Christopher Wainaina Mburu & Another v National Environment Management Authority & Others

COUNTY EXECUTIVE COMMITTEE MEMBER, HOUSING PHYSICAL PLANNING AND URBAN DEVELOPMENT, MURANG’A COUNTY.............................3RD RESPONDENT KINGS BIOFUELS LIMITED..................................................................4TH RESPONDENT RULING (1)This ruling is on the notice of motion dated 15-5-2026. The motion which is by the two Petitioners is brought under Article 3(1), 20(1), 22(1), 22, 23, 42, 50(1), 69, 70, 159(2)(a) & (e), 165(3)(d)(ii), (i), (6) & (7) and 258 Constitution of Kenya, rules 4,13 and 23(1) of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013 Sections 3 and 13 of the Environment and Land Court Act, Sections 3,3 (5), 58, 68, 108 and 109 of the Environmental Management and Coordination Act 1999; Section 9(4) of the Fair Administrative Action Act (Act No. 4 of 2015), and all other enabling provisions of law. (2)The motion seeks the following residual orders. 3. That pending the hearing and determination of this petition, this Court be pleased to issue a temporary injunction restraining the 4 th Respondent from operating running or in any manner continuing the said facility on the suit property, that is to say, LR. No Makuyu/Kimorori/Block 6/191 (Santamore Halt). 5. That pending the hearing and determination of this petition, this Court be pleased to issue a conservatory order restraining the 1 st Respondent from issuing, granting, renewing, varying, regularizing or otherwise facilitating any Environmental Impact Assessment (EIA) licence under Section 58 of EMCA, Environmental authorization in respect of the 4th Respondent’s in respect operations, or taking any steps that would regularize or facilitate the continuation of the impugned activities. 6. That pending the hearing and determination of this petition, the Court be pleased to issue a conservatory order preserving the Petitioners’ Constitutional rights, including but not limited to the right to a clean and healthy environment under Article 42, the right to life under Article 26(1), the right to human dignity under Article 28, the right to the MRG ELCEPET E001 OF 2026 2R of 11

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highest attainable standard of health under Article 43(1) (a) of the Constitution of Kenya, by restraining the Continuation of the 4th Respondent’s impugned operations. 7. That the Inspector General of Police and/or the Officer Commanding Station (OCS) Kenol Police Station, be directed to ensure compliance with the orders of this Court and to render such assistance as may be required in the enforcement of the orders herein. 8. That this court be pleased, after granting interim orders herein, to direct the Deputy Registrar of this Court, or such other officer as it may deem fit, to conduct an inspection (locus in quo) at the suit land at such time and date as the Court may direct, and to file a report in court for the purposes of preserving evidence and verifying the nature , extent and impact of the impugned operations and emissions, and the proximity thereof to the Petitioners’ residential dwelling (L.R. No. Makuyu/Kimorori/Block 4/796) and surrounding residential dwellings, prior to any alteration, concealment or mitigation thereof by the 4th Respondent. 9. That this Court be pleased to issue such further orders and directions as it may deem fit and just to safeguard the Petitioners’ Constitutional rights and the environment. 10. That the costs of this application be provided for. (3)The motion is based on twenty one grounds and it is supported by the affidavits of Christopher Wainaina Mburu and Erastus Mburu Wainaina both of which are dated 15-5-2026. The gist of the grounds and affidavits is as follows. Firstly, the Petitioners are residents of Trotters Hotel area, Kenol Town, Murang’a County. They specifically reside on L.R. No. Makuyu/Kimorori/Block 4/790 where they have lived for about 20 years. The first Petitioner is a Son to the second Petitioner. The second Petitioner is aged 87 years. He needs care which the first Petitioner and others provide. The area within which they reside is zoned as Agricultural and low density residential where only residential and compatible uses are permitted. The area residents have lived peacefully and have developed permanent residential homes with conscious regard to environmental conversation and responsible development. MRG ELCEPET E001 OF 2026 3R of 11

