Kariuki & 2 others (Suing for and on behalf of Njumbi Road Residents Association) v Nairobi City County Government & 6 others

RULING Background 1. Vide a Notice of Motion dated 24th April, 2026, the Petitioners/ Applicants seek the following reliefs: i. Pending the hearing and determination of this Petition, a conservatory order does issue restraining the 1st, 2nd and 3rd Respondents from considering and or processing any application for development permission on properties located within the connes of Njumbi Road Residents Association including Land Reference Nos. 12/79;3734/495 situated at No.33 Njumbi Road, Lavington and owned by the 4th Respondent; and Land Reference Nos. Nairobi/Block 12/89 & Nairobi/Block 12/90, situated on Njumbi Road, Lavington and owned by the 5th Respondent, save for the applications for developments that conform with the provisions of the areas classied as Zone 5D in the Nairobi City County Development Control Policy, 2021. ii. Pending the hearing and determination of this Petition, a conservatory order does issue restraining the 4th Respondent acting by themselves, their servants, agents, appointed attorneys, contractors or by any other person acting on their behalf howsoever from constructing or continuing with any construction of multiple, multi-level/high rise nonsingle dwelling development and or otherwise continuing with the construction, excavation, development, building and or other construction activities on the property known as Land Reference Nos. 12/79;3734/495 situated at No.33 Njumbi Road, Lavington, Nairobi County and owned by the 4th Respondent. iii. Pending the hearing and determination of this Petition, a conservatory order does issue restraining the 5th Respondent acting by themselves, their servants, agents, appointed attorneys, contractors or by any other person acting on their behalf howsoever from constructing or continuing with any construction of multiple, multi-level/high rise nonsingle dwelling development and or otherwise continuing with the construction, excavation, development, building and or other construction activities on the Property known as Land Reference Nos. Nairobi/Block 12/89 & Nairobi/Block 12/90, situated on Njumbi Road, Lavington. iv. The Ocer Commanding Muthangari Police Station to ensure enforcement and compliance with the above orders. v. Cost of this application be provided for. 2. The Motion is based on the grounds on the face thereof and supported by the adavit of Gatonye Kariuki, the Chairman of Njumbi Road Residents' Association in Lavington Estate, the Petitioner herein of an even date. 3. He deponed that, on behalf of the Njumbi Road Residents' Association and together with the other ocials of the Association, they seek to challenge the constitutionality and legality of the 1st, 2nd and 3rd Respondents’ unilateral and haphazard decision to approve and permit the construction of multiple multi-level high-rise developments within Zone 5D, within which Njumbi Road in Lavington falls contrary to the provisions of the Nairobi City County Development Control Policy, 2021. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 2

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4. Further, the Petition challenges the decision of the 4th and 5th Respondents to undertake multiple, multi-level high-rise, non-single dwelling developments immediately adjacent to the Petitioners' single dwelling residential homes without engaging the Petitioners or considering their views and concerns regarding the impact of the developments on their residences and constitutional rights. 5. In particular, he stated, the 4th Respondent had commenced the construction of six non-single dwelling, high-rise units on a 0.75-acre parcel of land, whereas the Development Control Policy permits a maximum of three single dwelling units on a parcel of that size. Likewise, the 5th Respondent had commenced the construction of sixteen non-single dwelling, high-rise units on a 1.8-acre parcel of land, despite the Policy permitting a maximum of six single dwelling units and that all developments within Zone 5D are expected to be single dwelling residential houses. 6. It was his position that the Nairobi City County Government's decision to approve the aforesaid developments, has resulted in, and continues to occasion, incongruous developments within the Njumbi Road residential area. 7. He explained that Lavington Estate, initially developed as a residential neighborhood for the white settlers, has been known for its serene, suburban green character, abundant ora, tree-lined streets, and well-maintained gardens and parks; that this natural beauty and numerous green spaces inspired Lavington Estate to be christened Lavington Green, distinguishing it as a tranquil and picturesque area away from the city's hustle and bustle and that everyone who invested therein including themselves did so with the legitimate expectation that their homes would enjoy this characteristic of Lavington Green Estate. 8. The impugned developments, he explained, threaten the Petitioners' constitutional rights by overburdening existing infrastructure, including roads, sewerage, drainage, water and electricity systems, obstructing natural light and air circulation, increasing pollution and ooding risks, and interfering with communication systems. 9. The 1st Petitioner further stated that the developments have diminished the value and marketability of the Petitioners' properties, with prospective purchasers expressing reservations about acquiring property within the neighborhood. He also contended that the increased population density would compromise the security, privacy and quiet enjoyment of the Petitioners' homes. 10. He deponed that the approvals are inconsistent with Section 55 of the Physical and Land Use Planning Act, 2019(PLUPA) whose objectives include ensuring orderly physical development, environmental protection, public health and safety, and public participation. He further stated that paragraphs 2 and 5 of the Third Schedule to the PLUPA require the County Government to consider applicable planning policies, zoning regulations, neighborhood character, infrastructure capacity, public safety and the impact of proposed developments before granting development approvals or approving changes of user. According to him, these statutory requirements were ignored. 11. Further, the 1st Petitioner deponed that the Respondents failed to comply with the mandatory public participation requirements under Section 115 of the County Governments Act, 2012, which requires public participation in county planning processes, and Section 4 of the Nairobi City County Public Participation Act, 2015, which guarantees aected communities the right to be consulted, to receive adequate information, and to have their views taken into account before decisions aecting them are made. 12. Despite these statutory obligations, it was deposed, the 4th and 5th Respondents commenced and rapidly progressed with the impugned developments without engaging either the Petitioners or the Njumbi Road Residents' Association. He stated that, in an eort to ascertain the nature of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 3

