David Chege Kuria & Another v The Hon Attorney General & 7 Others

COUNTY ASSEMBLY OF KIAMBU………………....………7TH RESPONDENT COUNTY GOVERNMENT OF KIAMBU……….…...……..8TH RESPONDENT JUDGMENT 1. This Constitutional Petition, dated 18/12/2023, is brought under Articles 2, 10, 19, 20, 21, 22, 23, and 165 of the Constitution of Kenya, 2010. The Petitioner approaches this Honorable Court seeking declarations and enforcement of fundamental rights and freedoms, asserting that the actions and omissions of the Respondent(s) violate statutory provisions and constitutional guarantees. 2. The Petitioner prays that this Honorable Court be pleased to issue the following orders: a) A declaration that the actions, decisions, and omissions of the Respondent(s) complained of herein are unconstitutional, null, and void. b) A declaration that the rights and fundamental freedoms of the Petitioner under the Constitution of Kenya have been infringed upon and violated by the Respondent(s). c) An order of certiorari calling into this Court and quashing the decisions and actions taken by the Respondent(s) against the Petitioner. d) An order of prohibition restraining the Respondent(s), whether by themselves, their agents, servants, or employees, from taking any further adverse administrative or legal steps against the Petitioner in respect of the subject matter herein. ELCLCEPPET. NO. E001 OF 2023 2|Page

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e) An order of mandamus directing the Respondent(s) to perform their statutory and constitutional duties in accordance with the law and the provisions of the Constitution. f) An award of general and constitutional damages to the Petitioner for the violation of their constitutional rights and fundamental freedoms. g) The Costs of this Petition are awarded to the Petitioner. h) That such further, other, or alternative relief be granted as this Honorable Court may deem fit and just in the circumstances. 3. This Constitutional Petition is brought by the Petitioners representing themselves and members of the Gatuanyaga Residents Association to challenge the procedural irregular and unconstitutional setup of a proposed Export Processing Zone (EPZ) on land excised from Delmonte Farm within Kiambu County. 4. The Petitioners anchor their standing to institute Court proceedings on a public interest and constitutional duty framework. They rely on Article 3(1) of the Constitution of Kenya, which imposes an obligation on all persons to respect, uphold, and defend the Constitution. Furthermore, they draw standing from Articles 22(2) and 258(2), which explicitly empower individuals to initiate judicial proceedings in the public interest to thwart impending threats to the Bill of Rights and the Constitution as a whole. ELCLCEPPET. NO. E001 OF 2023 3|Page

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5. The Petitioners have invoked the jurisdiction of the Environment and Land Court pursuant to Articles 162(2)(b) and 165(3)(d)(i) & (ii) of the Constitution of Kenya, which vest authority in superior Courts to hear and determine questions concerning constitutional interpretation, the validity of executive or statutory actions, and environmental disputes. Furthermore, the Petitioners rely on Section 13 of the Environment and Land Court Act (No. 19 of 2011), which clothes the Court with specialized jurisdiction to adjudicate matters relating to the environment and the use, occupation, and title to land. 6. According to the Petitioners they have cited a legal foundation based upon an extensive matrix of constitutional, statutory, and international legal provisions. Principally, it draws from foundational constitutional principles and governance imperatives under Article 2 on the supremacy of the Constitution, Article 10 on national values and principles of governance with particular emphasis on public participation and the rule of law as well as Articles 19, 20, 21, and 24, which govern the enforcement, binding nature, and strict limitations placed upon any derogation of the Bill of Rights. 7. This is further buttressed by specific constitutional provisions governing the environment, land, and institutional oversight. These include Article 42 guaranteeing the right to a clean and healthy environment, Article 47 assuring fair administrative action, and Articles 60 and 69 establishing ELCLCEPPET. NO. E001 OF 2023 4|Page

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principles of sustainable land management and mandatory public participation in environmental governance. Complementing these are the parliamentary and county oversight duties and public involvement mandates set out under Articles 94, 95, 118, 119, 185, and 196 of the Constitution. 8. Statutorily, the petition relies on key regulatory enactments across environmental protection, land planning, and economic zones. Under the Environmental Management and Coordination Act (EMCA), Sections 2, 3, and 9 enforce the precautionary statutory principle, obligation of sustainable the development, National the Environment Management Authority (NEMA) to monitor development projects, and the explicit right of citizens to seek judicial redress without the burden of demonstrating personal loss or injury. Additionally, the petition invokes Sections 2, 4, 5, 38, and 40 of the Physical and Land Use Planning Act, 2019, which dictate strict physical planning norms, require 21-day public gazette notices, mandate ward-level stakeholder engagements, and compel public participation prior to finalising draft county physical development plans. Finally, it anchors its statutory challenge on Sections 2 and 15 of the Export Processing Zones Act, 1990, which govern the procedure for declaring and establishing export processing zones. 9. The Petitioners rely on a chain of facts demonstrating widespread procedural irregularities and a complete failure ELCLCEPPET. NO. E001 OF 2023 5|Page

