusion, the deponent urged the Court to dismiss the Petition with costs and to lift the conservatory orders halting the project forthwith. THE RESPONSE 22. The Petitioner filed a further affidavit sworn by Sameer J Patel on 30th October 2025 in response to the Respondent’s replying affidavit. The deponent contended that the suit property falls within Zone 13B of Kitisuru under the Nairobi City County Development Control Policy, Sessional Paper No. 1 of 2023, which prescribes single-dwelling, low-density ELCL PET. E090 OF 2024 11

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residential use, a 50% plot ratio, and 25% ground cover. He further contended that the Policy classifies the area between Redhill Road, Peponi Road, the border of Karura Forest and Lower Kabete Road, which includes the suit property, as Zone 13B. In this regard, the deponent relied on Chapter 3 of the Policy and a map from the Nairobi County website showing the property as falling within Zone 13B. He further contended that, even under the Respondent's alternative Zone 6B classification, a multi-unit high-rise development would still manifestly breach the applicable single-dwelling and plot ratio restrictions. He asserted that the Respondent's reliance on the existence of "Diplomat Residences," a twenty-five-storey structure in the vicinity, is misconceived, as zoning compliance is assessed on a parcel basis. He argued that the presence of a single non-compliant structure cannot justify the Respondent’s violation of Zone 13B standards. 23. The deponent contends that the Change of User approval relied on by the Respondent is conditional upon compliance with Sections 56 to 59 of the Physical and Land Use Planning Act, the approved zoning policy, the maintenance of the area's residential character and density, and a four-storey height limit. He further contends that the Respondent's proposed development breaches each condition, thereby rendering the approval a nullity. ELCL PET. E090 OF 2024 12

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24. He relied on an Infrastructure Impact Assessment Study for the Aura Peponi Road Project (September 2024), which states that the area is unsewered, to dispute the Respondent's assertion that the suit property is already connected to the Nairobi City Water and Sewerage Company trunk line. He contended that a private Effluent Treatment Plant cannot substitute for the absence of public trunk sewer infrastructure at the proposed scale. Regarding water supply, the deponent averred that Council water meets only 20% of the demand on Peponi Road through 2-inch pipes. He argued that the Respondent's borehole permit application breached the 800-metre minimum separation requirement prescribed under the Physical and Land Use Development Handbook, 2025. 25. The deponent contends that despite the Water Resources Authority having demarcated a 10-metre riparian reserve and the NEMA licence containing a condition prohibiting construction within 10 metres of the river, the Respondent's proposed perimeter wall lay within that reserve, thereby constituting a self-admitted breach of EMCA and the licence conditions. 26. He acknowledged Assessment finding the Respondent's Traffic Impact that future would increase delay regardless of the development, and added that this finding supports its case, given the already congested conditions on Peponi Road. He described the proposed mitigation measures as cosmetic. He disputed the Respondent's ELCL PET. E090 OF 2024 13

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characterization of the area as residential-cum-commercial, contending that over 95% of plots in the vicinity are residential and predominantly low-density. 27. The deponent contends that the Nairobi City County Government Zoning Ordinance, 2025, relied upon by the Respondent and Interested Parties, has neither been gazetted nor ratified by the County Assembly, nor has it undergone public participation under Articles 10 and 196 of the Constitution, rendering it a nullity. He further contends that the Respondent's proper avenue was the regularisation framework under Unauthorized the Nairobi Developments County Act, Authorisation 2025, which of the Respondent failed to invoke. 28. The deponent relied on this Court’s decision in ELC Petition No. E012 of 2025, delivered on 14th October 2025, where the Court found that the 2 nd Interested Party had failed to appoint and constitute the County Physical and Land Use Planning Consultative Forum as mandated by Section 14 of PLUPA, 2019. According to the deponent, this finding rendered all approvals issued during the period of noncompliance, including those relied upon by the Respondent, ultra vires and void and vitiated the Respondent’s defence. He maintained that the Respondent’s proposed development is an unacceptable public nuisance that fundamentally alters the neighbourhood's character from a low-density residential area into a heavily congested high-density zone. He argued ELCL PET. E090 OF 2024 14

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that the financial risk and loss claimed by the Respondent were self-inflicted. THE RESPONDENT’S SUPPLEMENTARY AFFIDAVIT 29. The Respondent filed a further affidavit in response to the Petitioner's Further Affidavit sworn on 30 th October 2025. The deponent averred that the Nairobi City County Development Control Policy, contained in Sessional Paper No. 1 of 2023, is obsolete and cannot properly support the Petitioner's case. 30. He reiterated the Respondent’s reliance on the Court of Appeal's decision in Civil Appeal E160 of 2025, Claire Kubochi Anami & 2 Others (suing as officials of Rhapta Road Residents Association) v County Executive Committee Member, Built Environment and Urban Planning, Nairobi City County & 20 Others, to argue that the decision permitted the continuation of construction under approvals and environmental licences already lawfully issued and acted upon, in the absence of demonstrated illegality. He further noted that the Court of Appeal held that such projects remained subject to compliance with reasonable conditions imposed during construction and to post-completion oversight, pending the outcome of instruments to be gazetted pursuant to the structural interdict orders issued in that appeal. 31. He averred that the Petitioner had not pleaded that the proposed development was out of character with the surrounding completed developments or that it offended the ELCL PET. E090 OF 2024 15

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general appearance and character of the neighbourhood. He further averred requirements, that the provisions project and complied with the procedures of the Environmental Management and Co-ordination Act and the Physical and Land Use Planning Act. 32. He further averred that the 2nd Interested Party had published the Nairobi City County Government Zoning Ordinance 2025, which reviewed the 2004 Ordinance and now regulates development within Nairobi City County. He stated that the suit property falls within the Westlands zone, which, under the 2025 review, limits development to 16 storeys, with a ground coverage of 50% and a plot ratio of 1000%, compared with 800% under the current Ordinance. 33. He conceded that although the 2025 Ordinance had not yet been gazetted, it was consistent with and a replica of the guidelines currently before the 2 nd Interested Party's County Assembly for legislative consideration. 34. The deponent provided details of upcoming developments along Peponi Road that are comparable to the Aura Peponi project. These include Donyo Hill Residences, Vipingo Log Homes, The Nest Apartments, 48 Treehouse Apartments, Hillview Hotels and Serviced Apartments, a project by Zuwena Company Limited, Minara Heights, Forestview Peponi Residential, and Mecca Tower, with buildings ranging from 6 to 25 floors. 35. He maintained that the Respondent lawfully obtained all permits, approvals and licences and that the Petitioner had ELCL PET. E090 OF 2024 16

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neither pleaded nor proved any illegality in respect thereof. He argued that although approval for the Aura Peponi project was capped at four basement levels, no corresponding cap was placed on the number of floors above the ground. He asserted that the 2nd Interested Party's Notification of Approval dated 2nd November 2023 did not prohibit the construction of thirteen floors above the ground. He maintained that the Respondent had met all conditions attached to the Change of Use Approval. THE 1ST INTERESTED PARTY’S CASE 36. The 1st Interested Party opposed the Petition through the Replying Affidavit, sworn on 4th March 2026 by David Ong'are, its Director, Environmental Compliance. 37. The deponent averred that the Respondent holds a lawful EIA licence, No. NEMA/EIA/PSL/32989, issued on 12 th June 2024, and set out the sequence of its acquisition as follows: receipt and approval of the Terms of Reference on 21 st February 2024 under Regulations 11 and 13 of the Environmental (Impact Assessment and Audit) Regulations, 2003; submission of the EIA Study Report on 12 th March 2024, classified as a High Risk Project; referral to the relevant lead agencies for comment pursuant to Regulation 20(1); transmission of a public notice to the Government Printer for Gazette publication; and, pursuant to Section 59 of EMCA and Regulation 21, the requirement that the Proponent publish notices in the print media and over radio. ELCL PET. E090 OF 2024 17

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He averred that the Proponent published notices in the Kenya Gazette and in The Star and People Daily newspapers on 22nd March 2024, aired a radio announcement on Radio Jambo, and thereafter furnished proof thereof. 38. He further averred that during the disclosure and public participation period, the Authority received comments from the National Construction Authority and the National Building Inspectorate, as well as numerous complaints and objections from residents' associations in the area, including the Petitioner, which were considered during the review and decision-making process, prompting the Authority to write to the Respondent on 13th May 2024 requiring that the concerns raised be addressed. 39. He further averred that the Respondent provided feedback addressing those concerns and forwarded a Water Resources Authority pegging report and a Traffic Impact Assessment report. He explained that a site inspection by the Authority on 9th May 2024 found the site, although out of character with its immediate surroundings, to be within an emerging mixed-development area, given comparable projects within a 100-metre radius, and that the Authority recommended approval subject to conditions. 40. He maintained that, based on minutes of public consultation meetings, completed questionnaires, the Gazette notice, and media publications, the 1st Interested Party was satisfied that the statutory requirements for public participation under EMCA and the EIA Regulations had been met. He asserted ELCL PET. E090 OF 2024 18

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that, during the public participation process, residents were invited to submit comments and objections regarding the proposed project. He stated that the 1 st Interested Party’s technical committee, comprising experts in environmental science, urban planning, and engineering, had reviewed the Study Report and confirmed compliance with all relevant environmental laws prior to the Licence being issued on 12th June 2024, subject to conditions for ongoing compliance, monitored through regular inspections and audits. He averred that the Respondent had complied with all licence conditions and implemented the recommended mitigation measures. 41. The deponent contends that the Petitioner's allegations of irregularity in the issuance of the EIA licence are unsubstantiated and lack any evidentiary basis. He further contends that, sustainable in accordance development, the with the principles constitutional right of to accessible and adequate housing under Article 43 and the Affordable Housing Act, No. 2 of 2024, halting the project would not serve the public interest. In conclusion, he urged the Court to dismiss the Petition with costs. THE 2ND INTERESTED PARTY’S CASE 42. The 2nd Interested Party opposed the Petition through the Replying Affidavit sworn by Patrick Analo Akivaga, the Chief Officer, Urban Development and Planning of the Nairobi City County Government. The deponent averred that the 2 nd ELCL PET. E090 OF 2024 19

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Interested Party had at all times remained compliant with its statutory obligations under the Constitution, the Physical and Land Use Planning Act, and other applicable law. 43. He averred that the Respondent had submitted Application No. PLUPA-BPM-003882-N seeking permission to develop 203 apartments across 13 storeys on the suit property. He explained that the application was approved on 19 th December 2023 subject to conditions including the installation of a project signboard, prior approval of an EIA report/study before commencement of works, approval and implementation of a traffic management report to the satisfaction of the County's Director of Roads, and maintenance of way leaves for sewer, water, power, drainage, and the riparian reserve. 44. He further averred that, prior to the issuance of the development permission, the 2nd Interested Party had issued a Change of User Approval on 2nd November 2023 changing the use from a single-dwelling to a multi-dwelling, subject to undertaking an EIA study, obtaining a NEMA licence before commencement of works, and maintaining the area's residential character and density. He asserted that neither approval was challenged before the County Physical and Land Use Planning Liaison Committee, as required under Section 78 of PLUPA. 45. The deponent averred that, despite these approvals, the 2 nd Interested Party subsequently received complaints from the Petitioner ELCL PET. E090 OF 2024 and the Nyari Estate Residents Association 20

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regarding inadequately addressed effluent and sewage disposal, insufficient mitigation to protect the river abutting the site, and the absence of a Traffic Impact Assessment Management Plan. Consequently, by letter dated 18 th September 2024, the 2nd Interested Party suspended the project and directed the Respondent to convene public consultation meetings on waste management and river protection and to present a Traffic Impact Assessment report, failing which the suspension would remain until the residents' material concerns were resolved. He contended that the present Petition was filed on 31 st October 2024, before the Respondent had complied with those directions. 46. He further averred that, upon reviewing the Respondent's EIA Study Report and process, the 1 st Respondent was satisfied that public participation and the proposed mitigation measures were adequate. He explained that the 1st Interested Party had closely monitored the project, and that the EIA licence issued on 12 th June 2024 was based on a proper assessment of the impacts. 47. Responding specifically to the Petitioner's grounds, the deponent averred that the plot falls within Zone 4 of the Nairobi City County Development Ordinances and Zoning Guidelines, which permit commercial/residential high-rise apartments, and that the area's zoning policy is under review to meet rising housing demand; that the riparian reserve concern was addressed on page 48 of the EIA Report; that logistical concerns regarding concrete deliveries ELCL PET. E090 OF 2024 21

