Joseph Kamau v The National Construction Authority, The Nairobi City County Government & Abroc Limited

AND IN THE MATTER OF THE NATIONAL BUILDING CODE, 2024 -ANDIN THE MATTER DEVELOPMENT ON A PLOT OF THE ONGOING NEXT TO PLOT NO. NAIROBI/BLOCK 131/1657 OFF MUGI ROAD IN UTHIRU BETWEEN JOSEPH KAMAU.............................PETITIONER/APPLICANT VERSUS THE NATIONAL CONSTRUCTION AUTHORITY ……………………………….………….. 1st RESPONDENT THE NAIROBI CITY COUNTY GOVERNMENT …………………..……. 2nd RESPONDENT ABRIC LIMITED………………….………………..…3rd RESPONDENT RULING Background 1. Vide the Notice of Motion dated 12th October, 2025, brought pursuant to the provisions of Article 70 of the Constitution of Kenya, 2010, Section 13 of the Environment and Land Court Act, and Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the Petitioner/Applicant seeks the following reliefs: ELC EP PET. NO. E041 OF 2025 RULING 2

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a) That pending the hearing and determination of the application and petition, if the safety of the building is not confirmed by the Respondents, a mandatory order be and is hereby issued directing the Respondents to exercise their legal mandates to stop any further construction of the building. b) That the 1st Respondent be compelled to produce before this Honourable Court the names of the developer and professionals overseeing the project. c) That the 2nd Respondent be compelled to produce before this Honourable Court the approved plans and/or permits for the impugned construction project. d) That this Honourable Court be pleased to issue any other orders it deems just and fit in the circumstances. 2. The Motion is supported by the affidavit of Joseph Kamau, the Petitioner/Applicant herein. He deponed that he is the registered and beneficial owner of parcel number Nairobi/Block 131/1657, situated off Mugi Road in Uthiru. 3. He stated that a seven-storey building is under construction on a property adjacent to his and he is concerned about its structural integrity and safety and that his concerns were further heightened by the absence ELC EP PET. NO. E041 OF 2025 RULING 3

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of a site board displaying particulars of the development and the requisite approvals. 4. In an effort to address those concerns, he sought information and intervention Construction Authority from through an the email National dated 9 th September 2025 and, subsequently, through another email and a hand-delivered letter dated 23rd September 2025 and that the Kenya Environmental Lawyers Association (KELA) similarly wrote to the Respondents on 30 th September 2025 concerning the development, which correspondence was received on 1st October 2025. 5. It is the Plaintiff’s case that further, through his Advocates, he sought information from the Nairobi City County Government concerning the building-plan approvals and permits issued for the development and that by a letter dated 3rd October 2025 and received on the same date, he also brought to the County Government’s attention the absence of a site board at the construction site. 6. He stated that on 7th October 2025, he notified the National Construction Authority of his intention to institute the present proceedings. Despite the foregoing correspondence and requests for intervention, neither of the Respondents had responded to his concerns or taken any action to address them. 7. According to Mr. Kamau, construction had continued notwithstanding those concerns and had progressed to the ELC EP PET. NO. E041 OF 2025 RULING 4

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fourth floor. He maintained that, should the building be structurally unsafe, it will pose a serious risk to him, his family, his property and members of the public, and that any harm occasioned by its collapse will be grave, farreaching and irreversible. He consequently urged the court to grant the orders sought in the interests of justice. 8. The 1st Respondent opposed the application through a replying affidavit sworn on 27th October 2025, by Arch. Stephen Mwilu, its Manager Compliance. He stated that the 1st Respondent is established under Section 3(1) of the National Construction Authority Act, No. 41 of 2011, with the statutory mandate of overseeing and regulating the construction industry, promoting its development and ensuring compliance with the Act and the National Construction Authority Regulations, 2014. 9. He explained that under Regulation 17 of the National Construction Authority Regulations, 2014, construction works, contracts and projects in both the public and private sectors are required to be registered with the 1st Respondent. Upon compliance with the prescribed requirements, the 1st Respondent issues a compliance certificate. He further stated that pursuant to Sections 5(2)(g), 23 and 23A of the Act, the 1st Respondent is empowered to enter and inspect construction sites to ascertain compliance with the Act and Regulations. ELC EP PET. NO. E041 OF 2025 RULING 5