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developments and the approvals granted, the Association wrote to the 4th Respondent on 16th March 2026, requesting copies of all the relevant approvals and development documents and asking that construction be suspended pending meaningful engagement with the residents. According to him, the letter, received no response, and construction continued unabated. 13. With regard to the 4th Respondent's development, he averred that the approved six-unit development exceeds both the permissible density and ground coverage under the Development Control Policy and is intended to rise beyond the scale contemplated for single dwelling developments. 14. Regarding the 5th Respondent's development, he deponed that the Petitioners lodged an objection with the Nairobi City County Government upon commencement of construction in 2025. He stated that, by a letter dated 25th March 2025, the County Government revoked the architectural approval and directed the 5th Respondent to revise the development to comply with the permissible number of units and to obtain a no-objection from the residents' association through public participation. He added that the County Government expressly stated that the revocation was intended to preserve the residential character of the area and ensure compliance with the applicable legal framework. 15. Despite the revocation, the County Government subsequently permitted the 5th Respondent to continue with the development without requiring compliance with the conditions contained in the revocation letter. He noted that whereas construction had only reached the rst oor at the time of revocation, it has since progressed to the fourth oor. 16. Mr. Kariuki further deponed that the Petitioners also challenged the development before the National Environment Tribunal; that although the appeal initially succeeded, and the license issued to the 5th Respondent revoked, the decision was subsequently reviewed and set aside on the ground that the appeal had been led outside the prescribed statutory period and that the Petitioners have appealed against that decision. 17. He maintained that the County Government's conduct in issuing approvals contrary to its own Development Control Policy, revoking approvals and thereafter permitting construction to continue without compliance with the stated conditions or meaningful public participation, was unlawful and has facilitated incompatible developments within the Petitioners' neighborhood. 18. Finally, the 1st Petitioner maintained that the impugned approvals are unconstitutional, unlawful and discriminatory as they violate the Nairobi City County Development Control Policy, 2021, the Physical and Land Use Planning Act, the County Governments Act and the Nairobi City County Public Participation Act. He contended that the developments deny the Petitioners the benets enjoyed by other residents within Zones 5C and 5D, including preservation of the low-density residential character of the neighborhood, adequate infrastructure, privacy, security and the economic value of their properties. 19. The 1st and 3rd Respondents did not respond to the Motion. The 4th Respondent led a notice of preliminary objection dated 10th May, 2026 contending that: i. The Petitioners have failed to exhaust the available remedies under the Physical and Land Use Planning Act and Environment Management and Coordination Act. ii. The Petition is an abuse of process owing to the doctrine of constitutional avoidance and exhaustion of available remedies. iii. The jurisdiction of the court has been invoked prematurely. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 4

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20. The 4th Respondent also led a replying adavit dated 10th May 2026, sworn by its Director, Suleiman Abdullahi Omar. He deponed that the 4th Respondent is the registered proprietor of Title No. Nairobi/Block 12/79 (formerly L.R. No. 3734/495), situated along Njumbi Road, Lavington, Nairobi County. He averred that Article 40 of the Constitution guarantees the right to property, including the right of the 4th Respondent to develop and enjoy its property upon obtaining the requisite statutory approvals and licenses. 21. He stated that the impugned construction commenced on 2nd February 2026, only after the 4th Respondent had obtained all the necessary approvals and licenses from the relevant authorities and had undertaken public participation in accordance with the law. He further asserted that the Petitioners never objected to the approvals issued to the 4th Respondent but only challenged the approvals granted to the 5th Respondent. According to him, the Petitioners had also failed to explain why they instituted the present proceedings almost three months after construction had commenced. 22. According to Mr. Omar, the Petitioners have failed to disclose that the 4th Respondent displayed all the requisite approvals and licenses by the relevant authorities and displayed the same on a public notice board at the project site, which identied the developer, contractor, architect, structural engineer, the Nairobi City County approval number, the NEMA licence number, the National Construction Authority registration number, the land reference number and the nature of the proposed development. 23. Mr. Omar deponed that on 12th February 2025, the 4th Respondent, through its planner, Solomon Kyeni, published a public notice in The Standard newspaper notifying the public of its application for change of user from a single dwelling unit to multi-dwelling town houses and invited objections or comments within fourteen days; that a similar notice was erected on the project site on 13th February 2025 and that despite the publication of the notices, neither the Petitioners nor any other member of the public lodged any objection or submitted comments within the prescribed period, or at all. 24. It was deposed that the 4th Respondent prepared a Planning Brief dated 13th February 2025, through Space Planners Limited in support of its application for change of user and that the Planning Brief analyzed the site characteristics, the applicable legal and policy framework, the proposed development, environmental impacts, mitigation measures, public participation undertaken and the justication for the proposed development. 25. He averred that the application for change of user was approved by the Urban Planning Technical Committee on 10th April 2025, subject to specied conditions, following which the County Executive Committee Member for Built Environment and Urban Planning issued the approval notice and that the public participation undertaken complied with Rule 15(2) of the Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021, and Sections 58(7) and (8) of the PLUPA. 26. He explained that the 4th Respondent also complied with Rule 4 of the Physical and Land Use Planning (General Development Permission and Control) Regulations by applying to the planning authority for the change of user and that the user of the land also conforms to the approved plans as the 4th Respondent is erecting Six (6) multi dwelling units (town houses) on the property. 27. It was deposed that in compliance with the condition contained in the notication of approval of the change of user application dated 10th April 2025, the 4th Respondent submitted its buildings plans and requested for permission to develop six (6) town houses on the suit property and that the buildings were then approved and permission to develop six (6) town houses on the property were approved by the Urban Planning Technical Committee on 24th July 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 5