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of statutory compliance by the Respondents. The 2 nd Respondent issued Legal Notice No. 201 declaring an Export Processing Zone (EPZ), whereupon the 8 th Respondent initiated development plans on land excised from Delmonte Farm (L.R. Nos. 12203/1, 12203/2, and 12158) without publishing statutory notices, displaying draft land use plans across county wards, or conducting mandatory stakeholder engagements. Compounding these omissions, the 7 th Respondent, the County Assembly of Kiambu, abdicated its constitutional oversight role by failing to facilitate public involvement prior to accepting or approving the EPZ plan. The Petitioners claim that this total exclusion of the local community is particularly egregious given their history of marginalization, wherein residents were previously forced to carve out essential public amenities from surrounding forests due to flawed government allocations, thereby creating wellfounded apprehension over the unvetted execution of this high-impact project. 10. The Petitioners in the petition further expose severe threats to critical local infrastructure and community institutions. They state that the designated EPZ site directly sits atop a crucial water catchment area whose surface and groundwater feed into four vital wellsprings Kilimambogo, Gichiki, Wagithago, and Kwandamali which according to the Petitioners serve as the primary source of clean water for surrounding villages, institutions, including ELCLCEPPET. NO. E001 OF 2023 health facilities, Kilimambogo and educational Teachers College. 6|Page

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Additionally, they state that the planned establishment places the Gatuanyaga school complex at immediate risk of displacement and disruption. That this complex, which accommodates 2,625 students across primary, secondary, ECD, and special needs units on a 3.5-acre parcel originally reserved under the Gatuanyaga Settlement Plan, stands to be severely affected by the uncoordinated development, endangering both the safety of the students and the continuity of their education. 11. Consequently, the Petitioners assert that these actions and omissions constitute monumental violations and threats to fundamental constitutional rights. The establishment of an industrial zone in an area lacking adequate waste-handling infrastructure poses a direct threat to the right to a clean and healthy environment under Article 42, creating an immediate public health nuisance. Furthermore, the potential contamination of local aquifers and the disruption of the school complex violate economic and social rights under Article 43, specifically the right to clean and safe water and the right to education, while industrial pollution threatens to diminish surrounding residential property values in contravention of Article 40. Ultimately, by side-stepping public participation and failing to act with transparency and accountability, the Respondents have violated universal State obligations under Articles 3(1), 10, 19, 20, 21, and 259(1) of the Constitution, undermining the rule of law and ELCLCEPPET. NO. E001 OF 2023 7|Page

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the constitutional mandate to respect, protect, and fulfill human rights. 12. The Petition is supported by the Affidavit sworn on even date by Joseph Ng’ang’a Kiarie the 2nd Petitioner with authority of the 1st Petitioner. 13. The Deponent, deposeth that he brings the instant Petition on his own behalf and on behalf of the vulnerable residents of Gatuanyaga Settlement Scheme within Kiambu County to safeguard them against consequent harms to water resources and public amenities such as schools and hospitals. He further avers that as the 2 nd Petitioner/Applicant and Secretary of the Gatuanyaga Residents Association a duly registered association whose mission is policy and advocacy reform for local residents, as evidenced by the registration document annexed hereto and marked “JNK-1” he confirms full authority to swear the affidavit. 14. He states that the 2nd Respondent declared an Export Processing Zone (EPZ) via Legal Notice No. 201, a copy of which is annexed hereto and marked JNK-2, whereupon the 8th Respondent irregularly initiated construction plans on land excised from Delmonte Farm (L.R. Nos. 12203/1, 12203/2, and 12158), with a photograph of the police post container erected on site annexed hereto and marked “JNK3”. The Deponent avers that local residents were never consulted by either the National or Kiambu County Assemblies, denying them their constitutional right to participate in ELCLCEPPET. NO. E001 OF 2023 decisions affecting their well-being. 8|Page