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10. Arch. Mwilu deponed that the 1st Respondent received a complaint by email from the Applicant concerning construction works adjacent to Naiobi/Block 131/1657, off Mugi Road, Uthiru. In response, compliance officers from its Nairobi Region inspected the site on 9th October 2025, and that the inspection established that the project was a residential apartment development which had reached the second floor and was still under construction, with a tampered level in the basement. 11. He further deponed that the inspection revealed numerous instances of non-compliance. In particular, he deposed, there were no statutory approvals from the Nairobi City County Government, Management Authority the or National the National Environment Construction Authority; no NCA-registered contractor with a valid licence; no NCA-accredited skilled workers or site supervisors; and no site board displaying the approvals and professionals engaged in the project, and that the site also lacked personal protective equipment, hoarding, fencing, netting and safety signage. 12. Arch. Mwilu stated that the inspection further disclosed matters of structural concern; that there were no records demonstrating supervision by consultants; that some columns and structural members exhibited poor workmanship and honeycombing; and that the columns were not vertically aligned. The officers also observed a system of beams approximately 500 millimetres deep which lacked supports ELC EP PET. NO. E041 OF 2025 to transmit RULING the loads, 6

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notwithstanding that they appeared intended to carry a cantilevered slab serving as a veranda to the units. In the absence of drawings or other records at the site, he deposed that they were unable to ascertain the intended ultimate height of the building. They also noted the absence of an adequate setback for services. 13. Consequently, the 1st Respondent issued Suspension of Works Order Serial No. NCA 166486 dated 9th October 2025, requiring all construction works to cease pending compliance with the applicable statutory requirements and that the suspension order was intended to halt all construction until the developer had taken the necessary measures to comply with the Act and Regulations and, as at the date of swearing the affidavit, the suspension had not been lifted. 14. The 1st Respondent Manager Compliance, maintained that it is in the public interest for the court to restrain the developer from undertaking any further construction until the conditions stipulated in the suspension order had been complied with. He nevertheless denied the Applicant’s allegation that the 1st Respondent had failed, refused or abdicated its statutory mandate, contending that the inspection of the site and subsequent suspension of the works demonstrated that it had discharged its obligations under the Act and its regulations. 15. The 3rd Respondent opposed the Motion through an affidavit dated 10th December 2025, sworn by Paul Njenga, ELC EP PET. NO. E041 OF 2025 RULING 7

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a Director of Abroc Construction Company Limited. He deponed that construction Dagoreti/Uthiru/305 commenced on parcel lawfully number pursuant to approvals issued by the Nairobi City County Government and registration Construction of the Authority project (NCA). with He the denied National that the construction was undertaken illegally, maintaining that the requisite procedures had been followed and the necessary payments made to the relevant authorities. 16. According to Mr. Njenga, the Applicant had not produced credible documentary or technical evidence demonstrating that the development was unlawful or posed any danger to the public. environmental In particular, assessment, no expert structural audit evidence, or other technical report had been produced to establish that the construction violated any applicable legal or technical standard. He similarly denied the allegation that the project lacked a compliant site board, stating that one had been erected and that the relevant project information was available for inspection. 17. As regards the Applicant’s standing, Mr. Njenga stated that the Applicant is not the owner of the property upon which the construction is being undertaken and had not demonstrated how the development infringed any of his constitutional rights or other legally cognisable interest. He therefore contended that the Applicant lacks the requisite locus standi to institute the proceedings. ELC EP PET. NO. E041 OF 2025 RULING 8

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18. The 3rd Respondent’s Director acknowledged that the NCA had inspected the development and temporarily suspended the construction pending compliance with specified requirements. According to him, the 3 rd Respondent had commenced addressing those requirements and was in the process of supplying the NCA with the documents requested in its letter dated 9th October 2025. He confirmed that construction remained suspended pending compliance with the NCA's recommendations and the formal lifting of the suspension order. 19. In that regard, he contended that the Petition is premature and unnecessary since the matters complained of are already the subject of an ongoing regulatory process before the NCA and other competent statutory authorities. He further argued that the Applicant had failed to exhaust the dispute-resolution mechanisms available under the Physical and Land Use Planning Act and the National Construction Authority Act before invoking the jurisdiction of the court. 20. Mr. Njenga further stated that the 3rd Respondent had made the requisite payments to the Nairobi City County Government, copies of which were annexed to the affidavit. He maintained that the injunctive orders sought were unnecessary since the development was already under a lawful suspension imposed by the regulator and no further construction could proceed until the identified compliance requirements had been satisfied. ELC EP PET. NO. E041 OF 2025 RULING 9