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28. He maintained that the approvals granted to the 4th Respondent were consistent with similar developments already existing along Njumbi Road, including Njumbi Villas and Chalbi Casa Villas, as well as comparable developments within the wider Lavington area like Chalbi Drive, Convent Drive, Kabarsiran Avenue, Apple Cross Road, Muhoya Avenue, Mbabane Road, Elmolo Drive, Maji Mazuri Road, Owashika Road, Isaac Gathanju Close, Ndoto Road, Mugumo Road, Mageta Road and Muthangari Road. 29. Apart from the public participation requirements under PLUPA, he stated, public participation was also undertaken as part of the Environmental Impact Assessment process; that a public notice dated 3rd September 2025, inviting members of the public to a consultation meeting scheduled for 10th September 2025 was displayed at the project site and that the public consultation meeting was held on 10th September 2025 between 1730hrs and 1830hrs and attended by twenty-one stakeholders, including representatives of the Petitioners, the Njumbi Road Residents Association, members of the public, National Government Administration Ocers and project consultants. 30. Mr. Omar deponed that during the meeting, the project consultants explained the proposed development, its anticipated environmental and social impacts, mitigation measures, and the applicable approval process. They also responded to concerns raised by residents regarding zoning, plot ratio, public participation, development approvals, the Environmental Impact Assessment process and avenues for lodging objections. He further stated that, although twenty-one stakeholders attended the meeting, only seven signed the attendance register. 31. It is the 4th Respondent’s case that the Environmental Impact Assessment Project Report was thereafter prepared by Space Planners Limited and submitted to NEMA on 1st October 2025 and that the report addressed the project description, applicable legal framework, environmental impacts, mitigation measures, public participation, environmental management plan and project alternatives. 32. He deponed that the proposed project constituted a medium-risk development under the Second Schedule to EMCA and, consequently, the 4th Respondent was only required to prepare and submit an Environmental Impact Assessment Project Report, which it duly did through qualied experts from Space Planners Limited and that, upon reviewing the report and satisfying itself that the applicable statutory requirements, including adequate public participation, had been met, NEMA issued an Environmental Impact Assessment License on 13th November 2025, subject to specied conditions, in accordance with Sections 58 and 63 of EMCA and the Environmental (Impact Assessment and Audit) Regulations. 33. He noted that the Petitioners never challenged either the approval for change of user dated 10th April 2025 or the development approval dated 24th July 2025 before the County Physical and Land Use Planning Liaison Committee as provided under Sections 61 and 78 of the PLUPA. 34. Similarly, he averred that any challenge to the Environmental Impact Assessment Licence ought rst to have been lodged before the National Environment Tribunal pursuant to Sections 129 and 130 of EMCA before being escalated to this court and that the present Petition oends the doctrine of exhaustion as codied under Section 9(2) of the Fair Administrative Action Act and amounted to an abuse of the court process. 35. With regard to the environmental concerns raised by the Petitioners, Mr. Omar deponed that any site clearance undertaken was necessary for construction and that all potential environmental impacts were identied and addressed through the approved Environmental Impact Assessment Report and the accompanying mitigation measures. He denied that the development would exceed the approved building height or otherwise depart from the approved plans. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 6

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36. He further contended that the Petitioners had failed to establish any violation of their constitutional rights. According to him, the approved development would neither interfere with the Petitioners' privacy nor obstruct natural light, as each townhouse would consist only of a ground oor, rst oor and attic oor and that similar developments already exist adjacent to the property. 37. It was opined by the 4th Respondent’s Director that the Planning Brief submitted in support of the application adequately addressed infrastructure concerns by providing for connection to Nairobi City Water and Sewerage Company and Kenya Power, appropriate storm water management, landscaping and private waste collection services. 38. Mr. Omar also referred to the Environmental Expert Report produced by the Petitioners, contending that it related to the 5th Respondent's development rather than that of the 4th Respondent. He further observed that the report acknowledged that the area was already substantially developed and that much of the vegetation was man-made and capable of replacement through landscaping. 39. In response to the Motion, the 5th Respondent herein led a Preliminary Objection dated 10th May, 2026 premised on the contentions that: i. The Petition and Application oend the provisions of Section 6 of the Civil Procedure Act as the Petitioners have led an Appeal dated 13/01/2026 namely Nairobi ELCEPA E001 OF 2026, namely Gatonye Kariuki, Mumbi Gichuhi & Peter Ritho As Ocials of Njumbi Road Residents Association vs National Environment Management Authority and ZFRC Holdings Limited, which appeal touches on the same subject matter and substantially similar issues as those raised in the present Petition and Application. The Appeal has been admitted for hearing and is scheduled for Judgment on 09/06/2026. ii. The Application dated 24/04/2026 oends the doctrine of res judicata as it raises matters that have already been determined by the Environment and Land Court following the ling, hearing and determination of a Notice of Motion Application dated 16/03/2026 in Nairobi ELCEPA E001 OF 2026, Gatonye Kariuki, Mumbi Gichuhi & Peter Ritho as Ocials of Njumbi Road Residents Association v. National Environment Management Authority and ZFRC Holdings Limited which was determined on 01/04/2026. iii. The Petition and Application herein are incompetent, misconceived and an abuse of the Court process and allowing the Petition and the Application to proceed would occasion parallel proceedings and may result in conicting decisions by Courts of concurrent jurisdiction. iv. The Petitioners/Applicants are improperly inviting this Honourable Court to reopen and/or determine issues already placed before the Court for adjudication in Nairobi ELCEPA E001 OF 2026, namely Gatonye Kariuki, Mumbi Gichuhi & Peter Ritho as Ocials of Njumbi Road Residents Association vs National Environment Management Authority and ZFRC Holdings Limited. v. The Petition and Application are therefore frivolous, vexatious and an abuse of the due process of the Court and ought to be struck out with costs. 40. The 5th Respondent also swore a replying adavit through its operations manager, Joseph Mwanthi Mutuku, on 20th May, 2026. He deponed that the Motion is misconceived, incompetent and an abuse of the court process. 41. He contended that the Petitioners failed to demonstrate the existence of the alleged Njumbi Road Residents Association or produce any authority authorizing it to institute the proceedings on behalf https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 7