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Furthermore, the 2nd Respondent failed to subject the EPZ proposal to public participation prior to issuing Legal Notice No. 201, while the 8th Respondent failed to publish notices across county wards, hold stakeholder meetings, or notify the public of the draft physical and land use development plan. Additionally, the 7th Respondent failed in its constitutional oversight duties under Article 185(3) and neglected to facilitate public participation before approving the plan pursuant to Articles 185(4) and 196(1)(b) of the Constitution. 15. The Deponent further deposes that the proposed EPZ site directly sits atop a water catchment area feeding four vital sources: Kilimambogo Township (serving St. Mary’s Primary School, Kilimambogo Township, Mukunite Village, and Wendano Village), Gichiki (catering to Kilimambogo Teachers College, St. John, Immaculate Hospital, Kianjahe, and Gichiki village), Wagithago (utilized by Rurii, Makongo, and Miumbu residents), and Kwandamali providing water to Mukawa village and parts of Thika River A and B, as demonstrated in the photographs annexed hereto and marked “JNK-4(a)”, “JNK-4(b)”, “JNK-4(c)”, and “JNK4(d)” respectively. 16. It is his contention that site excavations will disrupt these ground and surface water systems, while industrial waste from the completed project will overwhelm the area's antiquated 1970s waste management system originally designed for only 584 households spilling over onto land, ELCLCEPPET. NO. E001 OF 2023 9|Page

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contaminating domestic water sources, and posing severe health hazards. The development also interferes with the Gatuanyaga school complex, accommodating 2,625 students across primary, secondary, ECD, and special unit levels on a 3.5-acre parcel originally reserved for a shopping centre under the Gatuanyaga Settlement Plan, as shown in the exhibit annexed hereto and marked “JNK-5”. 17. It is the petitioners’ contention that drawing from a history of official neglect where the original 1970s settlement plan of 558 plots lacked public utilities, forcing residents to carve out a hospital and secondary schools from Gathanje and Mbagathi Forests, the community remains apprehensive of aggravated consultation. Although the harm without proper Deponent and residents appreciate the economic rationale and prospective benefits of the EPZ project, but they contend that the speed and manner of its execution without public engagement robs them of the opportunity to raise prior grievances, present current concerns, and propose necessary mitigation measures, despite having already forwarded their formal concerns to the National Land Commission, the Kiambu County Assembly, and the Principal Secretary for the Ministry of Land, Housing and Urban Planning. The Deponent asserts that this Honourable Court is enjoined to intervene and arrest the cascading monumental threats to the Constitution and the rights of the residents of Gatuanyaga Response from the 1st to 5th Respondents ELCLCEPPET. NO. E001 OF 2023 10 | P a g e

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18. The 1st to 5th Respondents filed Grounds of Opposition to the Petition. They oppose the petition on the threshold grounds that it is frivolous, vexatious, non-justiciable, and an outright abuse of the Court process. They contend that the matter is not ripe for determination, asserting that the environmental issues raised fall squarely within the primary statutory jurisdiction of the National Environment Tribunal upon the issuance of a licence, and accordingly pray that the petition be dismissed with costs. 19. The Petition was canvassed by way of written submissions. The Petitioners filed their written submissions dated 8/04/2026 late on 21/04/2026 necessitating the Court to issue additional time to the respondents. The 1 st to 5th Respondents filed undated submissions, the 6 th Respondents filed their submissions dated 16/06/2026. The 7 th and 8th Respondents did not file any submissions. Petitioner’s Submissions 20.The Petitioners submit that their public interest suit meets the threshold for constitutional determination, establishing both locus standi and formal competency under Rule 10(2) of the Constitution of Kenya (Protection of Rights and Procedure Rules, 2013). Relying on Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR. Neutral citation: [2013] KECA 445 (KLR) they affirm that public interest litigation can be maintained by any bona fide member of the public to address legal wrongs against vulnerable communities. The Petitioners note that ELCLCEPPET. NO. E001 OF 2023 11 | P a g e

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the Court affirmed its jurisdiction and their standing in its ruling dated 14/07/2025, which remains unappealed. Rebutting claims of vagueness, they contend that their pleadings strictly adhere to the principles of precision set out in Anarita Karimi Njeru v Republic (Miscellaneous Criminal Application 4 of 1979) [1979] ... Neutral citation: [1979] KEHC 30 (KLR) as reaffirmed in Matemu v Trusted Society of Human Rights Alliance & 5 Others (supra) and Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 others [2015] eKLR. Neutral citation: [2015] KECA 304 (KLR) by clearly detailing the constitutional provisions under threat and the exact particulars of the anticipated breaches. 21.Establishing a clear cause of action under CFC Stanbic Bank Limited v Kenya Haulage Agency Limited [2025] KECA 1034 (KLR) Copy; Media Neutral Citation: [2025] KECA 1034 (KLR) and Ansazi Gambo Tinga & Another v Nicholas Patrice Tabuche [2019] KECA 803 (KLR), the Petitioners argue that the Respondents' actions pose immediate threats to fundamental rights under Articles 42, 43(1)(d), and 69 of the Constitution. That the proposed Export Processing Zone (EPZ) sits on land whose ground and surface water feed four local wellsprings Kilimambogo, Gichuki, Wagithago, and Kwandamali—serving thousands of residents, health facilities, and a school complex of 2,625 students. Excavations and industrial effluents threaten to contaminate these ELCLCEPPET. NO. E001 OF 2023 water sources and overwhelm an 12 | P a g e