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21. He consequently contended that the Petition has been overtaken by the regulatory action already taken, is unsupported by evidence of any constitutional violation and amounted to an abuse of the court process. He urged the court to find the Petition and application premature and incompetent and to dismiss them with costs. 22. Vide a Further Affidavit dated 1st January 2026, the Applicant reiterated the contents of his supporting affidavit. He maintained that the responses, rather than rebutting his case, confirmed that the impugned development was unapproved, unsafe and non-compliant. 23. He challenged the competence of the affidavit sworn by Paul Njenga on behalf of the 3rd Respondent. He deponed that Abroc Construction Company Limited, which Mr. Njenga described himself as a director of, is neither a registered company nor a party to the proceedings. He further stated that a CR12 for Abroc Limited, the 3rd Respondent, showed Robert Muigai as its sole director and shareholder. 24. According to him, Mr. Njenga had neither demonstrated his relationship with the 3rd Respondent nor produced authority to swear the affidavit on its behalf. He therefore contended that the affidavit sworn by Mr. Njenga was fatally defective and ought to be struck out. 25. Without prejudice to the foregoing, he disputed the 3 rd Respondent's assertion that it was licensed by the National Construction Authority or that the development had ELC EP PET. NO. E041 OF 2025 RULING 10

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commenced pursuant to the requisite statutory approvals. The Plaintiff stated that searches conducted with the NCA did not disclose the alleged licensing and that no development approvals had been exhibited. 26. In his view, the invoices relied upon by the 3rd Respondent merely evince an application for approval and not the grant of development permission. He particularly noted that the invoice is dated 5th November 2025, after the institution of the proceedings, which he demonstrated that the development had contended commenced before the requisite approval was sought. 27. The Applicant also rejected the contention that there was no evidence of structural or regulatory non-compliance. He relied upon the findings contained in the 1st Respondent's inspection report and the subsequent suspension of works as evidence that the development lacked the requisite approvals and presented structural and compliance concerns. 28. He maintained that the development is unsafe and unlawful and threaten his rights to life, property and a clean and healthy environment. He further alleged that, in the course interfered of the construction, the developer with an established surveyed had boundary, damaged his perimeter fence and deposited construction rubble within his property, thereby occasioning loss and compromising his security. ELC EP PET. NO. E041 OF 2025 RULING 11

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29. On the plea of exhaustion, he maintained that the alternative statutory mechanisms were unsuitable in the circumstances given the urgency of the matter, the nature of the interim relief sought, the involvement of several public bodies and the range of remedies sought in the Petition. He further contended that requiring him to pursue separate statutory processes would result in piecemeal litigation. 30. The Petitioner similarly disputed the contention that the Petition had been overtaken by events following the NCA's suspension of the works. According to him, construction had continued notwithstanding the suspension order and the injunctive relief remained necessary to secure seeks other compliance. 31. In addition, he deposed, the Petition substantive reliefs, including damages arising from the alleged violation of his right of access to information and damage to his property. He also denied that a site board had been erected, stating that the NCA's inspection had similarly recorded its absence. 32. Turning to the 1st Respondent's affidavit, the Applicant questioned the identification of the developer as “Mr. Paul Kamau of Abroc Limited c/o Samwel Chege,” contending that the description did not disclose the respective legal capacities of the persons named or clearly identify the person or entity responsible for the development. He maintained that such ELC EP PET. NO. E041 OF 2025 clarity was RULING necessary for 12