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(4)Secondly, the 4th Respondent is a private limited Company duly incorporated in the Republic of Kenya and operating an industrial charcoal briquettes/biofuel manufacturing plant on L.R. No. Makuyu/Kimorori/Block 4/191 (Santamore Halt) adjacent to Trotters Hotel in Kenol town. It is the primary actor responsible for the ongoing unlawful operations and environmental pollution complained of in this petition. Its operations are in contravention of the Environmental Management and Coordination (Air Quality) Regulations 2014 and the Environmental Management and Coordination (Noise and Excessive Vibration Pollution Control) Regulations, 2009, in addition to the applicable provisions of the Environmental and Management Coordination Act (EMCA) and the Physical Land Use and Planning Act (PLUPA). Further to the above, the 4th Respondent is presently and continuously operating the said industrial facility without compliance with mandatory statutory requirements, including lawful land use approvals and environmental regulatory compliance, and in the face of ongoing and documented environmental harm. (5)Thirdly, the Petitioner’s house is located directly opposite the premises where the 4 th Respondent operates its plant. The plant emits smoke, fumes and persistent and excessive noise by day and by night. This has exposed the Petitioners to polluted air. The smoke fumes are often heavy, with a strong and unpleasant smell, and they enter the Petitioners’ house and compound and together with the persistent and excessive noise from running machinery and intermittent loud hammering sounds from the plant make it difficult to stay comfortably within their own home. The noise and air pollution interfere with the second Petitioner’s ability to rest or sleep. He also experiences difficulty in breathing. He has developed serious chronic respiratory problems including asthma for which he is under medical care. His doctors have advised him to strictly avoid exposure to smoke, dust and polluted air and to remain in a clear air environment because the continued exposure worsens his condition and places his health at serious and immediate risk including acute respiratory distress and the life threating complications given his advanced age. The second Petitioner is unable to avoid the said emissions because they originate from the 4 th Respondent’s plant-opposite his home and they occur both during the day and at the night. MRG ELCEPET E001 OF 2026 4R of 11

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(6)Fourthly, the 1st Respondent has failed to discharge its statutory enforcement obligations under Section 108 (Environmental Restoration Orders) and Section 109 (Environmental Improvement Orders) of the Environmental Management and Coordination Act, 1999, and the 2nd and 3rd Respondents have failed to enforce land use regulatory controls under the Physical and Land Use Planning Act, 2019, despite formal complaints and knowledge of the unlawful operations, thereby permitting and perpetuating the ongoing violations and breaching their obligations under the public trust doctrine as codified in Article 69(1) (a) of the Constitution. In its inspection report dated 2-4-2026 the 1 stRespndent while purporting to indicate progress towards compliance confirms that the 4th Respondent had only partially complied with the Environmental Restoration Order and that the ambient air quality could not be conclusively determined at the time of inspection and that fugitive emissions remained prevalent within the facility and that the facility had not obtained change of user approval, thereby demonstrating unresolved illegality, unresolved environmental risk and the need for immediate cessation pending hearing. As for the 2nd Respondent’s visit report dated 27-2-2026, it purports to assess noise, smoke odour and waste management at the time of inspection but it fails to demonstrate any valid change of user approval, development permission or compatibility with the applicable coming framework, thereby confirming that the central planning illegality remains unresolved. The second Respondent’s own site visit report recorded noise levels ranging approximately between 75-82 Db during active operations of the 4 th Respondent’s facility which substantially exceed the maximum permissible Residential Outdoor Sound lend Limits of 50 dB(A) during the day and 35 dB (A) during the night under the First schedule to the Environmental Management and Coordination (Noise and Excessive Vibration Pollution Control) Regulations, 2009, thereby corroborating the Petitioners’ complaint of excess industrial machinery noise and demonstrating that the 4 th Respondents operations cannot MRG ELCEPET E001 OF 2026 5R of 11

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safely or lawfully continue within the affected residential and Agricultural locality pending hearing. (7)Finally, the dispute raises substantive Constitutional, Environmental and Land use violations and properly invokes the original jurisdiction of this Court under Section 13 of the Environment and Land Court Act and Article70 (1) of the Constitution. These violations are continuing and the remedies available before statutory tribunals are neither adequate nor efficacious. Objections on the grounds of non-exhaustion of alternative remedies is untenable under Article 22(3) (d) of the Constitution which empowers this Court to dispense with such requirements in the interests of justice and Section 9(4) of the Fair Administrative Action Act, Act No. 4 of 2015, which similarly permits direct court access where administrative review processes are inadequate. Since the contested issues are evidentially based, they cannot be determined by way of a preliminary objection. The balance of convenience tilts in favour of granting the orders sought as the Petitioners stand to suffer grave irreparable harm to health, life and the environment whereas any prejudice to the 4 th Respondent is purely commercial in nature and compensable in damages. Unless the interim reliefs sought are granted, the continued violations will defeat the substratum of the petition and render the proceedings ineffective. (8)The motion is opposed by the 2nd and 4th Respondents who have filed replying affidavits dated 31-8-2026 and 2-7-2026 respectively. In the case of the 2nd Respondent the replying affidavit is sworn by Josephine Kagoi Kuria who is the Environment Officer of the 2 nd Respondent. She deposes that in the year 2025, the 2nd Respondent received correspondence from the office of the Ombudsman notifying it of a complaint lodged by the 1st Respondent on noise and air pollution attributed to the 4th Respondent. The 2nd Respondent immediately took action and sought to know from the 4th Respondent the measures taken to address the complaints raised by the 1st Petitioner. The 2nd Respondent also invited members of the public for a meeting where all stakeholders were to address complaint. On 27-2-2026, the 2nd Respondent conducted a site visit whose objective was to investigate the allegations of excessive noise, smoke emissions and odour concerns. After the site visit and consultative meetings with members of the public, the 2nd Respondent MRG ELCEPET E001 OF 2026 6R of 11