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of the residents. He further averred that the Association was neither a legitimate nor suitable representative of the residents and property owners of Njumbi Road and had merely been established to intimidate the 4th and 5th Respondents and obstruct the 5th Respondent's development. 42. He further averred that the issues raised in the Petition and the motion had already been litigated before the National Environmental Tribunal in NET Cause No. 7 of 2025, and that an appeal arising therefrom, being Nairobi ELCEPA E001 of 2026, is pending determination before the Environment and Land Court. 43. The deponent maintained that the 5th Respondent had at all times acted lawfully and within the connes of the law, having obtained all requisite approvals from the relevant statutory authorities, including the National Environment Management Authority (NEMA) and the Nairobi City County Government. 44. He denied that the Petitioners' constitutional rights to privacy, safety, security or a clean and healthy environment had been infringed or threatened. He further contended that the allegations that the development will overburden public amenities is speculative, unsupported by evidence and improperly seeks to restrict the lawful use of private property. 45. He further deponed that environmental impacts had already been comprehensively assessed under the statutory Environmental Impact Assessment process undertaken by licensed experts and approved by NEMA. He denied that the development would diminish the value of neighbouring properties, asserting that the Petitioners had failed to produce any valuation report or market analysis in support of that allegation. 46. On the contrary, he maintained that the townhouses had ready purchasers and that the development was likely to enhance surrounding property values through increased demand, improved amenities and the productive utilization of the land. 47. The deponent further averred that the construction was nearing completion and that halting the project at this stage will occasion substantial nancial prejudice to the 5th Respondent. He explained that the development complied with planning requirements, the two parcels having been consolidated, and claried that one of the four levels constituted a basement, thereby preserving the requisite green coverage. 48. He deponed that the Petitioners had long been aware of the approvals granted and the progress of construction but had elected only to challenge the NEMA licence, thereby rendering them guilty of laches. He maintained that no law required the 4th or 5th Respondents to consult the Njumbi Road Residents Association before undertaking the development and that the allegations against the 5th Respondent were generalized, speculative and unsupported by credible evidence. 49. The Petitioners swore a further adavit dated the 19th June, 2026. Mr. Kariuki reiterated his assertions set out in the adavit in support of the Motion and deponed that that 4th Respondent’s assertion that they have breached the doctrine of exhaustion is misplaced; that Articles 22 and 70 of the Constitution as read with Section 13 of the Environment and Land Court Act clothe this court with jurisdiction to enforce environmental rights and that in any event, the County Physical and Land Use Planning Liaison Committee that is alleged to be the proper rst port of call has yet to be established. 50. He deponed that the rights under Article 40 of the Constitution are not absolute and are expressly limited by Article 42 which guarantees every Kenyan the right to a clean and healthy environment. He reiterated that Zone 5D is designated for single dwelling units and each house must not occupy more than 50% of the quarter acre compound which was admittedly done. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 8

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51. Further, he stated, the public notices and consultations referenced were cosmetic gestures and not genuine participation; that the minutes referenced by the 4th Respondent misrepresent the objections as mere concerns and that the change of use application deliberately concealed the number of units to obtain the approvals without question rendering them void. 52. He explained that the NET judgement of 31st October 2025 revoked the EIA license for lack of public participation; that the subsequent review ruling of 15th December 2025, was contested and appealed; that the judgment of 9th June 2026 remains under challenge and has not attained nality having not addressed the constitutional issues raised in this Petition and that as such, it is neither res judicata nor sub judice. 53. He further deponed that, contrary to the 5th Respondent's assertions, the impugned development has already begun to strain the existing infrastructure within Njumbi Road and its environs. He averred that the area already experiences inadequate electricity supply, with power rationing occurring up to three times a week because the existing grid is unable to meet current demand. He further stated that the neighborhood also suers from inadequate sewerage infrastructure and persistent water shortages, with residents at times going for several days without piped water. 54. The Petitioner maintained that in the circumstances, the precautionary principle enshrined under Article 70 of the Constitution requires the court to prevent credible threats of environmental harm before they materialize and that the objections raised by the 4th and 5th Respondents are frivolous, vexatious, and do not raise any pure points of law, and ought to be dismissed. Submissions 55. The Petitioners led their written submissions dated 19th June, 2026. Counsel submitted that the Petitioners have satised the threshold for the grant of conservatory orders by demonstrating that the developments undertaken by the 4th and 5th Respondents were in blatant violation of the Nairobi City County Development Control Policy, 2021. 56. It was argued that the 4th Respondent had constructed six townhouses on 0.75 acres in Zone 5D, where only single-dwelling units on a minimum of 0.25 acres were permitted, while the 5th Respondent had developed sixteen units on 1.8 acres despite the zoning policy permitting a maximum of seven units. 57. Counsel maintained that these facts were drawn from the County's own policy framework and demonstrated a clear infringement of the Petitioners' rights. Reliance was placed on Giella vs Cassman Brown [1973] EA 358 for the proposition that a prima facie case is established where an applicant demonstrates an infringement of a right. 58. Counsel further submitted that the Nairobi City County Government had, by its letter dated 25th March, 2025, revoked the development approval and expressly required compliance with zoning requirements and consultation with neighbouring residents before any further approvals could issue. 59. It was contended that the Respondents disregarded these conditions and proceeded with construction, thereby rendering the approvals constitutionally and legally defective. Counsel argued that this conduct oended Section 55 of the Physical and Land Use Planning Act, which requires orderly development, environmental protection and meaningful public participation. Cited in support was British American Tobacco vs Cabinet Secretary for Health & Others [2019] KESC 15. 60. On the issue of environmental and infrastructural impact, it was argued that documentary evidence, including Kenya Power rationing notices, evidence of water shortages necessitating reliance on bowsers, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 9