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and site access were addressed on pages 44–45; that infrastructural capacity concerns were addressed on pages 36 and 40, with the Water Resources Authority's approval expressly conditioning against any risk to water supply and waste management systems; and that tree clearance was confined to the building footprint, with mitigation for the remaining areas addressed on page 43. 48. He averred that the Nairobi County Urban Planning Technical Committee had independently reviewed and approved the development after considering its effects on infrastructure, traffic, and the riparian reserve. He asserted that, in the absence of any challenge to the legality of the approvals, the project should be permitted to proceed. 49. Based on the foregoing, the deponent contended that the Petitioner had failed to demonstrate any breach of its constitutional rights. apprehension was He argued speculative that and the not Petitioner's supported by evidence. He urged the Court to dismiss the Petition in its entirety with costs and to permit the Respondent to resume construction, subject to continued compliance with the conditions imposed by the Interested Parties. THE PETITIONER’S RESPONSE TO THE INTERESTED PARTIES’ CASE 50. In a Further Affidavit, sworn on 18 th March 2026 by Manmit Jabbal, a member of the Petitioner, the deponent argued that the 1st Interested Party is not a neutral regulator in these ELCL PET. E090 OF 2024 22

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proceedings, as its decision on the Environmental Impact Assessment licence was under challenge. He averred that, in its Replying Affidavit, the 1 st Interested Party did not annex any documentary evidence of an independent technical review, such as committee minutes, site inspection records, or infrastructure capacity assessments, to demonstrate that it had independently verified the conclusions in the report. He further averred that the EIA Study Report was prepared by consultants engaged and remunerated by the developer and cannot substitute for independent regulatory verification. 51. Regarding public participation, the deponent contended that reliance on Gazette notices, newspaper publications, and radio announcements does not, without further evidence of direct engagement with affected residents, amount to meaningful public participation under Articles 10, 42 and 69 of the Constitution. 52. He argued that the expert reports annexed to the Petition show that the sewerage, water, road, and drainage infrastructure in the area was already operating beyond capacity and is incapable of sustaining the population density associated with the proposed development. He also contended that environmental management plans could not remedy these structural constraints. 53. He cited a Commission on Administrative Justice investigation report dated 6th February 2026, which identified irregular and non-transparent issuance of development ELCL PET. E090 OF 2024 23

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approvals in Nairobi City County and systemic enforcement failures, to support his concerns. Based on the foregoing, the deponent contended that the licence was issued in breach of Article 47 of the Constitution, the Fair Administrative Action Act, and the precautionary principle under Section 3 of the Environmental Management Coordination Act. 54. In response to the 2nd Interested Party's case, the deponent, while acknowledging that it is the statutory authority mandated by the Physical and Land Use Planning Act, 2019, to regulate contended development that this within mandate Nairobi imposed City County, heightened obligations under Articles 42, 69 and 232 of the Constitution to ensure that development approvals were lawful, rational, procedurally fair and informed by verifiable technical data. He further contended that a bare assertion of compliance did not discharge this obligation. 55. He averred that the 2nd Interested Party did not present any documentary evidence demonstrating that a comprehensive planning assessment was undertaken prior to approval, including infrastructure capacity assessments for sewer, water, drainage and road networks, cumulative impact analysis of high density developments in the locality, independent environmental risk evaluation, or inter-agency consultation with utility providers. He contended that in the absence of such material, the assertion of compliance remained conclusory. ELCL PET. E090 OF 2024 24

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56. He further averred that Development Permission No. PLUPABPM-003882-N is expressly conditional, requiring, among other things, NEMA approval of an Environmental Impact Assessment, submission of structural and technical details, implementation of traffic management measures, provision of adequate drainage and sewerage systems, and compliance with the applicable zonal regulations. He averred that the 1st Interested Party failed to demonstrate that any of these conditions were independently verified either before or during construction. 57. The deponent set out the Development Control Standards applicable to Zone 13B, namely a limitation to low-density single-dwelling residential use comprising maisonettes or one-family dwellings, a permissible plot ratio of 50% and a ground coverage of 25%. Respondent's proposed basements, a ground floor He contended development, that the comprising four and thirteen upper floors accommodating 201 duplex units, resulted in a plot ratio of 588%, against the permissible 50%, amounting to approximately eleven times the lawful limit. Accordingly, he contended that the Change of User Approval authorizing the development was ultra vires, as it purported to sanction a development contrary to the core numerical limits of the applicable Development Control Policy. 58. He averred that the Change of User Approval dated 2 nd November 2023 was conditional upon compliance with the applicable planning standards, environmental safeguards ELCL PET. E090 OF 2024 25

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and infrastructure adequacy. He contended that the 2nd Interested Party failed to provide any quantitative or technical assessment demonstrating that the existing infrastructure had the capacity to support the proposed intensified use. 59. The deponent contends that the absence of a prior challenge before the County Physical and Land Use Planning Liaison Committee under Section 78 of the Physical and Land Use Planning Act does not oust the Court's jurisdiction to determine whether constitutional rights were violated, the legality of the administrative action, and public interest considerations. 60. He further averred that the 2nd Interested Party's account supported its case, as the complaints concerning sewerage capacity, river protection and traffic impact were not peripheral but went to the core statutory considerations under the Physical and Land Use Planning Act. He argued that the resulting communicated by suspension letter dated of the development, 18th September 2024, demonstrated that critical planning considerations had not been adequately resolved before the approval was granted. He reiterated that the EIA Study Report relied upon by the 2nd Interested Party was commissioned and funded by the developer and therefore could not constitute an independent regulatory assessment. 61. The deponent contends that no evidence was annexed to demonstrate ELCL PET. E090 OF 2024 meaningful public participation, whether 26

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through stakeholder engagement forums, attendance registers, or minutes of consultations with directly affected residents. He asserts that meaningful public participation is a substantive constitutional requirement, not a mere procedural formality. 62. He further contended that the 2 nd Interested Party's assertion that the proposed development complied with the applicable zoning classification was made in general terms, without reference to the specific zoning instrument, policy or regulatory framework relied upon, and without disclosing the date and legal basis of such zoning, or whether any rezoning or variation of user standards had been undertaken. He averred that the Petitioner had placed before the Court the zoning regulations applicable to the suit property, which the Court of Appeal recognised as designating the area for lowdensity residential use limited to single dwelling houses. He asserted that controverted the this 2nd Interested evidence nor Party had neither produced any lawful instrument demonstrating that the applicable zoning had been amended, reviewed or lawfully departed from. 63. He contended that any variation of the applicable zoning framework had to be undertaken in accordance with the statutory procedure prescribed under the Physical and Land Use Planning Act, including deliberation through the Physical and Land Use Planning Consultative Forum. He maintained that the Consultative Forum had not been constituted, so the statutory mechanism for any lawful zoning variation did not ELCL PET. E090 OF 2024 27

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exist. He further contended that any purported reliance on a change, review, or relaxation of the zoning regulations lacked lawful basis and was therefore ultra vires the governing statutory framework. 64. He argued that the assertions that the Urban Planning Technical Committee reviewed and approved the development, was not supported by any documentary evidence of its deliberations, the technical material considered, or the basis for the approval. 65. The deponent contended that the 2nd Interested Party's reliance on post-approval inspections and subsequent site visits could not cure defects in the original approval process, because the legality was to be assessed as at the date the decision to grant development permission was made. 66. He averred that the Site Inspection Report dated 24 th April 2025, relied upon by the 2nd Interested Party, was carried out more than four months after the conservatory orders of 20 th December 2024 halted construction. He contended that the report confirmed that construction had continued and that heavy rain had caused a wall to collapse, thereby demonstrating real harm arising from the development and from non-compliance with the Court's orders. 67. The deponent contends that the recommendation to complete the reinforced concrete wall was an attempt to regularise a defective process after the event. He maintains that regulatory ELCL PET. E090 OF 2024 compliance cannot be achieved 28

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retrospectively once an unlawful or irregular approval has been granted. 68. Based on the foregoing, the deponent urged the Court to subject the approvals for the impugned development to strict scrutiny, despite the Interested Parties' assertions of lawfulness. He reiterated that his concerns were not speculative but grounded in demonstrable risk to the constitutional right to a clean and healthy environment and to life and safety. The Respondent filed an application dated 14th August 2026 seeking leave to admit the 2026 Nairobi City County and the Gazette Notice No. 9163, which came into effect pursuant to the structural interdicts issued by the Court of Appeal in Civil Appeal No. E160 of 2025. The Respondent contended that the policy governs real estate development in Nairobi and urged the Court to take judicial notice of it. The Petitioner filed a further affidavit sworn by Manmit Jabbal. The deponent contended that the Respondent cannot retrospectively invoke the 2026 Policy to cure, validate or sanitise approvals granted under an earlier planning framework that is challenged in these proceedings. He relied on a copy of the Nairobi maps to contend that the details indicate the property is located in Kitusuru, designated for low-density residential use. In a further affidavit sworn by Manmit Jabbal, the deponent averred that on 2nd September 2026, the Nairobi County Assembly Planning Committee suspended, with immediate effect, the implementation of the Nairobi City County Development ELCL PET. E090 OF 2024 29

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Control Policy, 2026, pending review and resolution of outstanding issues and discrepancies concerning the policy. In light of the foregoing, he argued that the Respondent’s reliance on the 2026 Policy is no longer sustainable, since the County Assembly Planning Committee has expressly suspended it. 69. The Petition was canvassed by way of written submissions THE PETITIONER’S SUBMISSIONS 70. The Petitioner filed its submissions dated 28 th May 2026. 71. On behalf of the Petitioner, Counsel outlined the following issues for the Court’s determination: a) Whether this Court has jurisdiction to entertain the Petition; b) Whether the impugned approvals violate Articles 42, 69 and 70 of the Constitution; c) Whether the interested Parties failed to undertake meaningful public participation; d) Whether the Interested Parties failed to conduct adequate and independent environmental and infrastructure assessment; e) Whether the approvals violate the Physical and Land Use Planning Act and the Nairobi City County zoning framework; f) Whether the approvals offend the principles of sustainable development and the precautionary principle; ELCL PET. E090 OF 2024 30

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g) Whether the approvals constitute unlawful, irrational and procedurally unfair administrative action contrary to Article 47 of the Constitution; and h) Whether the Petitioner is entitled to the reliefs sought. 72. Regarding the first issue, Counsel submitted that the jurisdictional issue was no longer live, as this Court had determined a Preliminary Objection on jurisdiction in a ruling delivered on 20th December 2024. Counsel further submitted that no appeal had been filed against that ruling and that it had not been set aside. Accordingly, Counsel submitted that the Respondent and Interested Parties could not invite the Court to reconsider its final determination. 73. Regarding the second issue, Counsel submitted that Article 42, as read with Articles 69 and 70 of the Constitution, confers a substantive and enforceable right. Counsel further submitted that the scale of departure from the applicable zoning framework, in the absence of adequate infrastructural assessment, constitutes a breach of these constitutional provisions. To support this argument, Counsel relied on Ndambiri & Another v Nairobi Metropolitan Services & 19 Others [2024] KEELC 13649 (KLR) to assert that Article 42 protects both the natural and built environment and imposes positive safeguarding obligations on public authorities. ELCL PET. E090 OF 2024 31

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74. Regarding the third issue, Counsel submitted that the constitutional threshold for public participation under Articles 10, 69 and 232, reinforced by Section 3 of the Environmental Management and Coordination Act, Regulation 17 of the EIA Regulations, and Section 115 of the County Governments Act, requires meaningful, informed and responsive engagement, not mere procedural formality. Counsel relied on Patel & 4 others v Osweta & 3 others [2022] KEELC 13477 (KLR) to submit that the Court has a supervisory duty to ensure that the Constitution and the EMCA are complied with to the letter and that the County Government and NEMA exercise an existing, not imaginary, power in making that decision. 75. Counsel submitted that the proposed development is of extremely high density in a low-density residential zone, and therefore the Interested Parties were obliged to demonstrate rigorous, meaningful and responsive engagement with the affected residents and neighbouring associations, which they failed to discharge. Counsel further submitted that although the evidence demonstrates that substantial objections and concerns were raised by the affected residents and resident associations regarding the extraordinary densification proposed, infrastructure inadequacy, sewerage concerns, traffic congestion, incompatibility with environmental degradation and the character the low-density of neighbourhood, there was no evidence that those concerns ELCL PET. E090 OF 2024 32