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accountability, enforcement of regulatory obligations and pursuit of remedies for the alleged damage to his property. 33. He further disputed the 1st Respondent's assertion that the suspension of works had been effectively enforced. He stated that no red “X” had been placed on the site and that construction had continued despite the suspension order. According to him, two additional floors had been added to the first tower, a second four-storey tower had been constructed and two further towers were under construction. 34. He stated that he had brought the continued works to the attention of the 1st Respondent through a letter dated 9th December 2025, accompanied by photographs. He contended that the continued construction demonstrated both disregard of the suspension order by the developer and failure by the 1st and 2nd Respondents to effectively discharge their regulatory mandates. 35. Lastly, he maintained that the 1st Respondent had failed to respond to his request for information made on 9th September 2025. Apart from an automated acknowledgement of receipt, he stated that no substantive response, decision or extension of time was communicated within the statutory period of twenty-one days. 36. The Plaintiff consequently contended that the subsequent production of information through the 1st Respondent's replying affidavit pursuant to the court's directions did not cure the alleged violation of his right of access to ELC EP PET. NO. E041 OF 2025 RULING 13

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information under Article 35 of the Constitution and the Access to Information Act. 37. Vide a further affidavit dated 20th July 2026, the Applicant deponed that, following his letter of 9 th December 2025 notifying the 1st Respondent that its Suspension of Works Order S/No. NCA 166486 dated 9th October 2025 had been disregarded, further correspondence ensued between them. He alleged that, notwithstanding the suspension order, two additional floors were added to the first tower, a second four-storey tower had been constructed and works on two additional towers had commenced. 38. It is his disposition that by a letter dated 16 th February 2026 and received by the 1st Respondent on 17th February 2026, internal finishing works were being undertaken in apparent preparation for occupation. He averred that three compliance officers from the 1st Respondent visited the site on 20th February 2026, re-suspended the works and directed everyone on site to leave. According to him, however, the construction workers resumed work within fifteen minutes of the officers’ departure. 39. He further deponed that, by a letter dated 3 rd March 2026, the 1st Respondent informed his advocates of the findings made during the inspection of 20th February 2026. The letter confirmed that the works had been re-suspended and that, owing to the developer’s breach of the earlier suspension order, the matter had been referred to the 1 st Respondent’s Enforcement Unit for monitoring. ELC EP PET. NO. E041 OF 2025 RULING 14

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40. According to Mr. Kamau, the 1st Respondent’s inspections had consistently disclosed serious violations and repeated disregard of its suspension orders. He referred to Section 23(5) of the National Construction Authority Act and asserted that, where an investigation discloses an offence, the investigating officer is required to provide the relevant information to the officer in charge of a police station. He maintained that there was no evidence that the 1st Respondent had taken that step or otherwise sought police assistance to enforce its orders. Submissions 41. The Applicant filed submissions dated 5th January 2026. Counsel submitted that the application satisfied the principles governing the grant of interlocutory injunctions as set out in Giella vs Cassman Brown & Co. Ltd [1973] EA 358. Counsel further acknowledged that some of the reliefs sought were mandatory in nature, as they sought to compel the 1st and 2nd Respondents to exercise their statutory mandates to prevent further construction, and therefore attracted the higher threshold applicable to interlocutory mandatory injunctions. 42. On the existence of a prima facie case, counsel submitted that the material before the court disclosed apparent violations of the Applicant's rights to life, property and a clean and healthy environment. Counsel argued that the 3rd Respondent was continuing with construction without regard to applicable safety and regulatory requirements as affirmed by the 1st Respondent. In counsel's view, those ELC EP PET. NO. E041 OF 2025 RULING 15

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matters sufficiently demonstrated a prima facie case with a probability of success. 43. As regards irreparable harm, counsel submitted that allowing construction to continue presented a real risk that the development would be completed and occupied notwithstanding the safety deficiencies identified by the 1 st Respondent. It was argued that any structural failure could occasion grave consequences to future occupants as well as to the Applicant, his family and neighbouring property. Such harm, cannot adequately be compensated by an award of damages. 44. On the balance of convenience, counsel submitted that the prejudice likely to be suffered by the Applicant, his family and members of the public if construction were permitted to continue far outweigh any inconvenience to the 3 rd Respondent arising from a temporary cessation of the works. In developer construction counsel's view, would merely pending the inconvenience entail determination to the postponement of of the petition, whereas refusal of the injunction would expose the Applicant and the public to the safety risks complained of. 45. Turning to the mandatory aspect of the relief sought, counsel relied on Maher Unissa Karim vs Edward Oluoch Odumbe [2015] KEHC 4029 (KLR), Kenya Breweries Ltd vs Washington Okeyo [2002] EA 109 and Locabail International Finance Ltd vs AgroExport & Another [1986] All ER 901 for the proposition ELC EP PET. NO. E041 OF 2025 RULING 16