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and recurring sewer overows, demonstrated that the infrastructure serving the area is already overstretched. 61. According to counsel, permitting sixteen high-rise units within a low-density residential zone will irreparably burden existing amenities, compromise the Petitioners' privacy and fundamentally alter the residential character of Lavington. Reliance was placed on Kenya Airports Authority vs Mitu-Bell Welfare Society [2021] KESC 34 for the proposition that development should not undermine socioeconomic rights. 62. It was submitted that commercial considerations cannot supersede constitutional guarantees under Articles 42 and 43 of the Constitution. Counsel argued that the Petitioner’s right to a clean and healthy environment is inviolable and cannot be subordinated to economic convenience. 63. Counsel submitted that the objection based on the doctrine of exhaustion under the EMCA and PLUPA is without merit. It was argued that Articles 22 and 70 of the Constitution confer upon this court direct jurisdiction to enforce environmental rights and that constitutional claims cannot be defeated by statutory dispute resolution mechanisms. 64. Reliance was placed on Save Lamu & Others vs National Environment Management Authority (NEMA) [2019] eKLR, where the court held that constitutional claims cannot be ousted by statutory procedures where fundamental rights are directly threatened. Counsel maintained that the petition invoked Articles 42 and 70 of the Constitution and therefore properly invoked the court's original constitutional jurisdiction. 65. Counsel further submitted that the 5th Respondent's reliance on the doctrines of res judicata and sub judice was equally misplaced. It was argued that the annexed documents demonstrated that appeals arising from the National Environmental Tribunal proceedings remained pending and that the issues raised therein related solely to statutory licensing under EMCA. 66. Counsel submitted that the present Petition seeks broader constitutional declarations concerning zoning, public participation, privacy and environmental rights, which could not be determined in the Tribunal proceedings. Reliance was placed on John Florence Maritime Services Ltd vs Cabinet Secretary for Transport & Infrastructure [2015] eKLR, where the court held that the doctrine of res judicata does not apply where the causes of action and the reliefs sought are distinct. 67. Regarding the challenge to the Petitioners' standing, counsel submitted that the Association is lawfully incorporated and duly mandated to protect the interests of residents aected by unlawful developments. 68. Counsel submitted that Article 22(2)(b) of the Constitution expressly permits associations to institute proceedings on behalf of aected persons and relied on Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR, where the court armed the standing of associations litigating in the public interest. 69. The 4th Respondent led submissions dated 14th July 2026. Counsel submitted that the Petitioners had failed to satisfy the principles governing the grant of conservatory orders. 70. It was urged that the Petitioners had failed to exhaust the statutory dispute resolution mechanisms available to them and that the Petition oended the doctrine of constitutional avoidance. It was argued that constitutional adjudication should be a measure of last resort where a dispute is capable of resolution through statutory or other established mechanisms. Reliance was placed on Section 9(2) of the Fair Administrative Action Act, Section 61(3) of PLUPA, and Section 129 of EMCA. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 10

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71. On the allegation that there had been no public participation before issuance of the approvals and the EIA Licence, counsel submitted that the evidence demonstrated otherwise; that there had been no demonstration of anything to the contrary; that, pursuant to the Second Schedule to EMCA, the 4th Respondent was required to submit a project report and that the requisite report was prepared and submitted to NEMA and addressed the relevant statutory considerations, including public participation, the views of persons likely to be aected, the feedback given by the 4th Respondent and measures proposed to address adverse environmental eects. 72. Counsel consequently invoked the presumption of regularity, arguing that in the absence of evidence demonstrating irregularity in the issuance of the approvals and the EIA Licence, the actions of the relevant public authorities ought to be presumed lawful and regular. Reliance was placed on Export Processing Zone Authority & 10 Others (Suing on their own behalf and on behalf of all residents of Owino-Uhuru Village in Mikindani, Changamwe Area, Mombasa) vs National Environment Management Authority & 3 Others [2024] KESC 75 (KLR). 73. The 5th Respondent led written submissions dated 16th July 2026. Counsel submitted that the 5th Respondent’s preliminary objection satised the test in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696 being premised on undisputed facts, to wit, the existence of Nairobi ELCEPA No. E001 of 2026 against the 1st Interested Party and the 5th Respondent concerning the same development and NEMA licence. Accordingly, whether the subsequent proceedings are barred under Sections 6 and 7 of the Civil Procedure Act is a pure question of law capable of determination at the preliminary stage. 74. Counsel distinguished Save Lamu & 5 Others vs National Environmental Management Authority & another [2019] eKLR, contending that the objection was not founded on failure to exhaust statutory remedies, but on the Petitioners’ decision to pursue a second suit after invoking the statutory process before the Tribunal and on appeal. 75. It was asserted that the Petitioners have not established a prima facie case for conservatory relief, as their allegations of zoning violations, infrastructural strain and diminution in property values are unsupported by expert or ocial evidence. Analysis and Determination 76. 77. Having considered the pleadings and submissions, the issues that arise for determination are: i. Whether the Preliminary Objections are competent and if so, merited? And if not? ii. Whether the Petitioners have met the threshold for the grant of conservatory orders? The law with respect to preliminary objections is now well settled. Law JA in Mukisa Biscuits Manufacturing Co. Ltd. vs. West End Distributors (1969) EA 696 at 700 stated that: “ …a ‘preliminary objection’ consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 11

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78. Newbold, P further held: “ A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing butt unnecessarily increases costs and, on occasion, confuse the issues. This improper practice should stop.” 79. The Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shahbal & 2 Others [2014] eKLR re-armed the principles as set out in the Mukisa Case(supra) stating: “ A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 80. It is apparent from the foregoing that a preliminary objection should raise pure points of law, argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or if the court is called upon to exercise judicial discretion. Further, it should be capable of disposing o the suit. 81. Vide their respective objections, the 4th and 5th Respondents challenge the competence of both the Petition and the Motion. In essence, they contend that the Petitioners lack the requisite locus standi to institute these proceedings; that the Petition oends the doctrine of exhaustion for failure to invoke the dispute resolution mechanisms established under the Physical and Land Use Planning Act and that it is barred by the doctrines of sub judice and res judicata by reason of the pending and previously determined proceedings arising from the National Environment Tribunal. 82. Beginning with the competence of the objections raised, the court will consider them sequentially, starting with the challenge to the Petitioners’ locus standi. Locus standi is dened in Black’s Law Dictionary, 9th Edition, at page 1026, as: “ the right to bring an action or to be heard in a given forum”. 83. Speaking to the same, the court in the case of Alfred Njau and Others Vs City Council of Nairobi (1982) KAR 229, noted: “ The term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 12