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were substantially considered, evaluated or incorporated into the ultimate decision-making process. 76. Counsel further submitted that the Respondent produced only a single set of minutes dated 11 th April 2024, despite claiming extensive engagement. Counsel further submitted that no comprehensive consultation reports, attendance registers, response matrices, technical evaluations, stakeholder analysis, or records demonstrating the resolution of concerns raised by the residents were produced in Court. 77. Counsel submitted that objections lodged directly with the 1 st Interested Party by the Spring Valley Residents Association and the Petitioner regarding the impugned development went unanswered, and that many attendees at the participation exercise were not residents of the affected area. 78. Counsel further submitted that the Interested Parties failed to adduce evidence showing that the affected residents were provided with adequate project information necessary to enable informed participation. Counsel argued that the individuals purported to have attended and consented to the proposed development are not residents of Peponi Road and therefore do not qualify as directly affected persons for lawful public participation. 79. Counsel also relied on Nabatkhanu Karim H.P & 12 Others v Hwaock IM & Another [2021] eKLR, where the Court emphasised the importance of meaningful public ELCL PET. E090 OF 2024 33

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participation in developments affecting low-density residential areas 80. Counsel submitted that the suit property is located within a low-density residential zone governed by the Nairobi City County Development Control Policy 2021. Counsel further submitted that the impugned development, an exceptionally high-density multi-storey project, falls within the area's zoning framework. Counsel also submitted that the 1 st Interested Party issued the impugned EIA Licence despite glaring inconsistencies. 81. Counsel further submitted that Rule 7(2)(b)(iv) of Legal Notice No. 32 of 2019 required the 1st Interested Party to consider conformity with the applicable zonal plan, a requirement it failed to meet. 82. Regarding the fourth issue, Counsel submitted that the suit property falls within Zone 13B under the Nairobi City County Development Control Policy, which designates the area as low-density and contemplates maisonettes, one-family dwellings, low-rise developments, restricted density, and the preservation of the neighbourhood character. Counsel further submitted that the development comprises a multi-project of 201-203 residential units, that the plot ratio of 588% exceeded the permissible limit of 50%, and that the approvals granted to the Respondent authorised only four floors. However, approximately construction thirteen floors, had proceeded to thereby rendering the development non-compliant even under the permit relied ELCL PET. E090 OF 2024 34

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upon. Counsel invoked Section 56(1)(e) of the PLUPA to emphasise that compliance with zoning and density regulations is mandatory, not discretionary. 83. Counsel submitted that in Rhapta Road Residents Association v Nairobi County Government & Others, Civil Appeal No. 160 of 2025, and in Mbaazi Avenue Residents Association v Metricon Homes Nairobi Company Limited & Others, Civil Appeal No. E010 of 2024, the Court of Appeal held that the Nairobi City County Development Control Policy, 2021, remained the operative planning instrument and directed the County Government to formulate a compliant framework within specified timelines, thereby supporting the Petitioner's case. 84. Regarding the Nairobi City County Government Ordinance, 2025, relied upon by the Respondent, Counsel submitted that the document contained no evidence of enactment, gazettement, or public participation. Counsel further relied on the decision in ELC Petition No. E012 of 2025, in which the Court found that the County Physical and Land Use Planning Consultative Forum required under Section 14 of PLUPA had not been constituted. Accordingly, Counsel submitted that it was implausible that a compliant ordinance could have been enacted in the short interval before the Respondent's affidavit was sworn. Counsel further relied on Sections 37, 46 and 61 and the Second and Third Schedules of PLUPA to submit that infrastructure adequacy must precede density intensification. ELCL PET. E090 OF 2024 35

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85. Counsel submitted that the 1 st Interested Party’s reliance on a developer-commissioned and funded EIA report, without independent verification, failed to meet its constitutional role as an environmental fiduciary. Counsel cited the Commission on Administrative Justice report dated 6 th February 2026 to highlight systemic weaknesses in Nairobi City County's development control processes. 86. Regarding the sixth issue, Counsel submitted that the precautionary principle provides that where there is a threat of serious or irreversible environmental harm, lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation. 87. Counsel relied on Section 3 of the Environmental Management and Coordination Act and the decisions in Ken Kasing'a v Daniel Kiplagat Kirui & 5 Others [2015] eKLR, Save Lamu & 5 Others v NEMA & Another [2019] eKLR, and Mohamed Ali Baadi & Others v Attorney General & 11 Others [2018] eKLR to submit that a credible risk of irreversible environmental harm warrants preventive judicial intervention even in the absence of full scientific certainty, Counsel contended that the evidence of infrastructural overload, drainage failure, sewer collapse, traffic congestion and riparian encroachment met that threshold. 88. Regarding the 7th issue, Counsel submitted that the approvals do not comply with Article 47 of the Constitution. Counsel further submitted that the impugned approvals were ELCL PET. E090 OF 2024 36

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unlawful for disregarding the zoning framework, irrational for failing to engage with infrastructural and environmental evidence, and procedurally unfair for excluding residents from meaningful participation. Counsel also submitted that the decisions lacked a demonstrable evidentiary basis. 89. Counsel submitted that judicial deference to regulatory expertise cannot legitimise unconstitutional conduct. Counsel further submitted that Article 70 of the Constitution confers broad preventive powers on the Court, and that the cumulative effect of the identified defects rendered the approvals constitutionally unsustainable, thereby warranting the reliefs sought in the Petition. 90. In conclusion, Counsel urged the Court to allow the Petition as prayed. THE RESPONDENT’S SUBMISSIONS 91. The Respondent filed its submissions dated 5 th June 2026. On behalf of the Respondent, Counsel submitted that the sole issue for determination is whether the Respondent obtained the necessary approvals and complied with the applicable constitutional, environmental and zoning laws and regulations. 92. Counsel invoked the locus classicus in Anarita Karimi Njeru v Republic [1979] KEHC 30 (KLR) to submit that a person seeking constitutional redress must set out with reasonable precision the provisions said to be infringed and the manner of infringement. Counsel also relied on Abdalla ELCL PET. E090 OF 2024 37

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& 2 others v County Government of Kilifi & 2 others [2017] KEELC 3550 (KLR), to submit that Section 3(4) of the EMCA and Article 70(3) of the Constitution removed the common-law locus standi bar in environmental matters. It was submitted that, notwithstanding this relaxation of standing, the Petitioner remained bound by the ordinary burden of proof under Section 107 of the Evidence Act, which it failed to discharge. 93. Counsel set out a chronology to demonstrate lawful compliance: that the change of user from single to multidwelling use was processed under Sections 55(1)(g) and 56(c) of PLUPA following a report by a registered physical planner, with public notice published in the Daily Nation on 18th October 2023 and further notice in The Star on 10 th January 2024 ahead of a public participation exercise scheduled for 17th January 2024; that no objection was raised at that stage, resulting in the Notification of Approval of Change of Use; that the Kenya Urban Roads Authority was engaged to conduct a Traffic Impact Assessment, which found that traffic delays at the affected junctions would increase with or without the development, a finding the Petitioner did not contest at the time; and that only two individuals attended on behalf of the Petitioner at the scheduled public participation exercise, a turnout submitted to be inadequate representation of an association of eleven residential estates. Counsel relied on Musila v Thengi & 2 others [2025] KECA 750 (KLR) to submit that a party who ELCL PET. E090 OF 2024 38

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fails to utilize a reasonable opportunity to be heard granted cannot later complain of a denial of natural justice. 94. Counsel further submitted that the Petitioner's only formal objection, dated 16th January 2024 and signed by the Petitioner's director on behalf of eleven chairpersons, does not constitute sufficient representation for the 11 absent members. Counsel submitted that the EIA Study Report was conducted on 7th March 2024 and a detailed report addressing traffic, sewerage, riparian, waste management and drainage concerns was stamped by the lead expert. Counsel urged the Court to disregard the unstamped, unsigned EIA draft annexed to the Petitioner’s pleadings. Counsel submitted that the public notice of the EIA report was published in The Star and The People Daily on 22 nd March 2025 and was gazetted, again without response from the Petitioner, culminating in the issuance of the EIA licence. Counsel relied on Mui Coal Basin Local Community & 15 others v Permanent Secretary, Ministry of Energy & 17 others [2015] eKLR to submit that the process met the constitutional parameters of public participation articulated in that decision. 95. Counsel submitted that neither Interested Party found the development out of character with its surroundings. Counsel further submitted that the Petitioner's Social Impact Assessment recorded only twelve objectors, an insufficient basis to characterise the Petitioner as opposed to the project. Counsel compared the case with the neighbouring ELCL PET. E090 OF 2024 39

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twenty-five-storey Diplomat Residences, said to be unchallenged by the Petitioner, and with the Respondent's Supplementary Affidavit, which asserts that the applicable area permits up to sixteen floors and that nine further highrise developments in the vicinity remain similarly unchallenged. 96. Regarding the contested question of the governing zoning instrument, Counsel relied on two Court of Appeal decisions: Claire Kubochi Anami & Others (Rhapta Road Residents Association) v CECM Built Environment and Urban Planning, Nairobi City County & 20 Others , Civil Appeal E160 of 2025 to submit that developers who obtain permissions in good faith after multi-agency review should not be retroactively penalised in the absence of demonstrated illegality, and that approvals lawfully issued and acted upon remain valid pending the County's compliance with a structural timetable for adopting a compliant planning framework; and Mbaazi Avenue Residents Association & Another v Metricon Home Nairobi Company Limited & 2 Others , Civil Appeal E1010 of 2024 which applied the same reasoning to dismiss a similar challenge to a sixteen-storey development. 97. Counsel further relied on the Supreme Court's ruling in Mbaazi Avenue Residents' Association & another v Metricon Home Nairobi Company Limited & 2 others [2026] KESC 30 (KLR), which dismissed an application for conservatory orders pending appeal in the Mbaazi Avenue ELCL PET. E090 OF 2024 40

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matter, to support the proposition that construction may properly continue pending the final determination of zoning disputes of this character. In light of the foregoing, Counsel submitted that the Petitioner had failed to demonstrate any zoning violation and that the Respondent's compliance with the applicable regulations remained unrebutted by binding precedent. 98. Counsel relied on Edarus Salim Husein & 6 others v Shariffia Binti Salim & 3 others [2022] eKLR and the authorities cited therein, including John Harun Mwau v Peter Gastrow & 3 Others [2014] eKLR and Uhuru Muigai Kenyatta v Nairobi Star Publications Limited [2013] eKLR, to submit that constitutional remedies are reserved for serious cases and should not be invoked where the matter can be resolved without recourse to the Constitution. It was submitted that the Petitioner had neither pleaded nor proved any constitutional violation with the requisite specificity, and that the allegations of approvals obtained irregularly and zoning breaches remained unproven. Accordingly, Counsel urged the Court to dismiss the Petition in its entirety with costs. To support this point, Counsel relied on Section 27(1) of the Civil Procedure Act and Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR (KESC) to emphasize the principle that costs follow the event. THE 1ST INTERESTED PARTY’S SUBMISSIONS ELCL PET. E090 OF 2024 41

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99. The 1st Interested Party filed its Submissions, dated 19 th June 2026. On behalf of the 1st Interested Party, Counsel outlined the following issues for the Court’s determination: a) Whether the Environmental Impact Assessment (EIA) process complied with the legal requirements; and b) Whether the public participation process was conducted in a lawful, adequate and transparent manner. 100. Regarding the first issue, Counsel submitted that the 1 st Interested Party acted within its statutory mandate under the Environmental Management and Coordination Act and the Environmental Regulations, Environmental 2003. (Impact Assessment Counsel Impact and Audit) further submitted that Assessment Licence No. NEMA/EIA/PSL/32989, issued on 12th June 2024, was lawfully and procedurally granted after due diligence, technical evaluation, and consideration of public input. 101. Counsel reiterated its statutory mandate under Sections 6(1) and 7 of the Environmental Management and Coordination Act and set out the procedural chronology for the approval of the Terms of Reference, the submission of the EIA Study Report, and consultation with relevant lead agencies, including the National Construction Authority and the National Building Inspectorate. Counsel submitted that the ELCL PET. E090 OF 2024 42