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that a mandatory injunction may issue at the interlocutory stage only in special circumstances and in a clear case where the court has a high degree of assurance that the order will ultimately be shown to have been properly granted. 46. Counsel submitted that such special circumstances existed in the present case. First, there is uncertainty as to the identity and undertaking legal status of the the development, person which or entity complicates accountability and enforcement of regulatory obligations. Second, notwithstanding the suspension of works issued by the 1st Respondent, the developer is continuing with construction, which counsel characterised as disregard of the regulatory process and a circumstance warranting the court's intervention. 47. Lastly, counsel invoked the precautionary principle under Section 3(5)(f) of the Environmental Management and Co-ordination Act and Principle 15 of the Rio Declaration on Environment and Development. Relying on Export Processing Zone Authority & 10 Others vs National Environment Management Authority & 3 Others [2024] KESC 75 (KLR), counsel submitted that the principle favoured anticipatory measures to prevent environmental harm rather than awaiting the occurrence of damage before intervening. 48. The 1st Respondent filed submissions dated 7th July 2026. Counsel submitted that the prayers seeking to compel the ELC EP PET. NO. E041 OF 2025 RULING 17

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Respondents to inspect the development, file reports on their findings, stop further construction if the safety of the building could not be confirmed, and disclose the identity of the developer and professionals engaged in the project have either been spent or overtaken by events. It was argued that a court ought not to issue orders which are incapable of practical effect or which merely require the performance of acts that have already been undertaken. 49. In particular, counsel stated that the 1st Respondent's compliance officers had inspected the development on 9th October 2025, three days before the institution of the proceedings, and documented their findings in the preliminary report annexed to its replying affidavit as “SM1.” Accordingly, the prayer seeking to compel an inspection and the filing of a report had already been substantially satisfied and there was nothing further for the court to compel the 1st Respondent to do. 50. Similarly, counsel submitted that the prayer seeking cessation of further construction had been overtaken by events. Following its inspection and identification of several instances of non-compliance, the 1 st Respondent had issued Suspension of Works Order No. NCA 166486, immediately halting the construction. 51. Counsel maintained that the suspension remained in force since the developer had neither complied with its requirements nor obtained its lifting and that an order of the court restraining ELC EP PET. NO. E041 OF 2025 the same construction RULING would 18

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therefore merely duplicate the regulatory action already taken by the 1st Respondent. 52. Counsel submitted that the developer had already been identified as Mr. Paul Kamau of Abroc Limited, care of Mr. Samwel Chege; that the inspection found no records identifying the project’s architect, structural engineer or quantity surveyor, and the 1st Respondent could not be compelled to produce information it did not possess and that the absence of those records was among the deficiencies that led to the suspension of the works. 53. Counsel maintained that no special circumstances had been demonstrated against the 1st Respondent since it had already undertaken the very regulatory and enforcement measures which the Applicant sought to compel it through the application. The 3rd Respondent did not file submissions. Analysis and Determination 54. Having considered the Motion and responses, the issues that arise for determination are: Whether the 3rd Respondents replying affidavit is i. fatally defective? ii. Whether the Applicant is entitled to the injunctive orders sought? iii. Whether the 3rd Respondent’s replying affidavit is fatally defective? 55. At the outset, the Applicant challenges the competence of the replying affidavit sworn by Mr. Paul Njenga on behalf ELC EP PET. NO. E041 OF 2025 RULING 19