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84. In the case of Legal Advice Centre t/a Kituo Cha Sheria vs Attorney General (Advisory Opinion Reference E001 of 2023) [2024] KESC 15 (KLR) (12 April 2024) (Ruling) the Supreme Court gave the following guidance with regard to the determination of locus standi: “ That question raised in regard to locus standi of a party goes directly to the issue of whether the Court has jurisdiction to hear this matter. It is therefore imperative that this court should settle this question at the onset before moving forward with the hearing of the reference itself.” 85. It is therefore evident that locus standi concerns the legal capacity of a party to institute proceedings before the court. It is a jurisdictional issue and one properly brought by way of a preliminary objection. The Respondents have also invoked the doctrines of sub judice and res judicata. These doctrines are intended preserve the integrity of the judicial process by ensuring that parties are not vexed twice over the same subject matter. 86. Sub judice is codied under Section 6 of the Civil Procedure Act which provides: “ No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.” 87. This doctrine seeks to prevent courts from entertaining parallel proceedings and is intended to avert conicting decisions by courts of competent jurisdiction over the same subject matter. 88. On the other hand, the doctrine of res judicata is codied under Section 7 of the Civil Procedure Act, which provides as follows: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such court.” 89. The eect of the doctrine is to prohibit a court from re-opening matters that have already been conclusively determined between the same parties, or those claiming under them, by a court of competent jurisdiction. 90. As to whether the doctrines of res judicata and sub judice may properly be raised by way of a preliminary objection, this court will rely on the exposition by the Court of Appeal in John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure, Attorney General, Kenya Maritime Authority & Oce de Gestion du Fret Maritime (OGEFREM) [2014] eKLR : “ There is no legal requirement or factual basis for the submission that the doctrine must only be invoked and or ventilated through a formal application. It can be raised through pleadings as well as by way of preliminary objection.” 91. Indeed, objections founded on the doctrines of sub judice and res judicata may properly be raised as preliminary objections, provided their determination does not require the court to ascertain contested https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 13

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facts or receive further evidence, but can be resolved on the basis of the pleadings, proceedings and decisions already before the court. 92. In the present case, the court has the benet of the pleadings, and decisions arising from Nairobi ELCEPA E001 of 2026, Gatonye Kariuki, Mumbi Gichuhi & Peter Ritho, as Ocials of Njumbi Road Residents Association vs National Environment Management Authority & ZFRC Holdings Limited, upon which the pleas of sub judice and res judicata are principally founded. This being so, the objections have been properly raised as preliminary questions. 93. Next is the alleged breach of the doctrine of exhaustion, this is a principle that requires courts to refrain from entertaining matters which can be properly resolved through an existing statutory framework. In Speaker of the National Assembly vs Njenga Karume [2008] 1 KLR 425, the court held that where there exists a clear procedure for redress under statute, that procedure ought to be followed. 94. The Court of Appeal restated this principle in Georey Muthinja Kabiru & 2 others vs Samuel Munga Henry & 1756 others [2015] eKLR, thus: “ It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the rst port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is rst of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts.” 95. An inquiry in this regard does not call for the resolution of contested facts or the exercise of discretion, but rather, entails a legal evaluation of the forum invoked vis-à-vis the forum prescribed by statute. This has been properly brought. 96. Moving next to the merits, and beginning with the contention on locus, the Respondents contend that the Petitioners have failed to demonstrate the existence of the Njumbi Road Residents' Association or its legal capacity to institute these proceedings on behalf of the residents. They further assert that the Association is neither a legitimate nor suitable representative of the residents and property owners of Njumbi Road. 97. In response, the Petitioners maintain that the Association is duly constituted and mandated to safeguard the interests of its members. In support thereof, they have exhibited the Association's Constitution and rules as well as a notice of situation of registered oce. 98. Articles 22 and 258 of the Constitution confer a broad right of access to court in constitutional litigation. Article 22(2)(b) permits proceedings to be instituted by a person acting as a member of, or in the interest of, a group or class of persons, while Article 22(2)(d) expressly recognizes an association acting in the interest of one or more of its members. 99. Article 258(2) makes similar provision in proceedings alleging a contravention or threatened contravention of the Constitution. Further, Article 260 denes a "person" to include a company, association or other body of persons, whether incorporated or unincorporated. 100. The breadth of constitutional standing was armed by the Supreme Court in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2014] eKLR, where the court recognized that Articles 22 and 258 of the Constitution expanded the categories of persons entitled to institute constitutional proceedings, including persons acting in the public interest and associations or other bodies of persons contemplated under Article 260. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 14

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101. The present Petition has been instituted by Gatonye Kariuki, Mumbi Gichuhi and Peter Ritho, as ocials of the Njumbi Road Residents' Association, residents said to be aected by the impugned developments. The Petitioners have exhibited the Association's Constitution and Rules as well as a notice of situation of its registered oce. The court is satised as to the legal existence of the association, which is an un incorporate body. 102. While production of a membership list or express written authority from the residents concerned may have provided stronger evidence of the precise composition and mandate of the Association, the court does not consider their absence sucient to defeat standing at the threshold. 103. To impose such a requirement as a condition precedent to constitutional standing would unduly restrict the broader representative standing expressly contemplated under Articles 22(2) and 258(2) of the Constitution. In any event, the Petitioners' standing is not dependent solely upon the Association's capacity, since the Constitution equally permits persons to institute proceedings where appropriate, in the public interest. 104. Accordingly, the court is satised that the Petitioners have demonstrated sucient standing to institute these proceedings. The objection founded on lack of locus standi therefore fails. 105. Turning next to the doctrine of sub judice, the objection was premised on the pendency of Nairobi ELCEPA No. E001 of 2026. As earlier stated, sub judice contemplates the existence of previously instituted proceedings that remain pending before a court of competent jurisdiction. Although the Petition herein was led during the pendency of Nairobi ELCEPA No. E001 of 2026, it is apparent that judgment has since been delivered in that appeal. The proceedings are therefore no longer pending and, to that extent, the objection founded on sub judice has been overtaken by events and is moot. 106. As regards res judicata, as aforeheld, the same is premised on Section 7 of the Civil Procedure Act. In discussing its scope and underlying rationale, the Supreme Court in John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment) noted thus: “ ……Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case¾to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under ve distinct heads: 107. (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) nality of the previous decision.” Indeed, the apex court in John Florence Maritime Services Limited (supra) was categorical that the doctrine of res judicata applies to constitutional Petitions unless a Petitioner establishes special circumstances warranting the exclusion of the doctrine thereto. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 15