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Authority reviewed and addressed residents' objections, including the Petitioner's, and incorporated the resulting mitigation measures into the licence conditions. Counsel further submitted that a site inspection confirmed the site's suitability subject to the recommended safeguards. 102. Counsel submitted that a presumption of regularity attaches to licences issued under Section 63 of EMCA. Counsel relied on Kibos Distillers Ltd & 4 others v Adega & 3 others [2020] KECA 875 (KLR) to assert that this presumption can be rebutted only by cogent, clear and uncontroverted evidence. Further reliance was placed on Ndambiri & another v Nairobi Metropolitan Services & 19 others [2024] KEELC 13649 (KLR) for the same principle. It was submitted that the Petitioner failed to adduce evidence sufficient to displace the presumption in respect of the licence under challenge. 103. Regarding the alleged failure to consider zoning conformity, Counsel acknowledged that Rule 7(2)(b)(iv) of the EIA Regulations requires consideration of conformity with the applicable land use or zonal plan, but submitted that the authority lacks power to approve or determine land-use density, as that function is reserved to the county government under PLUPA. Counsel argued that this was precisely why the 1st Interested Party sought the views of the 2nd Interested Party and other lead agencies during its review. It was further submitted that environmental approval is only one phase of a multi-agency approval process, and ELCL PET. E090 OF 2024 43

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that the Petitioner's contention effectively sought to impose on the 1st Interested Party an obligation beyond its statutory limits. 104. Regarding the alleged failure to independently verify the developer-sponsored EIA report, Counsel submitted that reliance on reports prepared by registered experts is permissible under EMCA and the Regulations, subject to review by the 1st Interested Party’s technical officers. Counsel further submitted that independent verification was carried out through a site inspection and expert evaluation. 105. Regarding the alleged encroachment on the riparian reserve, Counsel submitted that the 1st Interested Party’s licence conditions required compliance with applicable riparian protections. Counsel further submitted that a Water Resources Authority pegging report, prepared by the agency responsible for demarcating riparian boundaries, recommended the minimum reserve to be maintained. Based on the riparian marking and the Pegging Report, Counsel submitted that the Petitioner had not adduced sufficient evidence to warrant a finding that the suit property lies on riparian land. Counsel relied on Kinuthia v Athi Water Works Development Agency & 2 others [2023] KEELC 21396 (KLR) to address the statutory and regulatory framework governing riparian width under the Water Quality Regulations, 2006, and the Water Resources Management Rules, 2007. Counsel further submitted that the Petitioner had adduced insufficient evidence to establish ELCL PET. E090 OF 2024 44

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that the development sits on riparian land, and urged the Court to find that claim unproven. 106. Counsel further submitted that the 1 st Interested Party facilitated a robust public participation process, including publishing notices in the Gazette, national newspapers, and on radio, and holding public meetings. Counsel further submitted that comments and objections, including those from the Petitioner, were received from residents, considered, and incorporated into the final EIA and licence conditions. Relying on Mui Coal Basin Local Community & 15 others v Permanent Secretary, Ministry of Energy & 17 others [2015] eKLR, Counsel further submitted that public participation does not confer a veto on affected persons, and that consideration of objections, rather than their unanimous acceptance, satisfies the constitutional threshold. 107. Further reliance was placed on Ndambiri & Another v Nairobi Metropolitan Services & 19 Others [2024] KEELC 13649 (KLR) to submit that an opportunity to participate, evidenced by newspaper publication, is sufficient even in the absence of a detailed record of comments received. Counsel submitted that the Petitioner failed to show that attendees who identified as residents were in fact outsiders, nor did the Petitioner establish that the process was tokenistic. 108. Counsel reiterated that its licensing procedures complied with all statutory requirements, and that, in the absence of ELCL PET. E090 OF 2024 45

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evidence that the licence was issued without due process, that the land is riparian, or that public participation was flawed, the licence should be upheld. THE 2ND INTERESTED PARTY’S SUBMISSIONS 109. The 2nd Interested Party filed its submissions dated 8 th June 2026. On its behalf, Counsel outlined the following issues for the Court’s determination: a) Whether the proposed development violates the Petitioner’s rights to a clean and healthy environment as provided for under Articles 42, 69 and 70 of the Constitution of Kenya 2010; b) Whether the 2nd Interested Party has violated the principles of sustainable development by approving the project without ensuring compliance with applicable environmental and zoning laws; c) Whether the proposed development is in conformity with the Nairobi City County Development Control Policy; and d) Whether the Petitioners are entitled to the orders sought. 110. Regarding the first issue, Counsel submitted that the 2 nd Interested Party had discharged its statutory mandate in full compliance with the Constitution of Kenya 2010, the Physical and Land Use Planning Act (PLUPA), and the applicable regulations, and that it had not violated the Petitioner's members' rights as alleged. ELCL PET. E090 OF 2024 46

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111. Counsel submitted that the Respondent applied for and was granted a Change of User Approval on 2 nd November 2023 and a Development Permission on 19 th December 2023 for the proposed 203-unit, 13-storey residential development, both subject to conditions, including an approved EIA licence, traffic management approval, and maintenance of the riparian way-leave. Counsel further submitted that the Petitioner did not challenge these approvals before the County Physical and Land Use Planning Liaison Committee under Section 78 of PLUPA. Counsel further submitted that, upon receiving complaints from the Petitioner and the Nyari Estate Residents Association regarding effluent disposal, river protection, and traffic impact, the County suspended the project and directed the Respondent to convene public consultation meetings, thereby demonstrating active regulatory oversight rather than dereliction of duty. 112. Counsel submitted that the Petitioner's fears of infrastructural strain, population increase, and tree loss were speculative and unsupported by evidence, and that each concern had in any event been addressed in the EIA Report. Counsel relied on the Court of Appeal decision in Mbaazi Avenue Residents Association & another v Metricon Home Nairobi Company Limited & 2 others [2025] KECA 1593 (KLR) to submit that the burden of proving environmental soundness lies with the project proponent and is discharged through the EIA process and licensing. Counsel further ELCL PET. E090 OF 2024 submitted that a Court is not an expert in 47

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environmental management and ought not to substitute its own judgment for that of NEMA save in exceptional circumstances. To support this argument, Counsel cited the Court of Appeal's reliance on the Indian Supreme Court's holding in Maharashtra State Board of Secondary and Higher Secondary Education & Another v Kurmasheth & Others [1985]. 113. Counsel further relied on Civil Appeal No. E160 of 2025, Claire Kubochi Anami & Others (suing as the officials of Rhapta Road Residents Association) v County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County & 19 Others, to submit that challenges to the validity of an EIA licence properly lie before the National Environment Tribunal under Section 129 of EMCA. Alternatively, Counsel submitted that non-compliance with licence conditions remains actionable in the future should it arise. 114. Counsel relied on Alice Muthoni Wahome v Attorney General & 2 Others [2021] eKLR to assert that a party invoking Article 22(1) of the Constitution must demonstrate a clear link between the allegedly infringed right, the constitutional provision relied upon, and the manner of contravention. Counsel further relied on the Court of Appeal’s Mbaazi Avenue holding that a Petitioner asserting a right to clean air must adduce evidence of actual or potential pollution. Counsel submitted that the Petitioner had adduced no such evidence before the Court. ELCL PET. E090 OF 2024 48

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115. Regarding the second issue, Counsel submitted that the proposed development complied with the Nairobi City County Development Control Policy, 2021, which the Court of Appeal confirmed in the Mbaazi Avenue case remains the operative planning preparation of a instrument compliant pending Physical the and County's Land Use Development Plan within twelve months of that judgment. 116. Counsel further submitted that the suit property fell within Zone 4 under the applicable ordinance, which permits commercial/residential high-rise apartments. It was submitted that NEMA's site observations confirmed that the surrounding Peponi Road/Spring Valley area was predominantly residential and residential-commercial in character, with two comparable projects under construction within 30 to 50 metres of the site. Counsel further relied on the Court of Appeal decision in Claire Kubochi Anami to submit that Courts should be reluctant to halt developments absent demonstrated illegality, and that developers who obtain approvals in good faith following multi-agency review ought not to be retroactively penalised, subject to pending projects remaining bound by any new lawful controls adopted through due process. 117. Regarding the third issue, Counsel submitted that the Petitioner failed to discharge its evidentiary burden and was accordingly not entitled to any of the declaratory, injunctive, or compensatory relief sought. On costs, Counsel relied on Section 27 of the Civil Procedure Act and the Supreme Court ELCL PET. E090 OF 2024 49

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decision in Rai & 3 Others v Rai & 4 Others (Petition 4 of 2012) [2014] eKLR to submit that costs follow the event as compensation to the successful party rather than as a penal measure, and urged that the Petition against the 2 nd Interested Party be dismissed with costs. THE PETITIONER'S FURTHER SUBMISSIONS 118. The Petitioner filed Further Submissions dated 16 th June 2026. Counsel contended that regulatory approvals, without more, did not immunise the impugned development from constitutional scrutiny, and that the real inquiry was whether the approvals were lawfully, rationally, procedurally and constitutionally issued. Counsel relied on the South African Constitutional Court decision in Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Mpumalanga Province & Others, which held that a decision-maker exercising an environmental mandate could not defer wholesale to another authority's assessment but had to independently interrogate sustainability, need, and socio-economic impact. 119. Counsel submitted that the Respondent had filed no independent expert evidence to rebut the Petitioner's Infrastructure Impact Assessment reports, regarding sewerage Assessment and that the inadequacy, and Social Impact technical findings traffic escalation, groundwater depletion and ecological sensitivity near the ELCL PET. E090 OF 2024 50

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Mathare River and Karura Forest therefore remained largely unchallenged. 120. Counsel submitted that constitutional adequacy is measured by the quality, inclusiveness, and responsiveness of engagement, rather than by the number of newspaper and gazette notices issued or meetings held. Counsel further submitted that the Respondent failed to demonstrate how the objections raised by the Petitioner and residents' representatives regarding density, traffic, and infrastructural strain were addressed by NEMA or the County Government. 121. On zoning, Counsel submitted that the presence of other high-density developments in the vicinity could not legalise the impugned development, and that the real issue was not building height in isolation but density, plot ratio and infrastructural carrying capacity, which the Respondent had not addressed. Counsel relied on Section 56 of PLUPA to support the proposition that compliance with zoning and density controls is mandatory. 122. Counsel submitted that the Respondent's reliance on the Court of Appeal decisions in Rhapta Road Residents Association v Nairobi City County Government & Others and Mbaazi Avenue Residents Association v Metricon Homes Nairobi Company Limited & Others did not assist its case, as neither decision held that Countyapproved developments were automatically lawful or immune from review; rather, both decisions confirmed that, pending a lawful zoning framework, the Nairobi City County ELCL PET. E090 OF 2024 51

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Development Control Policy (December 2021) remained the applicable instrument, under which the suit property is designated a Single Dwelling Residential Zone. 123. Counsel invoked the precautionary principle under Article 70 of the Constitution, submitting that preventive judicial intervention was warranted where environmental and infrastructural foreseeable harm had been demonstrated, without requiring proof that such harm had already materialised. Counsel further submitted that the evidence before the court shows substantial zoning noncompliance; inadequate public participation; insufficient infrastructural scrutiny; environmental risk; procedural irregularity; and unlawful exercise of planning discretion. 124.Through Supplementary Submissions dated 29 th June 2026, filed in response to the 1st Interested Party's submissions and the 2nd Interested Party's supplementary submissions, the Petitioner clarified that the Petition was neither an appeal against NEMA's technical assessment nor an invitation to the court to substitute environmental its own opinion for that of the regulator, but rather a constitutional challenge to the legality of the decision-making process culminating in the issuance of the EIA licence. 125. The Petitioner submitted that NEMA's statutory mandate could not be considerations, exercised relying on in isolation Rule from 7(2)(b)(iv) planning of the Environmental (Impact Assessment and Audit) Regulations, 2003, which requires consideration of a project's conformity ELCL PET. E090 OF 2024 52