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of the 3rd Respondent and urges the court to strike it out. The challenge arises from Mr. Njenga’s description of himself as a director of Abroc Construction Company Limited, whereas the entity joined to these proceedings as the 3rd Respondent is Abroc Limited. 56. The Applicant relies on a company search which, he contends, shows that Abroc Construction Company Limited is not a registered company, as well as a CR12 identifying Robert Muigai as the sole director and shareholder of Abroc Limited. 57. It is, however, material that the Petition and the present motion were initially instituted against only the 1 st and 2nd Respondents. One of the purposes of the Motion was to ascertain the identity of the developer undertaking construction on the impugned property. In its response, the 1st Respondent identified the developer as Mr. Paul Kamau of Abroc Limited, care of Samuel Chege. It was on the strength of that information that, on 4 th November 2025, the court, on its own motion, joined Abroc Limited to the proceedings as the 3rd Respondent. 58. In his replying affidavit, Mr. Njenga describes himself as a director of “Abroc Construction Company Limited” and refers to that entity as the 3rd Respondent. He further states that it is a duly registered construction company licensed by the National Construction Authority to undertake construction works in Kenya. That description is plainly inconsistent with the name of the entity joined to ELC EP PET. NO. E041 OF 2025 RULING 20

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the proceedings and with the company records exhibited by the Applicant. 59. Nevertheless, the material annexed to Mr. Njenga’s affidavit is not wholly disconnected from the subject matter of the proceedings. It includes invoices and receipts issued by the Nairobi City County Government concerning the impugned parcel, identified as Dagoretti/Uthiru/305, also referred to as Nairobi Block 131/305. 60. The documents are issued in the name of Paul Kamau Waweru, the person identified by the National Construction Authority as being associated with the developer undertaking the impugned construction. Indeed, Mr. Njenga admits to have received the suspension of works letter referenced by the 1st Respondent. 61. Given that the 3rd Respondent was joined on the basis of information supplied by the 1st Respondent, the identity of the developer and the capacity in which Mr. Njenga acted are matters that require clarification through evidence. The court must also distinguish between a deponent’s authority to swear an affidavit on behalf of a company and the admissibility of facts falling within his personal knowledge. 62. In this case, striking out the affidavit at this stage would prematurely determine a disputed evidential issue and exclude potentially relevant material from consideration. The court therefore declines to strike it out. ELC EP PET. NO. E041 OF 2025 RULING 21

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63. Vide the present Motion, the Applicant seeks, inter alia, orders compelling the Respondents to exercise their respective statutory mandates to stop any further construction of the impugned building. He also seeks orders directing the 1st Respondent to disclose the identity of the developer and the professionals overseeing the project, and compelling the 2nd Respondent to produce the approved building plans and permits relating to the development. 64. In substance, these are mandatory orders, as they require the Respondents to take specified positive steps at an interlocutory stage. The principles governing the grant of mandatory injunction are well settled. In Halsbury’s Laws of England 4th Edn. para 948, it was stated thus: “A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff…a mandatory injunction will be granted on an interlocutory application.” ELC EP PET. NO. E041 OF 2025 RULING 22

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65. Further guidance is found in the case of Locabail International Finance Ltd. vs Agroexport & Others [1986] 1 All ER at pg. 901 wherein it was held: “A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary remedied or act which where could the be defendant easily had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.” 66. Closer home, the Court of Appeal in Joseph Kaloki t/a Royal Family Assembly vs Nancy Atieno Ouma [2020] KECA 831 (KLR) reaffirmed its decision in Kenya Breweries Limited & another Vs Washington O. Okeyo [2002] eKLR and stated that: “a mandatory injunction can be granted on an interlocutory application as well as at the hearing but should not normally be granted in ELC EP PET. NO. E041 OF 2025 RULING 23

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the absence of special circumstances but that if a case is clear and which the court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory application.” 67. Applying the foregoing principles to the present Motion, the court will first consider the relief sought against the 1 st Respondent. The evidence shows that, following the Applicant’s complaint, the 1st Respondent inspected the development on 9th October 2025. 68. Its officers identified several instances of non-compliance, including the absence of statutory approvals on site, an NCA-registered contractor, accredited skilled workers and site supervisors, a site board and records of supervision by consultants. The inspection also disclosed concerns relating to workmanship and certain structural elements of the development. 69. Following that inspection, the 1st Respondent issued Suspension of Works Order Serial No. NCA 166486 dated 9th October 2025, requiring construction to cease pending compliance with the applicable statutory requirements. It is therefore evident that the 1st Respondent did not merely receive the Applicant’s complaint; it investigated it and exercised its statutory enforcement mandate. 70. In those circumstances, the court agrees with the 1 st Respondent that, insofar as the Motion seeks to compel it to inspect the development and stop further construction ELC EP PET. NO. E041 OF 2025 RULING 24