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prepared a detailed report addressing all the issues raised by the Petitioners and it was established that the 4th Respondent is operating within the required environmental standards and the noise levels recorded fall within allowable industrial limits. Members of the public in the area disassociated themselves with the complainant raised by the Petitioners herein and there was consensus that the reported odour originated from a different source with the prevailing wind patterns contributing to its spread within the area. The area where the 4 th Respondent’s plant is located is an industrial area where several factories operate. The 2 nd Respondent established from the 1st Respondent that the 4th Respondent is compliant with environmental regulations. The petitioners failed to establish a nexus between the violations and the 4th Respondent. Finally if the conservatory orders were issued, they would occasion disproportionate prejudice to the 4th Respondent, its employees, the local community and the County’s development objectives while the Petitioners have not demonstrated any imminent irreparable environmental harm that cannot be addressed through the ordinary enforcement mechanisms. (9)In the case of the 4th Respondent, its owner and Director Festus Ngugi responds as follows. One, prior to the establishment of the plant he took deliberate and careful steps to ensure that all mandatory approvals and consents required by law were duly obtained from the relevant statutory bodies. An exhaustive Environmental Impact Assessment study in respect of the 4 th Respondent’s proposed operations was conducted and a licence issued under Section 58 of EMCA . The licence was issued subject to specified conditions which the 4th Respondent complied with and continues to comply with. It also obtained all the requisite environmental approvals and licences from the 1st Respondent including an Environmental Audit Approval under Section 68 of EMCA and licences under the Environmental Management and Coordination (Air Quality) Regulations and (Noise and Excessive Vibration Pollution) (Control) Regulations 2009. Two, the 4 th Respondent applied to the 2nd and 3rd Respondents for the necessary change of user and development permission and he was granted approval to operate the facility on the suit property. The conditions attached to the approval have been fulfilled. Three, the 2nd and 3rd Respondents undertook site visits and carried out all necessary consultations including public participation where the Petitioners through their representatives and the surrounding community were notified and given an opportunity to MRG ELCEPET E001 OF 2026 7R of 11

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raise objections and present their views. Four, the report of 2-4-2026 issued by the 1 st Respondent did not conclude that the 4 th Respondent’s operations were unlawful. It stated that the ambient air quality could not be conclusively determine at the time of inspection but it did not say that the 4th Respondent was in violation of any environmental standard. Equally important, it said that the remaining compliance issues were being addressed and the change of user approval had been obtained. The Petitioners have erroneously applied the Residential outdoor sound level limits to the 4th Respondent’s facility which is lawfully situated in a zone that permits industrial activities and is not solely residential. (10) Finally, the 4th Respondent denies the allegations of continuous and unregulated emission of toxic pollutants and deposes that the facility is fitted with modern emission control technologies that ensure that all emissions are well within the permissible limits as prescribed in Schedule 3 of the Regulations. The photographs and videos annexed to the supporting affidavit as evidence of pollution are not specific to the 4th Respondent’s operations and are taken at an unknown time and under unknown conditions. The 4th Respondent has been operating for a significate period during which the Petitioners have had ample time to ventilate their grievances through the administrative avenues that exist. For the above and other reasons, they pray that the motion be dismissed. (11) Counsel for the parties filed written submissions dated 7th September 2026 (Petitioner) and 3rd September, 2026 (4th Respondent) respectively. The Petitioners issues for determination are as follows. (a) Whether the applicable interlocutory/conservatory threshold has been met. (b) Whether the Petitioners have established a prima facie case concerning absence of demonstrated planning and land use authority. (c) Whether serious unresolved environmental and regulatory questions warrant preventive relief. (d) Whether exhaustion, alleged regulatory compliance, commercial prejudice or balance of convenience defeats the relief sought. MRG ELCEPET E001 OF 2026 8R of 11