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with the applicable land use or zoning plan. It contended that NEMA's characterisation of zoning, riparian protection and traffic as matters falling exclusively within the mandates of other agencies was inconsistent with the constitutional requirement of integrated environmental governance, invoking the same reasoning as in Fuel Retailers, which it relied upon in its Further Submissions. 126. On the doctrine of exhaustion, the Petitioner submitted that the National Environment Tribunal, established under Section 129 of the EMCA, lacked jurisdiction to determine constitutional questions or to grant the reliefs sought. The Petition, founded on the cumulative exercise of statutory power by multiple public authorities and on alleged violations of Articles 22, 23, 70 and 162(2)(b) of the Constitution read with Section 13 of the Environment and Land Court Act, fell within this court's original jurisdiction. 127. Counsel further submitted that the authorities relied on by the 1st Interested Party, namely Kibos Distillers Ltd & 4 Others v Benson Ambuti Adega & 3 Others, Ndambiri & Another v Nairobi Metropolitan Services & 19 Others, and Mui Coal Basin Local Community & 15 Others v Permanent Secretary, Ministry of Energy & 17 Others, did not displace the Court's supervisory jurisdiction; that the presumption of regularity attaching to administrative action remains rebuttable on credible evidence of illegality or irrationality; and that the Mui Coal ELCL PET. E090 OF 2024 53

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Basin case itself required public participation to be genuine and responsive rather than a token exercise. 128. Regarding riparian protection, the Petitioner submitted that the 1st Interested Party's reliance on the Water Resources Authority pegging report and the associated licence conditions did not address the Petitioner's case. The material question was whether NEMA had independently satisfied itself, before licensing, that the riparian corridor was environmentally significant and that the proposed mitigation measures were adequate, monitoring or enforcement and whether mechanisms subsequent could not retrospectively cure a deficient assessment. 129.Responding to the 2nd Interested Party's supplementary submissions, the Petitioner clarified that its reference to newspaper reports of criminal proceedings involving the deponent of the 2nd Interested Party's replying affidavit was not advanced as proof of the truth of the reported allegations, and that no determination of criminal culpability was sought, while acknowledging the presumption of innocence under Article 50(2)(a) of the Constitution. The Petitioner further submitted that none of the reliefs sought in the Petition was predicated on those proceedings, and that the reference was made solely to provide context for the Court's evaluation of the evidence on record. 130. Counsel submitted that even if the impugned publication and all references to it were disregarded in their entirety, the Petition ELCL PET. E090 OF 2024 remained fully supported by the pleadings, 54

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affidavits, statutory approvals and documentary evidence already on record, and that the determination of the matter properly turned on whether the impugned approvals were issued through a lawful, rational, procedurally fair and constitutionally compliant process. THE RESPONDENT’S FURTHER SUBMISSIONS 131. The Respondent filed submissions dated 18th June 2026. 132. Counsel submitted that the Petitioners reliance on criminal charges alleged against Mr Patrick Analo, the 2nd Interested Party’s deponent, and on a newspaper article constitutes evidence from the bar. Counsel further submitted that submissions are not evidence and that the court cannot base its decision on a statement made from the bar. To support this argument, Counsel relied on Daniel Torotich Arap Moi v Mwangi Stephen Murithi & another (2014) eKLR. Counsel also opposed reliance on the charges, arguing that a charge sheet is not a conviction. 133. Regarding the approvals, Counsel submitted that they were lawfully obtained and that the Petition has shown nothing to the contrary. Counsel argued that, insofar as the Petition seeks to quash the EIA Licence, it should have been challenged before the National Environmental Tribunal under Section 129 of the EMCA. To support this point, reliance was placed on Claire Kubochi Anami & others (suing as officials of Rhapta Road Residents Association) v County Executive Committee Member Built Environment & Urban Planning Nairobi City County & ELCL PET. E090 OF 2024 55

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20 others, Civil Appeal No. E160 of 2025 and Edarus Salim Husein & 6 others v Shariffia Binti Salim & 3 others (2022) eKLR and John Harum Mwau v Peter Gastrow & 3 others. 134. Regarding the Petitioner’s expert report, the EIA Study Report, Counsel argued that it is unsigned, unstamped, and not authenticated by anyone. Counsel urged the court to disregard it as a mere draft. 135. Counsel submitted that the Respondent relied on the signed and stamped report of the lead expert, Mr Wilfred Murigi, the traffic assessment approved by KURA, which found that traffic on Peponi Road would increase with or without the project and the recommendations on soil and river. 136. Regarding public participation, Counsel submitted that the change of use was advertised in the Daily Nation on 18 th October 2023 and in the Star on 10 th January 2024, and that a notice was posted at the property gate. A meeting was held on 17th January 2024, at which the Petitioner sent two representatives. Counsel further submitted that the assessment was carried out on 7 th March 2024 with participation; the report was then advertised in the Star and the People Daily on 22nd March 2025, and in the Gazette as well. It was submitted that the Petitioner was accorded a reasonable opportunity to be heard. 137. Regarding zoning, Counsel submitted that the instrument in force is the Nairobi City County Development Control Policy of 2021. Counsel contended that in Claire Kubochi Anami & ELCL PET. E090 OF 2024 56

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others v CECM Built Environment and Urban Planning, Nairobi City County & 20 others (supra), the Court of Appeal held that approvals lawfully issued and acted upon should not be invalidated unless illegality is shown, and that developers who obtained permissions in good faith, after review by several agencies, should not be penalised unless illegality is shown. 138. Counsel argued that the presence of Diplomat Residences, which is next door and comprises 25 storeys, and of other 9 buildings makes the respondents' development lawful and also shows the character of the area which the Petitioner has put in issue. On height, Counsel submitted that the Petitioner accepts that the area permits 16 storeys, while the Respondent’s development has 13 storeys. Counsel argued that the Petitioner’s allegation that the building exceeds the approvals is asserted from the bar, without any measurement, plan or evidence. Counsel maintained that no zoning illegality has been shown and that the development is lawful and within the permitted limits. 139. Regarding the precautionary principle, Counsel submitted that it cannot be the basis for halting a development that has been studied and licensed, on the basis of fears the study has already addressed. 140. Regarding the constitutional threshold, Counsel submitted that the Petition does not meet the threshold set out in Anarita Karimi Njiru v Republic (supra). Counsel further submitted that the Petition is premature, as the 2 nd ELCL PET. E090 OF 2024 57

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Respondent suspended the project on 18 th September 2024 and directed further consultation and a traffic study, yet the Petitioner filed the Petition on 31st October, before the process could be concluded. 141. Regarding the conservatory orders, Counsel submitted that they should not stand because the Petitioner has not established a prima facie case of illegality, has not shown any irreparable harm, and has not shown a balance of convenience in its favour. ANALYSIS AND DETERMINATION 142. Having considered the Petition, the respective responses and the rival submission, the following the Petitioner issues arise for determination: a) Whether has locus standi, whether the Petition meets the constitutional threshold and whether this Court has jurisdiction; c) Whether there was adequate public participation in the planning and EIA processes; d) Whether the EIA process was lawfully undertaken and the EIA Licence lawfully issued; e) Whether the proposed development complies with the applicable zoning and physical planning framework; f) Whether the Petitioner has established violation of Articles 42, 69 and 70 of the Constitution. g) Whether the Petitioner is entitled to the reliefs sought. ELCL PET. E090 OF 2024 58

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WHETHER THE PETITIONER HAS LOCUS STANDI, WHETHER THE PETITION MEETS THE CONSTITUTIONAL THRESHOLD AND WHETHER THIS COURT HAS JURISDICTION TO DETERMINE THE PETITION 143. The Respondent challenged the Petitioner’s standing to institute this Petition, contending that it failed to produce any document identifying the residents on whose behalf it purported to act. Article 22(1) of the Constitution permits every person to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. 144. Article 22(2) permits proceedings to be instituted by a person acting in their own interest, on behalf of another person who cannot act in their own name, as a member or in the interest of a group or class of persons in the public interest, or by an association acting in the interest of one or more of its members. Article 258 confers standing in proceedings where the Constitution has been contravened or is threatened with contravention. 145. Article 70(1) of the Constitution provides that if a person alleges that a right to a clean and healthy environment recognised under Article 42 has been, is being, or is likely to be contravened, the person may apply to a court for redress. Article 70(2) expressly provides that an applicant need not demonstrate that any person has incurred loss or suffered injury. ELCL PET. E090 OF 2024 59

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146. Section 3 of the Environmental Management and Coordination Act reinforces this provision by providing that if a person alleges that the right to a clean and healthy environment has been, is being, or is likely to be contravened, they may apply to the Environment and Land Court for redress. Section 3(4) further provides that a person who brings an action under that Section need not demonstrate that they have incurred loss or suffered injury. 147. In Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others (2014) eKLR, the Court observed as follows: “It is to be noted that the promulgation of the 2010 Constitution enlarged the scope of locus standi in Kenya. Articles 22 and 258 have empowered every person, whether corporate or non-incorporated, to move the court contesting any contravention of the Bill of Rights or the Constitution in general”. 148. In the matter at hand, the Petitioner contends that it represents residents and property owners whose properties are adjacent to the proposed development and who allege environmental and planning impacts on neighbouring properties. The Petitioner’s complaint concerns an alleged threat to the neighbourhood's environmental conditions and the legality of decisions regarding the proposed development adjacent to its members' properties. The Petitioner’s interest in the proceedings is therefore not ELCL PET. E090 OF 2024 60

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speculative. Accordingly, I find that the Petitioner has the requisite standing to bring these proceedings. 149. The Respondent challenged the Petition on the ground that it failed to meet the constitutional threshold of precision. It is well established that a Petitioner seeking redress under the Constitution must state their claim with precision, identifying the provisions of the Constitution alleged to have been violated and the manner of the alleged violation. This principle was set out in the case of Anarita Karimi Njeru v Republic (1979) Eklr 154, where the Court held that: “We would, however, again stress that if a person is seeking redress for the High court on a matter which involves a reference of the Constitution, it is important if only to ensure justice is dome to his case that he should set with reasonable precision, that which he complains, the constitutional provisions said to be infringed and the manner in which they are alleged to be infringed.” 150. The principle was reaffirmed by the Court of Appeal in the case of Mumo Matemu vs Trusted Society of Human Rights Alliance & Others (2013) eKLR as follows: “We cannot but emphasise the importance of precise claims in due substantive justice and the exercise of jurisdiction by a court. In essence, due process, substantive justice ELCL PET. E090 OF 2024 61

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and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not conterminous although with exactitude. precision must Restated, remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic constitutional been provisions violated. knowing that utterance We the alleged speak whole of the to have particularly function of pleadings, hearings, submissions and the judicial decision is to define issues in the point…Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice as they give fair notice to the other party. The principle in Anarita Njeru Karimi (supra) that established the rule that requires reasonable precision in framing of issues in petitions is an extension of this principle.” 151. Further, the Supreme Court of Kenya has articulated this position in the case of Communication Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others [2014] eKLR, as follows: ELCL PET. E090 OF 2024 62

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‘Although Article 22 (1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v. Republic [1979] KLR 154; the necessity of a link between the aggrieved party, the provisions of the Constitution contravened, and alleged the to have manifestation been of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the Constitutional process of dispute settlement…….’ 152. The principle in Anarita Karimi Njeru (supra) underscores the need to define the dispute for the Court's determination. In the matter at hand, the Petitioner contends that its members' rights, enshrined in Articles 42, 69 and 70 of the Constitution, have been violated, and sets out the factual basis for these alleged violations. The Petition also identifies issues relating to public participation, environmental and infrastructure constraints, to which the Respondent has responded in detail. Accordingly, I find that the Petition has met the constitutional threshold of precision. 153. Regarding jurisdiction, it is trite that it is everything and that without it the Court cannot take one more step in the proceedings. The record shows that this Court considered ELCL PET. E090 OF 2024 63