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upon establishing non-compliance or safety concerns, that relief has been overtaken by events. 71. The inspection has already been undertaken and the works suspended. A mandatory injunction compels the performance of an act, and where the very act sought has already been performed, there would be no practical utility in directing its repetition. 72. The Applicant’s further affidavit dated 20 th July 2026 does not alter that conclusion. Rather, it demonstrates that, following his subsequent complaint, the 1st Respondent conducted a further inspection on 20th February 2026, resuspended the works and, upon noting the alleged breach of its earlier suspension order, referred the matter to its Enforcement Unit for monitoring and enforcement. The 1st Respondent therefore remains seized of the matter and has taken further steps within its statutory mandate to secure compliance. 73. The Applicant nevertheless faults the 1st Respondent for failing to refer the alleged offences to the police under Section 23(5) of the National Construction Authority Act. That enforcement provision forms framework part of the statutory administered by the 1 st Respondent. It is not for the court, to prescribe the particular enforcement mechanism that the Authority must employ or to assume the functions entrusted to it by statute. ELC EP PET. NO. E041 OF 2025 RULING 25

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74. The position is similar in relation to the prayer seeking disclosure of the identity of the developer and the professionals overseeing the project. The 1 st Respondent disclosed that its inspection identified the developer as “Mr. Paul Kamau of Abroc Limited c/o Samwel Chege.” As regards the professionals, its inspection established that there were no records on site demonstrating supervision by consultants. 75. Although the Applicant contests the adequacy of that information, the court cannot compel the 1 st Respondent to produce information which, by its admission, is not available to it. 76. The court therefore finds that the mandatory interlocutory relief sought against the 1st Respondent has been overtaken by events. While the 1st Respondent has stopped the construction works to the extent permitted by its statutory mandate, thereby rendering that relief moot, the Applicant also seeks an order compelling the 2 nd Respondent to produce the approved building plans and permits relating to the impugned development. 77. The Applicant states that it sought the 2 nd Respondent’s intervention after unsuccessfully attempting to obtain information concerning the approvals and permits issued for the development. Considering that the 2 nd Respondent did not file a response in this court, this court cannot assume that it actually approved the development plans in ELC EP PET. NO. E041 OF 2025 RULING 26

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question. If that is so, how can it compel a party to produce such a document. 78. To the extent that the impugned development has been stopped by the 1st Respondent, it is the developer that has the burden of showing that it obtained development plans. It is not for the 2nd Respondent to state if it approved or did not approve its development plans. This court therefore declines to issue a mandatory order against the 2nd Respondent as prayed. 79. The court has also noted the assertions that the Petition is moot and offends the doctrine of exhaustion. The suspension of the construction works only addressed part of the Applicant’s complaint and did not determine the substantive constitutional questions raised in the Petition. 80. The Applicant alleges violations of, among others, his rights of access to information and to a clean and healthy environment under Articles 35 and 42 of the Constitution, and seeks declarations, compensation and restorative relief. Those questions and remedies fall beyond the scope of the regulatory action undertaken by the 1st and 2nd Respondents. 81. Further, Article 70 expressly permits a person alleging an actual or threatened violation of the right to a clean and healthy environment to approach the court in addition to pursuing any other available legal remedies. The Petition is therefore neither moot nor barred by the doctrine of exhaustion. ELC EP PET. NO. E041 OF 2025 RULING 27

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82. In the result, and for the reasons I have given herein, the Notice of Motion dated 12th October, 2025 is found to be unmerited. The same is dismissed with no order as to costs. Dated, signed and delivered virtually in Nairobi this 8 th day of October, 2026. O. A. Angote Judge In the presence of: Mr. Mununga Makau for Petitioner/Applicant Ms Magero for 2nd Respondent Ms Ogola for 1st Respondent Court Assistant: Tracy ELC EP PET. NO. E041 OF 2025 RULING 28

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