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antiquated 1970s waste disposal system built for only 584 households, causing severe health hazards and devaluing local property. Respondents They admitted emphasize to that the commencing 7 th works and 8th without conducting an Environmental Impact Assessment (EIA) report, in direct violation of Section 58(2) of the Environmental Management and Coordination Act (EMCA) and statutory land use planning requirements under Sections 2, 4, 5, 38, and 40 of the Physical and Land Use Planning Act, 2019. 22.Addressing the legal standards of proof set out in Munya v. Dickson Mwenda Kithinji & 2 Others, Civil Application No. 5 of 2014 and Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR the Petitioners assert that they have fully discharged their initial legal burden. Grounding their environmental claims in the polluter pays principle and the precautionary principle as defined in Section 2 and Section 3(5) of EMCA and Principle 15 of the Rio Declaration on Environment and Development they argue that lack of full scientific certainty cannot justify postponing protective measures against irreversible ecological damage. Citing Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR, they emphasize that sustainable development and public participation are foundational national values under Article ELCLCEPPET. NO. E001 OF 2023 13 | P a g e

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10 that must guard against non-inclusive administrative actions. 23.Furthermore, they highlight the Supreme Court's Ruling in Export Processing Zone Authority & 10 Others v National Environment Management Authority & 3 Others (Petition E021 of 2023) [2024] KESC 75 (KLR) to affirm that the State's primary obligation is precautionary before relying on the polluter pays principle, and while the presumption of regularity defers to official actions, it cannot shield administrative bodies when there are clear procedural lapses, unlawful omissions, or failures of due process. 24.Finally, the Petitioners submit that the Respondents violated Article 10, Article 69(1)(d), and Article 174 of the Constitution by side-stepping mandatory public engagement before issuing Legal Notice No. 201 or initiating development. Citing the framework established in British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 Others, Petition 5 of 2017; [2019] eKLR they argue that public participation is a living constitutional principle that must be real, meaningful, timely, and accompanied by reasonable notice rather than treated as a cosmetic formality after project commencement. To remedy these violations, they rely on C M M & 6 Others v The Standard Group & 4 Others SC Petition 13 (E015) of 2022 (Judgment) (8th September 2023), Supreme Court of Kenya case of Wamwere & 5 Others v Attorney General (Petition 26, 34 & 35 of 2019 ELCLCEPPET. NO. E001 OF 2023 14 | P a g e

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(Consolidated)) [2023] KESC 3 (KLR) and Export Processing Zone Authority & 10 Others v National Environment Management Authority & 3 Others (supra) to submit that constitutional remedies under Article 23 and Section 3(3) of EMCA serve to vindicate rights and deter future non-compliance, justifying orders to stop the project and restore the environment. 25. Regarding costs, they cite Section 27 of the Civil Procedure Act, Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] KECA 373 (KLR), [2010] eKLR (Civil Appeal 85 of 2006) and Rai & 3 Others v Rai & 4 Others (Petition 4 of 2012) [2013] KESC 20 (KLR) (6 February 2013) (Ruling) (with dissent - MK Ibrahim, SCJ) to submit that while costs ordinarily follow the event, the Court should exercise its judicial discretion in light of the public interest nature of the suit. Submissions of the 1st to 5th Respondents 26.The 1st to 5th Respondents submits that the public interest Petition challenging the setting aside of parcels L.R. Nos. 12203/1, 12203/2, and 12158 (excised from Delmonte Farm) for an Export Processing Zone (EPZ) is premature and not ripe for determination. They contend that the issuance of Legal Notice No. 201 by the 2nd Respondent under Section 15(1) of the Export Processing Zones Act is merely the unchallengeable initial step to designate the area. This initial declaration does not require prior public participation, nor ELCLCEPPET. NO. E001 OF 2023 15 | P a g e

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does simple gazettement immediately convert agricultural land or violate the Petitioners' property rights. Rather, statutory public participation will be fully observed during subsequent stages, including the formulation of the County Physical and Land Use Plan and the Environmental Impact Assessment (EIA) process. 27.Addressing environmental and procedural concerns, the Respondents contend that the Petitioners' fears regarding water contamination and ecological harm are unfounded. They maintain that statutory requirements, including land use approvals and comprehensive EIA reports, will identify potential impacts and mandate strict mitigation measures prior to full construction and operation. While acknowledging the precautionary principle, the Respondents rely on Mohamed Ali Baadi and Others v Attorney General & 11 Others [2018] KEHC 5397 (KLR) to submit that the Court must exercise caution and balance the imperative for economic development against environmental protection rather than granting Furthermore, because premature injunctive designation relief. automatically incorporates existing land reservations and developments, the process does not violate physical planning laws. 28.The 1st to 5th Respondents conclude by asserting that should the Kiambu County Assembly or executive fail to engage the public at the appropriate planning and EIA stages, the Petitioners can seek judicial remedies then, making the present suit premature. Consequently, they pray that the ELCLCEPPET. NO. E001 OF 2023 16 | P a g e