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and determined the issue of jurisdiction in its ruling of 20 th December 2024. That ruling has neither been challenged nor set aside. In light of the foregoing, I see no basis to reopen that determination. Accordingly, this Court has jurisdiction to hear and determine the Petition. WHETHER THERE WAS ADEQUATE PUBLIC PARTICIPATION IN THE PLANNING AND EIA PROCESS 154. The Petitioner contends that public participation in relation to the proposed project was inadequate and failed to meaningfully address the residents' concerns. The Petitioner relied on Articles 10, 69 and 232 of the Constitution, Section 3 of the Environmental Management and Coordination Act, and Regulations 17, 21 and 22 of the Environment (Impact Assessment and Audit) Regulations 2003. 155. Public participation is a constitutional value under Article 10 of the Constitution and an important component of environmental governance. 156. In British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR, the Supreme Court laid down the guiding principles on public participation as follows: ELCL PET. E090 OF 2024 64

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i. As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance. ii. The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation. iii.The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means. iv. Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation. v. Public participation is not an abstract notion; it must be purposive and meaningful. vi. Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis. vii. Public process ELCL PET. E090 OF 2024 participation consisting of is oral not necessarily hearings, a written 65

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submissions can also be made. The fact that someone was not heard is not enough to annul the process. viii. Allegation of lack of public participation does not automatically allegations must vitiate be the process. considered within The the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case-to-case basis. ix. Components of meaningful public participation include the following: a. clarity of the subject matter for the public to understand; b. structures and processes (medium of engagement) of participation that are clear and simple c. opportunity for balanced influence from the public in general; d. commitment to the process; e. inclusive and effective representation; f. integrity and transparency of the process; g. capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter. 157. In Kiambu County Government & 3 others v Robert N Gakuru & others (20170 eKLR the Court of Appeal stated as follows: ELCL PET. E090 OF 2024 66

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“The issue immense of public participation significance considering is of the primacy it has been given in the supreme law of this country and in relevant statutes relating to institutions that touch on the lives of people. The Constitution, in Article 10, which binds all state organs, state officers, public officers and all persons in the discharge of public functions, highlights public participation as one of the ideals and aspirations of our democratic nation.” 158. The evidence on record discloses two related yet distinct forms of participation concerning the proposed development. a) Public participation for development permission. 159. Regarding public participation in planning and development permission, the Petitioner contends that the Respondent failed to publicise the application for development permission as required under Sections 58(7) and (8) of the Physical and Land Use Planning Act and under Regulation 15(2) of the Physical and Land Use Planning (Development Permission and Control) (General Regulations), 2021. It further contends that its members were not consulted and that the process was inadequate because the number of participants did not adequately represent the residents affected by the development. 160. Section 58(7) and (8) of PLUPA require an applicant for development permission to notify the public of the proposed ELCL PET. E090 OF 2024 67

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development in the manner prescribed by the Cabinet Secretary and to invite objections to be submitted to the relevant County Executive Committee Member. Regulation 15(2) requires that an application for development permission be accompanied, among other documents, by proof of public notification under Section 58(7) and (8), where applicable. 161. The Respondent contends that a public notice dated 17 th October 2023 was affixed at the gate; that a public notice was published in the Daily Nation on 18 th October 2023, notifying the public, including the Petitioner, of the intended change of use and inviting public participation; and that a further notice was published in the Star on 10 th January 2024, inviting the public to submit their views on the proposed change of use from a single dwelling to a multidwelling development. The notice also scheduled a public participation meeting for 17th January 2024. 162. The 1st Interested Party asserts that the Respondent complied with the public participation requirements. 163. The evidence presented shows that public notices were published in the Kenya Gazette and in newspapers, and that a public participation meeting was held. I am therefore not convinced that the planning process was carried out without any opportunity for public participation. 164. b) Public participation for the EIA License. 165. The Petitioner undertaken ELCL PET. E090 OF 2024 contends violates that the Regulation public 17(2) participation of the 68

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Environmental Regulations, (Impact which Assessment requires a and proponent, Audit) after the Authority approves the project report, to publicise the project by— i) posting posters in strategic public places in the vicinity of the site of the proposed project informing the affected parties and communities of the proposed project; ii) publishing a notice on the proposed project for two successive weeks in a newspaper that has a nationwide circulation; and iii) making an announcement of the notice in both official and local languages in a radio with a nationwide coverage for at least once a week for two consecutive weeks; iv) hold at least three public meetings with the affected parties and communities to explain the project and its effects, and to receive their oral or written comments; v) ensure that appropriate notices are sent out at least one week prior to the meetings and that the venue and times of the meetings are convenient for the affected communities and the other concerned parties; and vi) ensure, in consultation with the Authority that a suitably qualified co-ordinator is appointed to receive and record both oral and written ELCL PET. E090 OF 2024 69

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comments and any translations thereof received during all public meetings for onward transmission to the Authority. 166. The Petitioner contends that although affected residents and resident associations raised substantial objections and concerns regarding infrastructural inadequacy, sewerage, traffic congestion, and environmental degradation, no evidence was adduced to show that those concerns were substantively considered, evaluated, or incorporated into the decision-making process. The Petitioner further contends that no evidence in the form of consultation reports, attendance registers, response matrices, technical evaluations, or records demonstrating the resolution of the concerns raised was produced to demonstrate meaningful public participation. It was argued that publishing notices and convening a meeting did not constitute meaningful participation. The Petitioner further contends that the Interested Parties failed to show that the affected residents were provided with adequate project information necessary to enable informed participation. It was argued that the individuals purported to have attended and consented to the proposed development are not residents of Peponi Road. 167. The 1st Interested Party contends that the Respondent conducted meaningful public participation in accordance with the EMCA and the EIA Regulations. It maintains that adequate notice was given to residents and other stakeholders through newspaper advertisements, public ELCL PET. E090 OF 2024 70

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notices, and direct invitations, and that during the public participation, residents were given the opportunity to submit comments and objections regarding the proposed project. The 1st Interested Party further states that it received objections from the Spring Valley Residents Association dated 3rd April 2024; from the Petitioner dated 11 th April 2024 and 4th July 2024; and from the Peponi Residents Association dated 10th April. 168. The Respondent and the 1st Interested Party produced Notices published in the Star and the People Daily on 22 nd March 2024, and in the Kenya Gazette, inviting the public to submit comments on the ESIA Study Report. The 1 st Interested Party also produced comments received from the National Construction Authority, which stated it had no objection to the proposed development, and from the Building Inspectorate Authority on 27th March 2024, as well as minutes of the public participation meetings held on 17 th January 2024 and 11th April 2024, in which the Petitioner's representatives attended. It considered these objections and incorporated them into the final EIA before issuing the licence. 169. The 2nd Interested Party subsequently required further public consultation after suspending the project in response to complaints about waste management, river protection, and traffic. This shows that the regulatory process did not dismiss public concerns as irrelevant. ELCL PET. E090 OF 2024 71

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170. The Court is mindful that public participation requires more than merely providing an opportunity to make representations. The views must be considered in good faith, as held in Mui Coal Basin Local Community & 1 others v Permanent Secretary, Ministry of Energy & 17 others. However, that obligation does not require the decision-maker to respond individually in writing to every objection or to accept the views expressed. 171. The concerns raised subsequently led, among other measures, to the suspension of the project and further consultation on waste management and river protection. Although there is no evidence that a separate response was provided to each complaint, the Petitioner has not demonstrated to the Court's satisfaction that the process was a sham or that the regulatory authorities failed to consider the objections raised. The Petitioner has not shown that the absence of individual responses rendered the public participation unlawful. 172. Considering the process as a whole, this Court is satisfied that the affected public was given reasonable notice and a reasonable opportunity to participate, that the subject matter was disclosed, and that the representations and objections were both received and considered before the Licence was issued. 173. However, the Court emphasises that public participation in environmental matters is a continuing obligation, particularly ELCL PET. E090 OF 2024 72

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when material changes to the project or new environmental concerns arise WHETHER THE ENVIRONMENTAL IMPACT ASSESSMENT PROCESS WAS LAWFULLY UNDERTAKEN AND THE EIA LICENCE LAWFULLY ISSUED 174. Section 58 of EMCA provides that notwithstanding any approval, permit or licence granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall, before financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person, any undertaking specified in the second schedule to this Act submit a project to the Authority in the prescribed form giving the prescribed information and which shall be accompanied by the prescribed fee. 175. The Petitioner challenged the adequacy and independence of the EIA process, arguing that the EIA report was prepared at the developer's request and therefore could not substitute for an independent regulatory assessment. The Petitioner further asserts that the 1st Interested Party failed to present any documentary evidence verification of the report's demonstrating conclusions. independent The Petitioner challenges the EIA licence issued on 12 th June 2024, contending that it is inadequate and fails to address the physical, social and traffic impacts of the proposed development. It further contends that the 1 st Interested Party ELCL PET. E090 OF 2024 73

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issued the licence despite glaring inconsistencies and without considering conformity with the applicable zonal plan. 176. The 1st Interested Party contended that it acted within its statutory mandate under EMCA and the EIA regulations. It further contended that the EIA Licence was issued to the Respondent after confirming that the Respondent had met the statutory requirements. It was argued that the Respondent complied with all the conditions of the EIA Licence, and that the decision to issue the licence was based on the proposed project’s technical merits, public input, and the adequacy of the proposed mitigation measures to address any potential environmental impacts. 177. The 1st Interested Party contended that EMCA provisions and the EIA Regulations permit specialist reports prepared by registered experts and consultants, subject to the 1 st Interested Party's review and evaluation by its technical officers. The record shows that the EIA process included the approval and submission of the terms of reference, the submission of an EIA Study Report, consultation with lead agencies, receipt and consideration of objections, and a site visit. In this regard, the 1st Interested Party produced the approved terms of reference, comments from the National Construction Authority stating that it had no objection to the project, comments from the National Building Inspectorate, publication of public notices in the Kenya Gazette, The Star and The People Daily Newspapers, receipt and consideration ELCL PET. E090 OF 2024 74

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of objections, and a site inspection before the licence was issued. The 1st Interested Party maintained that the proposed project was approved and an EIA Licence issued after undergoing the prescribed procedure. 178. It is not in dispute that the 1 st Interested Party is responsible for evaluating the material submitted and determining whether the statutory requirements have been met. The Petitioner's contention that the EIA study report was not independent merely because the project proponent commissioned it cannot, without more, invalidate the report. Regulation 13(1) expressly provides that the proponent appoints experts to undertake the EIA Study and submits their names and qualifications to NEMA. More importantly, Regulation 13(2) requires a duly qualified lead expert to carry out every EIA Study. The Petitioner has not shown that the proponent prepared the report without the involvement of a duly qualified lead expert, nor has it identified any other statutory or procedural irregularity affecting the assessment. 179. The Petitioner has not shown that the 1 st Interested Party acted without jurisdiction, failed to comply with a mandatory statutory requirement, or issued the licence without an environmental assessment. The Petitioner has not shown that the decision was so irrational or procedurally defective as to warrant quashing the licence. The evidence before the Court shows that an EIA was undertaken and that the licence was issued subject to conditions. The fact that the EIA report ELCL PET. E090 OF 2024 75

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was prepared on behalf of the project proponent does not, without further evidence, invalidate the process. 180. Based on the foregoing, it is clear that the EIA process was lawfully undertaken and that the EIA Licence was lawfully issued. Accordingly, this Court finds that the Petitioner has failed to prove that the EIA Licence was unlawfully issued. WHETHER THE PROPOSED DEVELOPMENT COMPLIES WITH THE APPLICABLE ZONING AND PHYSICAL PLANNING FRAMEWORK 181. The Petitioner contends that the proposed development does not comply with the area's zoning requirements. It further contends that the approvals for the development contravene the applicable zoning and density controls, thereby rendering them ultra vires. 182. The Petitioner contends that the suit property falls within Zone 13B under the Nairobi City County Development Control Policy 2021, which covers the area between Redhill Road, Westlands Link Road, Peponi Road, Border of Karura Forest, Lower Kabete Road, Ngecha Road, and the Nairobi County Boarder. In this regard, the Petitioner relied on the Nairobi City County Development Control Policy 2021, contained in Sessional Paper No. 1 of 2023, and on the zoning map available on the website to demonstrate the suit property's zoning classification. 183. The Petitioner asserts that Zone 13B is characterised by low-density, single-dwelling residential development, with a plot ratio of 50% and ground coverage of 25%. Accordingly, ELCL PET. E090 OF 2024 76