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(e) Whether actual continuing operations and direct residential exposure establish the necessity for immediate cessation. (f) What evidentiary effect follows from the 2 nd Respondent’s late affidavit and the continuing absence of factual responses from the 1st and 3rd Respondents. On the other hand the 4th Respondent’s Counsel has framed three issue. (a) Whether the Applicants have established a prima facie case. (b) Whether the Applicants have demonstrated that they will suffer irreparable injury that cannot be adequately compensated by an award of damages. (c) If the Court is in doubt, in whose favour does the balance of convenience tilt? (12) I have carefully considered the motion in its entirety including the grounds, the supporting affidavit, the two replying affidavits, the written submissions by learned counsel for the parties, the issue identified therein and the law cited. I find that the issues as identified will resolve the motion. I make the following findings. Starting with the first of the Petitioners’ issue of whether the applicable threshold has been met as violates to conservatory orders, I am confronted by the deposition by the Petitioners stating that the area where the 4th Respondent’s plant is situated is a residential area and the deposition by the 2nd and 4th Respondents to the effect that it is not a residential zone and that there are other factories in the same area. The first Petitioners deposition is to be found at paragraph 4 of the supporting affidavit and paragraph 5 of the 2nd Petitioners affidavit. Paragraph 9 of the 2nd Respondent’s affidavit states in part. “ the Company is located in an industrial area where several factories are established and operate.” Again at paragraph 10 of the 4th Respondents replying affidavit, it is stated in part, “…the suit property was not, at the time of the establishment of the facility, and is not, zoned solely as Agricultural/Residential as alleged by the Petitioners…” Confronted by this evidence from both sides, am unable at this preliminary stage to decide whether the area where the factory is situated is residential/agricultural or industrial. The Petitioners have not in their affidavits stated the distance from their home to the 4 th Respondent’s plant. The only description of the home in relation to the Plant is to be found at paragraph 3 of the second Petitioners affidavit where he states as follows, MRG ELCEPET E001 OF 2026 9R of 11

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“ …my home is located directly opposite the premises where the 4 th Respondent operates its…plant…” The material before me does not clarify if the two parcels abut each other. Clarity is necessary to enable the Court make a fair decision. (13) The second of the Petitioners’ issues is closely related to the first one. Where is the 4 th Respondent’s plant situated? Is it in the residential/agricultural zone or in the industrial area as deposed by the Respondents. At paragraph 16 of the replying affidavit of the 4 th Respondents it is stated as follows. “The report also acknowledges that the main issue was the change of user approval, which the 4th Respondent had applied for and subsequently obtained.” The change of user approval is not annexed to the replying affidavit. It ought to have been annexed. In the end the uncertainty on the location of the 4 th Respondent’s plant persists until such time when all the pleadings have been filed. (14) Coming to the third of the Petitioners’ issues, lack of certainty highlighted in the two proceeding paragraphs hinders the Court in rushing to make any firm finding on the critical issues of environmental harm and land use regulation. This finding covers the fourth issue of continuing operations of the plant and the necessity for immediate cessation. (15) On the issue of exhaustion, the Petitioners counsel has articulated it very well and it is not a hindrance to this petition because Section 9(4) of the Fair Administrative Action Act and Article 22(3) (d) of the Constitution exempt a party, in suitable cases, and this is one, from the shackles of the doctrine of exhaustion. Learned Counsel for the Petitioners is spot on in this submission I agree with her absolutely. (16) Finally on the last of the Petitioners’ issues, I find that the Petitioners’ counsel has not opposed the second Respondent’s late filing of the replying affidavit and this is the magnanimity and to be procedurally fair. I was surprised to see the affidavit on record. It ought to have been filed by 29-7-2026 but it is dated 31-8-2026 which is more than a month outside the set timeline. I have considered the said affidavit in this ruling because it is neither fair nor just to exclude it. A fair hearing as contemplated by Article 50(1) of the MRG ELCEPET E001 OF 2026 10R of 11

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Constitution includes accommodating late filing and considering all evidence on record in order to achieve the ends of justice. Had the Petitioners decided to file a supplementary affidavit to rebut what is in the 2nd Respondent’s affidavit, it too would have been considered. As for the failure by the 1st and 3rd Respondents to file replying affidavits, nothing is to be said about it because they have the right not to respond. The second and third Respondents are however inseparable and they can be seen as one and the same entity because one represents the other. (17) Having made the above findings, it would be superfluous of me to make any findings on the 4th Respondents issues because, they are related to the ones raised by the Petitioners’ Counsel. In conclusion and for the reasons already given, the motion dated 15-5-2026 is not allowed . Costs in the cause. It is so ordered. Dated, Signed and Delivered virtually at Murang’a this 22nd day of September, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Antony Petitioners’ Counsel - Mr. Kizito 1st Respondent’s Counsel – Miss Kahuria 2nd Respondent’s Counsel – Mr. Mburu 4th Respondent’s Counsel – Mr Gatundu MRG ELCEPET E001 OF 2026 11R of 11

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