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Court dismiss the Petition or craft appropriate alternative orders under Article 23 of the Constitution. On the question of costs, citing Republic v. Rosemary Wairimu Munene (Ex parte Applicant) v. Ihururu Dairy Farmers Cooperative Society Ltd (2004), Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] KEHC 7064 (KLR) and Halsbury’s Laws of England, the Respondents submit that because the suit was instituted as public interest litigation, the Court should exercise its judicial discretion and order that each party bear its own costs. 6th Respondent’s Submissions 29.The 6th Respondent, the National Assembly, submits in its undated written submissions that the Petitioners' claims against it are fundamentally misconceived and non- justiciable as they fall outside its constitutional mandate under Article 95 of the Constitution of Kenya. The National Assembly contends that its constitutional role is strictly limited to legislative oversight and national revenue allocation, rather than the micro-management of local physical planning or project-specific Environmental Impact Assessments. 30.It argues that the responsibility for public participation and environmental oversight regarding the Export Processing Zone (EPZ) lies exclusively with the National Environment Management Authority (NEMA) under Sections 9(2) and 58 of the Environmental Management and Co-ordination Act (EMCA), the Kiambu County Government under Sections 38 ELCLCEPPET. NO. E001 OF 2023 17 | P a g e

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and 40 of the Physical and Land Use Planning Act, and the Executive branch under Section 15(1) of the EPZ Act. Citing Speaker of the National Assembly v Karume (Civil Application 92 of 1992) [1992] KECA 42 (KLR), the 6th Respondent asserts that where the Constitution or a statute prescribes a specific procedure for redress, that mechanism must be strictly followed rather than circumvented by improperly suing the legislature. 31. In addition, the National Assembly asserts that the Petition fails to satisfy the established constitutional pleading standard set out in Anarita Karimi Njeru v Republic (supra). Relying on Ngumi v Waigwa & 6 others [2026] KEHC, Mumo Matemu v Trusted Society of Human Rights Alliance (Supra), and Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR it submits that a constitutional petition must state with precision the specific rights infringed, the exact acts or omissions complained of, and the manner of infringement to afford respondents a fair opportunity to defend themselves. 32.The 6th Respondent points out that while the Petitioners pleaded specific facts regarding local water sources and school complexes, they only made vague, generalized allegations against the National Assembly without providing dates, specific parliamentary sessions, or any causal link connecting legislative conduct to the issuance of Legal Notice No. 201. Citing In the Matter of Kenya National ELCLCEPPET. NO. E001 OF 2023 18 | P a g e

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Commission on Human Rights (Reference 1 of 2014) [2014] KESC 33 (KLR) ([2014] eKLR) on holistic constitutional interpretation and Section 107 of the Evidence Act on the legal burden of proof, the 6th Respondent contends that the Petitioners failed to discharge their evidentiary burden. 33.In conclusion the 6th Respondent submits that to the extent the Petitioners seek to challenge the gazettement of the EPZ, they ought to have exhausted available legislative processes, such as petitioning Parliament under Article 119 and the National Assembly Standing Orders. Invoking the doctrine of exhaustion as applied under Section 9 of the Fair Administrative Action Act and reinforced in Gideon v University of Eastern Africa, Baraton & 6 others (Judicial Review Cause E003 of 2025) [2025] KEHC 18120 (KLR) and John Fitzgerald Kennedy Omanga v Postmaster General, Postal Corporation of Kenya & 2 others [2004] eKLR the 6th Respondent emphasizes that judicial review and constitutional petitions must serve as remedies of last resort. In line with the separation of powers and the need for judicial restraint, the National Assembly concludes that its inclusion in these proceedings is misguided, praying that its name be struck out and the Petition against it be dismissed with costs. Issues for Determination ELCLCEPPET. NO. E001 OF 2023 19 | P a g e