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the Petitioner contends that the approved development, comprising approximately 201 residential units in a 14-storey building with a plot ratio of 588%, is inconsistent with the applicable zoning regulations. 184. The Respondent disputes the classification, asserting that the proposed development falls within a zone that permits high-rise residential development. In this regard, the Respondent relied on the Nairobi City County Government Zoning Ordinance 2025, contending that the property lies within the Westlands zone, which permits development up to 16 storeys, with a 1000% plot ratio and 50% ground coverage. The Petitioner contended that the 2021 policy is a nullity because it was not ratified by the County Assembly. 185. The 2nd Interested Party maintains that the property falls within Zone 4 under the Nairobi City Development Ordinance and Zoning Guidelines, which permit high-rise residential development. It further contended that it acted within its planning mandate when considering the development application under the applicable planning framework and that the development complied with the Nairobi City Development Control Policy. Conversely, the 1 st Interested Party asserted that the area's zoning character had evolved with the emergence of high-rise developments. 186. The Court has considered the decisions in Claire Kubochi & others v County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County & 20 others (Civil Appeal No. E10 of 2025) and in Mbaazi ELCL PET. E090 OF 2024 77

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Avenue Residents Association 7 Another v Metricon Home Nairobi Company Limited & 2 Others. These decisions are material because they addressed the status of Nairobi’s planning development control framework and held that, pending the formulation and adoption of a lawful framework, the Nairobi City County Development Control Policy 2021 remained the operative planning instrument. Accordingly, this Court finds that the Nairobi City County Development Control Policy 2021 was the operative planning instrument when the approvals were granted. 187. The subsequent 2025 zoning ordinance, which the Respondent acknowledged had not been gazetted, cannot, retrospectively, determine the legality of approvals granted in 2023. Similarly, the subsequent 2026 policy cannot, retrospectively, determine the legality of decisions made before its adoption. 188. Having found that the Nairobi City County Development Control Policy 2021 was the operative planning framework at the material time, the Court is called upon to determine the legal effect of the zoning designation applicable to the suit property and whether the 2nd Interested Party's decision to approve the development was unlawful. 189. It is not in dispute that the 2021 Policy designates Zone 13B as a low-density single-dwelling zone with specified development controls. The proposed development comprises 203 residential units in a 14-storey building, which is inconsistent with the applicable development parameters. ELCL PET. E090 OF 2024 78

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However, without further evidence, this finding does not determine the legality of the approvals. The Court must distinguish between non-compliance with the applicable zoning parameters and the illegality of the 2nd Interested Party's decision. 190. The 2nd Interested Party is responsible for considering and determining the applicable development. Section 57 of PLUPA provides that a person shall not carry out development within a County without development permission granted by the respective Executive Committee Member. Regarding development permission, Section 58 of PLUPA provides that a person shall apply for development permission from the County Executive Member in the prescribed form and after paying the prescribed fees. The Respondent averred that Laxmanbhai Construction Ltd, the then registered owner of the suit property, applied to the 2 nd Interested Party for a change of use from a single-family dwelling to multi-dwelling units. The evidence before the Court shows that the 2nd Interested Party considered the application for a change of use from a single-family dwelling to a multi-dwelling unit and approved it on 2 nd November 2023. It subsequently granted development permission for the proposed development, subject to the attached conditions. 191. The approvals identified the property as being in the Wetlands Kitusuru along Peponi Road for the development of 203 apartments. The 2nd Interested Party explained that the ELCL PET. E090 OF 2024 79

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Nairobi County Urban Planning Technical Committee independently reviewed and approved the development after considering its effects on infrastructure, traffic and the riparian reserve. The Petitioner argued that no evidence was presented to show how the committee reached its decision and insisted that the approvals were unlawfully issued. 192. In considering whether the 2nd Interested Party decision was irregular or unlawful, the Court is guided by the presumption of regularity. This is an evidential presumption that, where an official or public authority is shown to have performed an official act, the Court ordinarily presumes the act was lawful and in accordance with the prescribed procedure unless the person challenging it adduces evidence to the contrary. 193. In Export Processing Zone Authority and 10 others (Suing on their own behalf and on behalf of all residents of Owini Uhuru village in Mikindani Changamwe Area Mombasa) v National Environment Management Authority & 3 others (2024) KESC 7 (KLR) the Supreme Court stated as follows with respect to the doctrine of regularity: In general, the presumption of regularity presupposes that no official or person acting under an oath of office will do anything contrary to their official duty or omit anything which their office requires to be done. The doctrine provides a degree of deference to the actions or decisions made ELCL PET. E090 OF 2024 80

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by government officials or institutions. It is grounded in the assumption that these officials act within the bounds of the law, follow established procedures and operate in good faith when performing their duties. This presumption also relieves courts or reviewing bodies from conducting a deep review of every action or decision unless there is specific evidence to suggest wrongdoing, procedural lapses or irrational behaviour (See The Presumption of Regularity in Judicial Review of the Executive Branch, Harvard Law Review pg 2432. The idea is that in the absence of clear evidence to the contrary, administrative actions should be presumed to be regular, lawful and reasonable. 194. The effect of this principle is that the Court must examine the evidence to determine whether the Petitioner has established a specific legal defect or irregularity capable of vitiating the approvals. This conclusion is reinforced by the decision in Claire Kubochi Anami (supra), which the Respondent and the 2nd Interested Party relied upon, in which the Court held that: ”104. Finally, we reaffirm that remedies must also respect proportionality and legal certainty. Developers who obtained ELCL PET. E090 OF 2024 81

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permissions in good faith after multi-agency review should not be retroactively penalised absent demonstrated illegality. At the same time, pending projects remain subject to any new lawful general controls applicable, adopted through due process (subject of course to fair transition provisions embedded in the instruments themselves). This balances investment-backed expectations with environmental stewardship and community rights. 195. The burden of rebutting the presumption of legality, regularity and procedural propriety rests on the party alleging that the official acts were unlawful or irregular. The Court's role is to interrogate the legality of the decision against the applicable law and the evidence tendered. In the matter at hand, the Petitioner has not demonstrated that the County lacked jurisdiction to consider the application for change of user and development permission, or that, in granting the approvals, it breached a specific mandatory statutory requirement, acted fraudulently, illegally, unprocedurally, or committed a procedural impropriety. 196. The evidence shows that the applications were considered and approvals were issued subject to conditions. Importantly, where planning has acted within its jurisdiction, judicial intervention must be founded on a demonstrated error or illegality, which the Petitioner failed to establish. The ELCL PET. E090 OF 2024 82

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Petitioner contended that the change of use and the development permission breached the conditions set out in the approvals, rendering them null and void. The Court has not been shown any evidence that the approvals were procured by fraud, misrepresentation, concealment of material facts, want of jurisdiction, or disregard for a mandatory statutory procedure. This Court therefore finds that the Petitioner has failed to prove that the planning approvals were obtained or issued unlawfully. 197. The Respondent contends that comparable high-rise developments already exist in the vicinity, including a twenty-five-storey development known as Diplomat Residence. The 1st and 2nd Interested Parties echoed the Respondent's assertions. The 2nd Respondent produced photographs of high-rise buildings in the vicinity, while the 1st Interested Party produced a site report confirming the same. 198. Evidence of other high-rise developments in the neighbourhood does not, by itself, establish the legality of the impugned development. Such developments are relevant to the neighbourhood's factual character. The legality of the development permission must be assessed against the applicable planning framework and the parcel in question. The mere existence of other high-rise developments does not, by itself, establish the development's legality. 199. Although the Petitioner has shown that the development is at variance with the development parameters under Zone ELCL PET. E090 OF 2024 83

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13B of the Nairobi County Development Policy 2021, the Court finds that the Petitioner has not demonstrated the legal elements of illegality required to invalidate the approvals. Accordingly, the Petitioner has not established the allegation of zoning non-compliance. WHETHER THE PETITIONER’S CONSTITUTIONAL AND ENVIRONMENTAL RIGHTS WERE VIOLATED 200. The Petitioner alleges that its members' rights under Articles 42, 69 and 70 of the Constitution were violated. 201. Article 42 of the Constitution of Kenya provides for the right to a clean and healthy environment as follows: ‘Every person has the right to a clean and healthy environment, which includes the right— (a) to have the environment protected for the benefit of present and future generations through legislative and other measures, particularly those contemplated in Article 69; and (b) to have obligations relating to the environment fulfilled under Article 70.’ 202. The Petitioner contends that the proposed development violates its right to a clean and healthy environment. 203. In P K. Waweru vs Republic (2006) eKLR, the Court held that: ”The right to a clean and healthy environment is primary to all creatures including man; it is inherent from the act of creation, the reset restatement in the statutes and constitution of the world notwithstanding. This right and the ELCL PET. E090 OF 2024 84

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other human right s including civil, cultural, economic political and social rights are universal, interdependent and indivisible.” 204. The Petitioner capacity to challenged support the the existing proposed infrastructure's development. The Petitioner contends that, given its scale, density, proximity to the river, traffic generation, and anticipated pressure on existing water, sewerage, drainage, and road infrastructure, the proposed development threatens the environment and residents' quality of life. In this regard, the Petitioner relied on the Infrastructure Impact Assessment Study for the Aura Peponi Project, the Traffic Impact Assessment Report for the Aura Peponi Road Project, the Riparian Assessment Report for the Aura Peponi Project, and the Social Impact Assessment Report for the Aura Peponi Road Project, which showed that the sewerage, water, road, and drainage infrastructure was already operating beyond capacity and could not sustain the proposed density. 205. Regarding Road Infrastructure, the Petitioner contended that Peponi Road is only 6 metres wide and has no additional road reserve for expansion. The Petitioner's expert Report concluded that the development would significantly worsen existing congestion during peak hours. The Respondent and the interested Parties, on the other hand, relied on the Traffic Impact Assessment and the EIA Study Report, which addressed those concerns. The evidence shows that on 6th May 2024, the Kenya Urban Roads Authority undertook a ELCL PET. E090 OF 2024 85

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Traffic Impact Assessment, considered the affected junctions, and provided traffic management recommendations. 206. Regarding sewerage, the Respondent argued that the suit property was already connected to the Nairobi City Water and Sewerage Company's trunk sewer line. The Respondent further stated that it would implement measures for liquid and solid waste management before construction commenced, and that the proposed project incorporated such measures, including bioreactor technology. The Petitioner disputed that position and relied on the September 2024 Infrastructure Impact Assessment Study for the Aura Peponi Road project, which stated that the area was unsewered and that a private effluent treatment plant could not, by itself, substitute for the absence of an adequate public trunk sewer system capable of supporting a development of the proposed scale. 207. Regarding water supply, the Petitioner contended that the existing infrastructure was inadequate, as only 20% of the demand along Peponi Road was met by council-supplied water delivered through 2-inch pipes. It also raised concerns about the proposed borehole and whether the available water supply would be sufficient to sustain the intensified development. The Respondent and the 1st Interested Party stated that the EIA Study Report addressed these concerns and that the Water Resource Authority's approval included conditions intended to ensure that the development would not adversely affect water supply and waste management. ELCL PET. E090 OF 2024 86

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208. Regarding power supply, the Petitioner stated that power consumption was likely to strain the existing grid infrastructure and contribute to frequent outages. It was further contended that, because the development was 20 metres from Karura Forest and 2 metres from the Mathare River, it would heighten the risks of pollution, runoff, habitat disruption and ecological degradation. 209. Regarding drainage, the Respondent contends that the development permission was subject to conditions requiring, among other things, adequate drainage and sewerage systems. 210. The Petitioner relied on the Social Impact Assessment Report dated October 2024 to argue that the proposed development is incompatible with the existing low-density residential character of Peponi Road and would substantially interfere with residents' rights, quality of life and legitimate expectations. 211. The Court notes that the Petitioner raised legitimate concerns about the existing infrastructure's capacity to support the proposed development and has considered the evidence on each concern. The record shows that the Environmental Impact Assessment considered infrastructure impacts, including infrastructure, water drainage, and and power sewerage, supply, and road proposed mitigation measures to address these concerns. Similarly, the development permission imposed express conditions ELCL PET. E090 OF 2024 87