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108. The 5th Respondent asserts that the present proceedings are barred by the doctrine of res judicata on account of Nairobi Environment and Land Appeal No. E001 of 2026, Gatonye Kariuki, Mumbi Gichuhi & Peter Ritho (as Ocials of Njumbi Road Residents’ Association) vs National Environment Management Authority & ZFRC Holdings Limited, which arose from NET Appeal No. 7 of 2025. 109. In considering that objection, it is important at the outset to identify the scope of the previous proceedings. NET Appeal No. 7 of 2025 and the corresponding appeal to this court was concerned specically with the Environmental Impact Assessment licence issued by NEMA to ZFRC Holdings Limited, the 5th Respondent herein. The dispute before the Tribunal was therefore conned to the environmental licensing process relating to the 5th Respondent. 110. The scope of the present Petition is considerably wider. The Petitioners herein have sued the Nairobi City County Government, the Governor of Nairobi City County, the County Executive Committee Member responsible for Built Environment and Urban Planning, MYC Solutions Limited and ZFRC Holdings Limited, with NEMA and the National Construction Authority joined as Interested Parties. 111. The Petition challenges, among other matters, the County Government's alleged unilateral decisions to approve multi-level developments within Njumbi Road, the developments undertaken by both the 4th and 5th Respondents, compliance with the applicable development-control framework, public participation and the resulting alleged violations of the Petitioners' constitutional rights. 112. Indeed, the parties are not identical. The Nairobi City County Government and MYC Solutions Limited, against whom substantive complaints and reliefs are sought in the present Petition, were not parties in NET Appeal No. 7 of 2025 or the subsequent appeal. Consequently, any plea of res judicata arising from the previous proceedings can, at best relate only to the challenge concerning the 5th Respondent’s EIA licence and the matters directly and substantially determined in relation to that licence. 113. The question then is whether, even in relation to the 5th Respondent’s licence, there exists a prior determination capable of sustaining the plea of res judicata. The history of the proceedings is instructive. The Tribunal initially heard NET Appeal No. 7 of 2025 and, by its judgment of 31st October 2025, allowed the appeal. It found deciencies in the public-participation process and revoked the 5th Respondent’s EIA licence, stopped construction pending a fresh environmental assessment and issued consequential directions to NEMA and ZFRC. 114. That judgment, however, did not remain standing. The 5th Respondent sought its review on the basis that the Tribunal had made an arithmetical error in computing the statutory sixty-day period within which the appeal ought to have been lodged. By its ruling of 15th December 2025, the Tribunal allowed the application, set aside the judgment of 31st October 2025, in its entirety and substituted it with an order dismissing the appeal for want of jurisdiction on the ground that it had been led out of time. 115. The subsequent appeal to the Environment and Land Court was therefore not an appeal calling upon the court to determine the substantive validity of the 5th Respondent’s EIA licence or the merits of the environmental objections to the development. The issues before the court concerned whether the Tribunal was barred by res judicata and functus ocio from reviewing its earlier judgment, whether the circumstances satised the threshold for review on account of an error apparent on the face of the record, and whether the ruling of 15th December 2025 ought to be set aside. 116. The court upheld the Tribunal's review jurisdiction. It found that the Tribunal had statutory power under Section 129(3) of EMCA to review its decision and that neither res judicata nor functus ocio precluded it from correcting the arithmetical error relating to limitation. It further found that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 16

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appeal before the Tribunal had been lodged outside the prescribed sixty-day period and that the error went to the Tribunal's jurisdiction. 117. Crucially, the court did not delve into or determine the substance of the environmental dispute concerning the 5th Respondent’s license. Its determination was conned to the propriety of the Tribunal's review and the jurisdictional consequence of the appeal having been led outside the statutory period. 118. The court expressly recognized that limitation is a substantive bar going to the Tribunal's jurisdiction and that, notwithstanding the Appellants' underlying environmental grievance, the Tribunal cannot entertain an appeal brought outside the prescribed period. 119. There is consequently no subsisting determination on the merits of the challenge to ZFRC's EIA licence upon which a plea of res judicata can be anchored. The same subsequently fails. 120. Moving next to the doctrine of exhaustion, the same as aforesaid requires a party to rst utilize and exhaust an alternative dispute resolution or statutory mechanism established by legislation before invoking the jurisdiction of the courts. Speaking to the same, the court in William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others: Muslims for Human Rights & 2 Others (Interested parties) [2020] eKLR, a ve-judge bench held as follows: “ The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, rst of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts…” 121. The Court went on to outline the exceptions to the rule as follows: “ As observed above, the rst principle is that the High Court(read ELC) may, in exceptional circumstances consider and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting the Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion…” 122. The Petitioners challenge the impugned developments on several fronts. First, they contend that the decisions of the 1st, 2nd and 3rd Respondents to approve and permit the developments undertaken by the 4th and 5th Respondents are inconsistent with the applicable planning and zoning framework, particularly the Nairobi City County Development Control Policy, 2021. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 17