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34.Having considered the pleadings, the Supporting Affidavit, and the submissions of counsel, the primary issues crystallizing for determination are: 1) Whether the question of the Petitioners' locus standi and the precision of the pleadings, already settled by this Court's ruling of 14/07/2025, remains open for re-litigation; 2) Whether the initiation of the EPZ project violated the Petitioners’ fundamental rights under Articles 10, 40, 42, 43, 47, and 69 of the Constitution; 3) Whether the process leading to Legal Notice No. 201 and the works that followed it met the constitutional and statutory threshold for public participation; and 4) Whether the Petition is premature and ought to have awaited the licensing and Environmental Impact Assessment stage, as urged by the 1 st to 5th Respondents; 5) What reliefs, if any, are merited, including the propriety of joining the 6th Respondent, the National Assembly. 35.This Petition challenges the constitutional validity and procedural propriety of establishing an Export Processing Zone (EPZ) on land excised from Delmonte Farm within Kiambu County via Legal Notice No. 201. 36.It is brought under Articles 2, 10, 19, 20, 21, 22, 23 and 165 of the Constitution of Kenya, 2010, by residents of the Gatuanyaga Settlement Scheme, Kiambu County, acting ELCLCEPPET. NO. E001 OF 2023 20 | P a g e

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through the 2nd Petitioner as Secretary of the Gatuanyaga Residents Association, in a representative and public-interest capacity. The Petitioners challenge the process by which the 2nd Respondent, by Legal Notice No. 201, declared an Export Processing Zone over land excised from Delmonte Farm (L.R. Nos. 12203/1, 12203/2 and 12158), and the subsequent commencement of works thereon by the 8 th Respondent, on the ground that no public participation, gazette notice, stakeholder engagement or Environmental Impact Assessment preceded either the declaration or the works, in violation of Articles 10, 42, 43, 47, 69 and 174 of the Constitution, the Environmental Management and Coordination Act, the Physical and Land Use Planning Act, 2019, and the Export Processing Zones Act. 37.On the first issue, the Court reiterates that its ruling of 14/07/2025 on jurisdiction and standing, being unappealed, is final between the parties and is not open to challenge in submissions. The Petitioners' pleadings, read as a whole, identify with sufficient particularity the impugned Legal Notice, the parcels of land affected, the water catchments at risk and the school complex threatened, and this satisfies the threshold of precision demanded of constitutional pleadings. 38.On the second issue, the core constitutional metrics of public participation and environmental governance, Articles 10, 42, and 69 mandated robust community engagement and precautionary assessment before initiating activities ELCLCEPPET. NO. E001 OF 2023 21 | P a g e

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affecting vital water catchments and public educational facilities. In Pauku Wa Kiumbe & 3 Others v Minister for Environment and Mineral Resources & 4 Others [2013] eKLR, the Court affirmed the binding nature of environmental compliance and public consultation: "Public participation in environmental and land use matters is not a mere bureaucratic formality or an afterthought to be undertaken post-facto. It is an indispensable constitutional imperative that must precede any project implementation. To commence ground operations or designate development zones without transparent public involvement and a prior, rigorous Environmental Impact Assessment constitutional standard report violates of administrative fair the action and the fundamental right to a clean and healthy environment." 39.The Respondents' admission that ground developments were initiated prior to finalizing an EIA report and prior to county land use plan consultations amounts to a direct infringement of Articles 10, 42, 47, and 69 of the Constitution, as well as statutory provisions under EMCA and the Physical and Land Use Planning Act, 2019. While the economic intent behind an EPZ is commendable, economic development cannot override constitutional mandates, the precautionary principle, or the socio-economic rights of surrounding communities. ELCLCEPPET. NO. E001 OF 2023 22 | P a g e

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40.This Court is further guided by the elaboration of the content of public participation given by the three-judge bench in Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others [2015] eKLR, a decision this Court considers of persuasive and enduring authority on the constitutional content of Articles 10 and 69. The Court there held that public participation, at a minimum, requires that the government agency or public official "fashion a programme of public participation that accords with the nature of the subject matter," taking into account both the quantity and quality of those to be governed, while retaining a measure of discretion as to modalities; participation, in other words, must be real, calibrated to the scale of the intervention, and undertaken before the event, not offered as an afterthought once positions have hardened and infrastructure has been laid. 41.Applying that standard to the uncontroverted facts, the 2 nd Respondent issued Legal Notice No. 201 without any prior public engagement, the 8th Respondent commenced site works without publishing the mandatory twenty-one-day gazette notices or displaying draft plans in the affected wards as required by sections 38 and 40 of the Physical and Land Use Planning Act, and the 7 th Respondent, the County Assembly of Kiambu, failed to discharge its oversight duty under Articles 185(3), 185(4) and 196(1)(b) to ensure such engagement occurred before any approval was extended. ELCLCEPPET. NO. E001 OF 2023 23 | P a g e