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relating to the maintenance of wayleave for water, sewer, power, drainage, and riparian reserves. 212. The Court must distinguish between evidence of potential pressure on infrastructure and cogent evidence establishing an actual threat to a constitutional right, which the Petitioner has failed to provide. 213. The evidence before the Court does not establish, to the required standard, that the approvals were granted without considering these matters or that the development cannot comply with the imposed mitigation measures. 214. The Petitioner alleged that the proposed development is close to a river and that its construction encroaches on a riparian reserve. 215. Black’s Law Dictionary, 8th Ed. (2004) defines “riparian” as follows: “Of, relating to, or located on the bank of a river or stream (or occasionally another body of water, such as a lake).” 216. Section 2 of the Water Act, 2016, defines a riparian reserve as: “the land adjacent to a watercourse, which is required to be reserved to protect the watercourse. 217. Further, the Environment Management and Coordination (Water Quality) Regulations, 2006 provide that no person shall cultivate or undertake development within a minimum of 6 meters and up to 30 meters from the highest water ELCL PET. E090 OF 2024 88

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mark of a river, stream, or water body, depending on its width. 218. Regulation 14(a) of the Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021, sets out the applicable standard for riparian reserves as follows. “For rivers, a minimum riparian reserve of ten metres or a reserve that is equal to the average full width of the river measured from the highest water mark, whichever is higher, but which shall not exceed thirty metres, on either side of the river shall be maintained: Provided that in the case of a floodplain, the riparian reserve may be higher as may be determined by the Water Regulation Authority” 219. The Petitioner contends that the proposed development infringes the thirty-metre riparian reserve because it lies less than three metres from the river. It further contends that, despite the Water Resources Authority demarcating a 10metre riparian reserve and the EIA License imposing a condition prohibiting construction within 10 metres of the river, the proposed perimeter wall lies within the reserve. In this regard, the Petitioner produced a Riparian Assessment Report, including photographs demonstrating the development's proximity to the river. ELCL PET. E090 OF 2024 89

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220. The Respondent and the 1st Interested Parties contend that the proposed project does not encroach on the riparian reserve. In this regard, they rely on the Riparian Marking and Pegging report prepared by the Water Resources Authority, which recommended maintaining the reserve. The 1 st Interested Party also relies on the conditions incorporated into the EIA Licence, which require the protection of the riparian reserve. The 1st Interested Party’s evidence is that the environmental assessment considered the riparian concern and that the project was subject to conditions intended to safeguard the water resource. The report dated 29th April 2024 found no threat to the river or the riparian reserve. 221. At this juncture, the Court is called upon to determine whether the proposed development encroaches on the riparian reserve. Although the photographs demonstrate the development's proximity to the river and raise a legitimate environmental concern, they do not, without technical evidence, establish the precise extent of the riparian reserve or conclusively demonstrate that the development has encroached upon the legally protected reserve. Determining whether land falls within a riparian reserve requires cogent evidence showing the precise distance between the property and the river's high-water mark. Usually, this process involves survey data, expert testimony, or official maps that define the riparian boundary. The Petitioner did not present cogent technical evidence to displace the Water Resources ELCL PET. E090 OF 2024 90

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Authority's pegging assessment or to show that the riparian boundary determination was erroneous. Based on the evidence on record, I find that the alleged riparian encroachment has not been proved. 222. The Petitioner invoked the precautionary principle. 223. The Environmental Management and Coordination Act defines the precautionary principle as the principle that where there are threats of damage to the environment, whether serious or irreversible, a lack of full scientific certainty should not be used as a reason to postpone costeffective measures to prevent environmental degradation. 224. The precautionary principle permits preventive intervention where a credible threat of serious environmental harm has been demonstrated. However, it does not dispense with the requirement for evidence. 225. The Petitioner invoked the precautionary principle on the basis of alleged risks to infrastructure drainage, sewerage, traffic, water surrounding supply, the riparian environment. Counsel reserve, and submitted the that infrastructure overload, drainage failure, sewerage collapse, traffic congestion, riparian degradation, public safety risks, and environmental overload offend the principle of sustainable development. The Petitioner drew the court’s attention to the partial collapse of a high-rise project associated with the same developer and consultants to demonstrate that the concerns are not speculative, as they ELCL PET. E090 OF 2024 91

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relate to safety risks arising from inadequate regulatory oversight and high-density construction. 226. Although the evidence establishes legitimate concerns about the potential pressure the proposed development may place on the existing infrastructure and environment, the Petitioner has not presented cogent evidence that the proposed development poses a serious or irreversible threat, or that the mitigation measures cannot address the identified risks. The infrastructure concerns raised by the Petitioner do not warrant the application of the precautionary principle. 227. I find that the evidence, considered as a whole, establishes potential environmental and infrastructural impacts that require ongoing regulatory oversight; however, it does not demonstrate that the development, as currently structured, contravenes Article 42 of the Constitution. 228. The Court must also determine whether the authorities failed to consider those matters or whether the development poses a demonstrable unlawful threat to constitutional and environmental rights. 229. Article 69(1) of the Constitution sets out obligations for the State and non-State actors regarding the environment, while Article 69(2) requires every person and entity to cooperate with the State and other persons to protect the environment. Article 69 of the Constitution provides as follows: ’(1) The State shall— (a) ensure sustainable exploitation, utilisation, management and ELCL PET. E090 OF 2024 92

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conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits; (b) work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya; (c) protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities; (d) encourage public participation in the management, protection and conservation of the environment; establish (e) protect genetic resources and biological diversity; (f) systems of assessment, environmental environmental impact audit and monitoring of the environment; (g) eliminate processes and activities that are likely to endanger the environment; and (h) utilise the environment and natural resources for the benefit of the people of Kenya. (2) Every person has a duty to cooperate with State organs and other persons to protect and conserve the ecologically environment sustainable and ensure development and use of natural resources.’ 230. The 1st Interested Party is the principal instrument of Government for implementing all policies relating to the environment and also exercises general supervision and ELCL PET. E090 OF 2024 93

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coordination of all matters touching on the environment on behalf of the State. Therefore, the State's obligations under Article 69 of the Constitution are principally those of the 1st Interested Party, environmental processes including audit and and activities establishing monitoring that may systems and of eliminating endanger the environment. 231. The Petitioner raised legitimate environmental concerns regarding traffic, water supply, sewerage, drainage, waste management, and the overall environmental impact of the proposed development. However, there is no evidence that the Interested Parties failed to undertake the requisite environmental assessment or acted in disregard of the Constitution. 232. The Court has found that the public participation process was carried out, relevant agencies were consulted, objections were received and considered, and conditions were imposed to mitigate and manage the identified environmental risks. The Court therefore finds that the Petitioner has not demonstrated that the interested parties failed to discharge their obligations under Article 69. 233. Similarly, I find that the Petitioner has not demonstrated a violation or threatened violation of the right to a clean and healthy environment sufficient to invoke Article 70 of the Constitution. 234. However, this finding does not absolve the Respondent of its obligation to comply with the conditions imposed by the ELCL PET. E090 OF 2024 94

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Interested parties. If a subsequent technical assessment establishes that the available water, sewerage, or drainage infrastructure is inadequate, or that the mitigation measures are ineffective, the relevant regulatory authorities remain under a continuing duty to take any lawful corrective measures necessary to prevent environmental harm. 235. The Petitioner alleges a violation of Article 47 on the grounds that the approvals were unlawful, irrational, unreasonable and were issued unprocedurally. 236. Article 47 (1) of the Constitution provides that: (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair. 237. The above provision is echoed in Article 50(1) of the Constitution and Section 4(3)(b) of the Fair Administrative Action Act. These provisions make it clear that the tribunal or authority entrusted with the mandate to make decisions must act fairly. Procedural fairness is a constitutional requirement in administrative actions. 238. The right to fair administrative action cannot be gainsaid. In Judicial Service Commission v Mbalu Mutava & Another (2015) eKLR, the Court of Appeal held that: “Article 47(1) transformative marks an important development and of administrative justice for it not only lays a constitutional foundation for control of the ELCL PET. E090 OF 2024 95

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powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reflection of the national values in Article 10, such as the rule of law, human dignity, social justice, transparency and administrative actions State and organs good governance, accountability. of public other The officers. administrative bodies are now subjected to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under common law developed.” 239. The Petitioner contends that the Interested Parties violated its members' rights under Article 47 by approving the development despite its contravention of the applicable zoning framework and disregard for the statutory obligations imposed by the PLUPA; that the decision was irrational, as the Interested Parties ignored overwhelming evidence of infrastructure incompatibility, limitations, environmental cumulative impact risks, concerns, zoning and deficiencies in public participation; and that the approvals lacked a demonstrable evidentiary basis. 240. An administrative decision is not rendered unfair merely because it is adverse to the person who made the representation. The court must determine whether the ELCL PET. E090 OF 2024 96

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decision-maker acted within jurisdiction, considered relevant matters, followed the prescribed procedure, and afforded affected persons a reasonable opportunity to participate. 241. In the matter at hand, the evidence shows that the 2 nd Interested Party issued the change-of-use approval and development permission in accordance with the planning process, while the 1st Interested Party undertook an Environmental Impact Assessment, including public notices, consultations with the lead agency, consideration of objections, and site inspections. 242. The Petitioner has not shown that the decision-makers acted unlawfully or denied the Petitioner a reasonable opportunity to participate. Nor has the Petitioner shown that the authorities failed to consider the material concerns raised. The 2nd Interested Party’s subsequent suspension of the project demonstrates that it retained regulatory oversight and was prepared to respond to emerging concerns. The fact that the Interested Parties ultimately reached a decision contrary to the Petitioner’s position does not, by itself, constitute a violation of Article 47 of the Constitution. 243. This Court therefore finds that the Petitioner has failed to establish the alleged violation of Article 47. WHETHER THE PETITIONER IS ENTITLED TO THE ORDERS SOUGHT. 244. The Petitioner seeks declarations of constitutional violations. Having found that the Petitioner has not proved violations of ELCL PET. E090 OF 2024 97

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Articles 42, 47, 69 or 70 of the Constitution, the Petitioner's prayer therefore fails. 245. The prayer to quash the EIA Licence fails because the Petitioner has not shown that the licence is unlawful or that any illegality, procedural impropriety, or irrationality is sufficient to render it invalid. 246. The prayer for orders compelling enforcement of zoning controls in the manner sought fails because the court has not found the approvals unlawful. The prayer for general damages for violation of Article 47 fails because the Petitioners have not established a violation. 247. The Petitioners sought an order of mandamus compelling the Respondent to environmental halt and development social impact pending a full assessment and comprehensive public consultation. 248. Mandamus is a public law remedy used to compel the performance of a public duty imposed by law. In the present case, the Interested Parties exercised their statutory functions. The Petitioner has not demonstrated that the public authorities have refused or failed to perform a specific statutory duty they are legally obliged to perform. The Court has not found a demonstrated failure by the Interested Parties to perform a statutory duty that would warrant such an order. The Petitioner has not demonstrated that the Respondent has a statutory duty to undertake a fresh environmental impact assessment or to conduct a further comprehensive public participation as sought. ELCL PET. E090 OF 2024 98

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249. The Petitioner seeks an injunction to restrain the Respondent from continuing construction on the suit property until the Respondent addresses all concerns raised by the Petitioner. The Petitioner has not established a violation, nor has it sufficiently demonstrated a threatened violation of Articles 42, 43A, and 70 of the Constitution. The Petitioner has not shown that the planning and environmental approvals are unlawful. Accordingly, the foundation for the injunction has not been established. The prayer for an injunction restraining further construction therefore fails. 250. In the end, this Court finds that the Petition dated 31 st October 2024 is not merited and is hereby dismissed. Each party shall bear its own costs. JUDGMENT SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 18TH DAY OF SEPTEMBER, 2026. ……………………………………. HON. T. MURIGI JUDGE IN THE PRESENCE OF: Ms Impano for the Petitioner Kisigwa holding brief for Dennis Mosota for the Respondent Ms Ashasha holding brief for Bake for the 2 nd Interested Party ELCL PET. E090 OF 2024 99

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Vena – Court assistant ELCL PET. E090 OF 2024 100

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