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123. Their case is that Njumbi Road falls within Zone 5D, which they contend is designated as a lowdensity, single-dwelling residential area, yet the developments approved and undertaken by the 4th and 5th Respondents depart from that character. 124. Secondly, the Petitioners contend that the impugned approvals and developments were undertaken without adequate, meaningful and qualitative public participation. They assert that, despite being residents and property owners directly aected by the developments, they were neither adequately consulted nor aorded an opportunity to present their views before the relevant approvals were granted. On that account, they allege violations of, among others, Articles 10, 42, 47 and 69 of the Constitution and the applicable statutory framework governing planning and public participation. 125. Thirdly, the Petition raises an environmental grievance founded upon Articles 42, 69 and 70 of the Constitution and the Environmental Management and Co-ordination Act (EMCA). The Petitioners contend that the developments threaten their right to a clean and healthy environment through, among other matters, increased noise and air pollution, interference with natural sunlight and air circulation, and excessive pressure upon the existing road network, sewerage, drainage, water and electricity infrastructure. 126. It is not in dispute that disputes concerning development control, planning permission and zoning ordinarily fall within the statutory framework established under the PLUPA. The Act provides a mechanism through which a person aggrieved by a decision relating to development permission may seek redress before the relevant County Physical and Land Use Planning Liaison Committee (the Committee), with a further right of appeal to this court. 127. Similarly, where the grievance concerns a decision of the National Environment Management Authority falling within Section 129 of EMCA, the statutory avenue of redress lies, in the rst instance, before the National Environment Tribunal. 128. In the present case, the Petitioners elected to challenge the EIA licence issued to the 5th Respondent before the National Environment Tribunal (NET). That appeal was dismissed for having been led outside the statutory period, a decision upheld by this court (Wabwoto J) on 9th June, 2026. 129. Indeed, it will appear that while Nairobi Environment and Land Appeal No. E001 of 2026, Gatonye Kariuki, Mumbi Gichuhi & Peter Ritho (as Ocials of Njumbi Road Residents’ Association) vs National Environment Management Authority & ZFRC Holdings Limited, which arose from NET Appeal No. 7 of 2025 challenging the issuance of an EIA License was still pending in this court, the Petitioners led the present matter. 130. It is trite that an EIA is a preventive assessment of a proposed project’s eects on people, property and the environment. It identies potential harm to the environment and the measures required to avoid or mitigate the harm. Public participation, and whether the proposed project impugns the right to a clean and healthy environment forms part of that assessment. It enables aected persons to raise concerns for consideration before a licence is issued. 131. Accordingly, the Petitioners’ complaints that residents were inadequately consulted, and that the development threatens their right to a clean and healthy environment go to the adequacy of the EIA process and the decision to grant the licence, the very matters they sought to place before the Tribunal, and this court by way of an appeal. Having challenged the issuance of the EIA Licence at the Tribunal and on appeal to this Court (Wabwoto J) and lost, they cannot obtain a fresh determination of the same licensing grievances through this Petition by invoking Articles 10, 42, 69 and 70 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 18

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132. To permit a party who has pursued a statutory remedy out of time to restart the same dispute before this court under constitutional language would defeat statutory limitation periods, undermine the disputeresolution structure established by Parliament and encourage forum shopping. It would also allow parties to invoke alternative forums belatedly and, upon failing on jurisdictional grounds, return to this court for the determination they could not obtain in the forum chosen by law. The objection under this head succeeds. 133. The remaining complaints concern zoning, change of user, development permission and public participation in the planning approval process. The development permissions under challenge were issued in 2025 and, as aforesaid, disputes arising from those decisions fall within the statutory mandate of the County Physical and Land Use Planning Liaison Committee under the PLUPA. 134. Under section 78 of the Physical and Land Use Planning Act, 2019 (PLUPA), the County Physical and Land Use Planning Liaison Committee has jurisdiction to hear and determine complaints and claims about applications submitted to the county planning authority and hear appeals against that authority’s decisions on physical and land use development plans, amongst others. 135. The Petitioners contend that this remedy was unavailable to them when the impugned permissions were issued. The court notes that on 26th November 2024, the Chairperson of the Committee notied the County Executive Committee Member responsible for Planning that the Committee’s operations had been suspended owing to the non-payment of members’ allowances. A public notice issued on the same date similarly suspended its sittings until further notice. 136. The position has, however, since changed. On 30th July 2026, the Chairperson of the Nairobi Physical and Land Use Planning Liaison Committee was sworn in, thereby restoring the statutory forum established to determine disputes concerning planning approvals. Now that the Committee is operational, it should perform its statutory function. The questions concerning the propriety of the development permissions should be determined by the Committee in the rst instance, subject to the statutory right of appeal to this court. 137. According to the Respondents, through its planner, Solomon Kyeni, they published a public notice in The Standard newspaper notifying the public of their application for change of user from a single dwelling unit to multi-dwelling town houses and invited objections or comments within fourteen days; that a similar notice was erected on the project site on 13th February, 2025 and that despite the publication of the notices, neither the Petitioners nor any other member of the public lodged any objection or submitted comments within the prescribed period, or at all. 138. This averment by the Respondents was not rebutted by the Petitioners. It is trite that a challenge to the county planning authority’s approval of a change of user from single dwelling to multidwelling falls within the County Government and the County Physical and Land Use Planning Liaison Committee’s jurisdiction. Under section 78(b) of PLUPA, the Committee hears appeals against planning authority decisions on physical and land use development plans; section 78(a) also covers complaints and claims about applications submitted to that authority, including applications for change of user, which in this case happened in 2024, during the existence of the Liaison Committee. 139. The statutory time limit for invoking the County Physical and Land Use Planning Liaison Committee is not a mere procedural formality. It promotes certainty in the administration of development permissions, enables prompt specialist review, and protects all aected parties from the prejudice that may follow when a challenge is deferred while development proceeds. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 19

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140. An objector who has notice of the impugned decision is therefore expected to invoke the prescribed appeal mechanism diligently and within the period provided by section 61(3) of the PLUPA. A belated challenge vide a Petition, like in this case, risks undermining the nality and orderly implementation of planning decisions, a practice that this court frowns upon. 141. For those reasons, the court allows the 4th Respondent’s Notice of Preliminary Objection dated 10th May, 2026. Consequently, the Petition dated 24th April, 2026 and the Notice of Motion dated 24th April, 2026 are hereby dismissed. 142. Considering that the Petition was led in the interest of the public, each party shall bear its own costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. O. A. ANGOTE JUDGE In the presence of ; Mr. Kitinya for Petitioners Ms Amuka holding brief for Muhamud for 1st, 2nd and 3rd Respondent Mr. Muriithi for 4th Respondent Mr. Cheruiyot holding brief for Ganya for 1st Interested Party Mr. Masese for Njenga for 5th Respondent Court Assistant: Tracy https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5617/eng@2026-09-24 20

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