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42.This is not a case of imperfect or attenuated consultation which might be excused on the Respondents' own margin of discretion; it is a case of total omission, compounded by the acknowledged absence of any Environmental Impact Assessment prior to the commencement of works, contrary to section 58(2) of EMCA. The precautionary principle codified in section 3(5) of EMCA obliges the State to act protectively in the face of a real and not fanciful risk of harm to the four wellsprings and the 2,625 pupils of the Gatuanyaga school complex, and that obligation was disregarded. The rights under Articles 42 and 43(1)(d), and the national values under Articles 10 and 69(1)(d), were accordingly violated, though the Court is not satisfied, on the material before it, that the mere gazettement of Legal Notice No. 201 per se, as opposed to the manner in which it was implemented, was unlawful, since section 15(1) of the Export Processing Zones Act does not on its own terms make prior public participation a condition precedent to the initial declaration. 43.Tying the second issue to the third one, the 1 st to 5th Respondents urged that the dispute is not ripe, since public participation is reserved for the subsequent planning and Environmental Impact Assessment stages under the Physical and Land Use Planning Act and EMCA, and that the Petitioners ought first to exhaust those statutory avenues. The doctrine of exhaustion was authoritatively restated by a five-judge bench of the High Court in William Odhiambo ELCLCEPPET. NO. E001 OF 2023 24 | P a g e

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Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) [2020] eKLR, where the Court explained that the doctrine exists to ensure a litigant is first diligent in pursuing remedies available within a mechanism established outside the Courts before invoking the jurisdiction of the Court, and cited with approval the admonition in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR and others that Courts ought to be fora of "last resort and not the first port of call the moment a storm brews." 44.That doctrine, however, is not absolute; it does not oust the jurisdiction of this Court where, as here, the complaint is not that a licence was wrongly granted but that a concrete, physical, on-the-ground alteration of land use, evidenced by the excision of the parcels and the erection of a police post container on site, has already occurred without any antecedent participatory process at all. An Environmental Impact Assessment convened after the fact cannot cure a structural failure to consult before the die was cast, and the alternative remedy urged by the Respondents is, in the circumstances, neither timely nor effective in the sense required for the exhaustion doctrine to apply. The Petition is accordingly ripe for determination 45.On the propriety of joining the 6th Respondent, the National Assembly submitted that its constitutional mandate under Article 95 is confined to legislative oversight and does not ELCLCEPPET. NO. E001 OF 2023 25 | P a g e

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extend to project-level physical planning or site-specific Environmental Impact Assessment, and that the Petitioners have failed to plead any act or omission of the National Assembly, as opposed to the Executive, NEMA or the County Government, causally linked to the impugned Legal Notice. The Court accepts this submission. A constitutional petition must, in fairness to each respondent, plead with precision the specific conduct attributed to it; a generalised invocation of parliamentary oversight duties, without particulars of any session, resolution or omission by the National Assembly bearing on this specific project, does not meet that threshold, and the National Assembly is entitled to be struck out of these proceedings. 46.In Patrick Ouma Onyango & 12 Others v Attorney General & 2 Others [2005] eKLR, the Court emphatically held: "It is a well-settled principle of law that a party must not be unnecessarily dragged into Court proceedings where no cause of action is disclosed against them or where the statutory framework explicitly confers the impugned power on distinct administrative entities. The Court must decline to entertain misjoined parties whose constitutional roles do not encompass the administrative acts under challenge." 47.Applying this principle, the statutory power to declare an EPZ rests under Section 15(1) of the EPZ Act with the ELCLCEPPET. NO. E001 OF 2023 26 | P a g e

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Executive branch, while statutory public participation for environmental and land planning falls under NEMA and the County Government pursuant to EMCA and the Physical and Land Use Planning Act, 2019. The 6 th Respondent has no statutory or operational role in issuing Legal Notice No. 201 or executing the localized physical planning. Furthermore, vague assertions alleging a failure of legislative oversight without pleading specific parliamentary omissions fail the threshold of constitutional specificity. Consequently, the claims against the 6th Respondent are wholly unmeritorious and misjoined. 48.As to remedies, the Court declines to grant the sweeping orders of certiorari quashing Legal Notice No. 201 in its entirety, since that would set at naught a legitimate developmental initiative on account of a curable procedural default rather than an incurable substantive defect; a more proportionate and constitutionally sound course is to restrain further physical development pending compliance with the participatory and assessment obligations the Respondents have so far ignored, and to compel those obligations to be performed properly, in the manner contemplated by Mui Coal Basin, before any further works proceed. 49.Revisiting the threshold issues of ripeness and exhaustion raised by the 1st to 5th Respondents, the law is settled that administrative processes must generally run their course, but Court intervention is imperative where ongoing physical works threaten imminent and irreversible constitutional ELCLCEPPET. NO. E001 OF 2023 27 | P a g e

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harm. In Nzioka & 2 Others v Smart Logistics International Limited & 2 Others [2014] eKLR, the Court outlined the limits of prematurity arguments in environmental constitutional claims, stating: "Where it is established that physical execution, preliminary excavations, or structural developments have commenced on the ground in total absence of statutory approvals and public participation, the defence of premature filing cannot stand. The Court cannot fold its arms and wait for ecological degradation to reach a point of no return under the guise that administrative bodies are yet to finalize their internal statutory processes." 50.The uncontroverted evidence photographs showing preparation demonstrates on container that record structures physical specifically and site activities commenced prior to conducting an Environmental Impact Assessment (EIA) or carrying out ward-level stakeholder engagements under Sections 38 and 40 of the Physical and Land Use Planning Act, 2019. This premature execution renders the Petition ripe for judicial intervention to safeguard constitutional principles. 51.On the question of constitutional damages, the Court is not persuaded that the Petitioners have established quantifiable loss beyond the vindication that a declaration and the injunctive and mandatory orders below will themselves ELCLCEPPET. NO. E001 OF 2023 28 | P a g e

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supply, and declines to make a damages award, without prejudice to any future claim should tangible harm materialise. On costs, given the public-interest character of this litigation, its partial success, and the striking out of the 6th Respondent on a preliminary ground unrelated to the merits of public participation, the Court considers it just that each party bears its own costs, save for the 8 th Respondent, against whom costs shall follow the event. 52.Having considered the pleadings, the Supporting Affidavit, the annexures, and the rival submissions, the Court is satisfied that the Petition succeeds in part. Consequently, this Court enters judgment for the Petitioners against the 1 st, 2nd 3rd, 4th 5th, 7th and 8th Respondents by making the following final orders: i) A declaration be and is hereby issued that the actions and decisions of the 2nd, 7th, and 8th Respondents in initiating physical development, excavations, and setup for the proposed Export Processing Zone on L.R. Nos. 12203/1, 12203/2, and 12158 without prior public participation and without a duly approved Environmental Impact Assessment license are unconstitutional, illegal, null, and void. ii) A declaration is hereby issued that the 2nd, 7th and 8th Respondents violated the Petitioners' rights and the national values enshrined in Articles 10, 42, 43(1)(d), 47 and 69 of the ELCLCEPPET. NO. E001 OF 2023 29 | P a g e

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Constitution by failing to conduct meaningful, prior public participation, and by failing to procure an Environmental Impact Assessment, before commencing parcels excised physical from works Delmonte on the Farm and declared as an Export Processing Zone under Legal Notice No. 201. iii) An order of prohibition is hereby issued restraining the 2nd, 7th and 8th Respondents, whether by themselves, their agents, servants or employees, from undertaking any further construction, excavation or physical development on L.R. Nos. 12203/1, 12203/2 and 12158 until the orders in paragraph 4 below have been fully complied with. iv) An order of mandamus is hereby issued directing the 2nd, 7th and 8th Respondents to conduct, within judgment, a ninety public (90) days participation of this exercise meeting the standard set out in Mui Coal Basin Local Community Ministry of publication v Permanent Energy [2015] of requisite the eKLR, Secretary including twenty-one-day gazette and ward-level notices under sections 38 and 40 of the Physical and Land Use Planning Act, 2019, and to procure a full Environmental Impact Assessment under section 58 of the ELCLCEPPET. NO. E001 OF 2023 30 | P a g e

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Environmental Management and Co-ordination Act, with particular regard to the protection of the Kilimambogo, Gichiki, Wagithago and Kwandamali water sources and the continued operation of the Gatuanyaga school complex. v) An order of certiorari be and is hereby issued calling into this Court and quashing any development approvals, site authorizations, or administrative decisions permitting physical works on L.R. Nos. 12203/1, 12203/2, and 12158 pursuant to Legal Notice No. 201 prior to full statutory compliance. vi) The name of the 6th Respondent, the National Assembly, is hereby struck out of these proceedings for want of a properly pleaded cause of action against it with no orders as to costs. vii) As this Petition was brought bona fide to vindicate public interest, environmental protection, and constitutional governance, each party shall bear their own costs save that the 8 th Respondent shall bear the Petitioners' costs of the Petition. It is so Ordered. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 6TH DAY OF OCTOBER 2026. ………………………. ELCLCEPPET. NO. E001 OF 2023 31 | P a g e

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MOGENI J JUDGE In the virtual Presence of: Petitioner – Absent Mr. Motari for the 1st, 2nd, 3rd, 4th and 5th Respondents Miss Amolo for the 6th Respondent Mr. Ometo for 7th and 8th Respondents Mr. Melita - Court Assistant ……………………… MOGENI J JUDGE ELCLCEPPET. NO. E001 OF 2023 32 | P a g e

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