Dennis Onkundi & 2 Others (Suing on their behalf and on behalf of 200 others all known as Northview Estate Resident Association) v Charles O Arigisi & 14 Others

BENSON ONGORI…………………..….……………….6TH RESPONDENT JOHN M MWANGI………………..…….………………7TH RESPONDENT BENARD MOENGA…………………...……………..…8TH RESPONDENT CYRUS KIRIRIU……………………...…………………9TH RESPONDENT PAKIKA KIMANI……………….……..………………10TH RESPONDENT PHILIP NYANUMBA……………………….………...11TH RESPONDENT LILIAN OMUNDI……………………..……………….12TH RESPONDENT JENNIFER MBUGUA JOJEN……………..…. …..13TH RESPONDENT NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY…………….………14TH RESPONDENT THE DIRECTOR DEVELOPMENT MANAGEMENT, THE NAIROBI COUNTY GOVERNMENT…..…15TH RESPONDENT RULING Background 1. Vide a Notice of Motion dated 22nd July, 2025, brought pursuant to the provisions of Sections 3, 4, 13 and 23 of the Constitution of Kenya (Protection of Rights and ELC PET NO. E014 OF 2025 RULING 2

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Fundamental Freedoms) Practice and Procedure Rules, 2013, Section 3 of the Environmental Management and Co-ordination Act Section and 3 and 10 of the Environment and Land Court Act, the Plaintiffs/Applicants seek the following reliefs: a) That pending the inter parties hearing and determination injunction be of this suit, issued a stopping, temporary halting, discontinuing and preventing the 1st, 2nd, 3rd, 4th, 5th, 6th ,7th, 8th, 9th, 10th, 11th,and 12th and 13th Respondents, their servants/ agents/ proponents or any other person from undertaking any further construction and development activities on the properties Numbers NAIROBI/BLOCK 105/1920,NAIROBI/BLOCK105/1857,NAIROBI/B LOCK105/585,NAIROBI/BLOCK105/560,NAIROBI /BLOCK105/1973,NAIROBI/ BLOCK105/1909,NAIROBI/ BLOCK105/530,NAIROBI/ BLOCK105/1856,NAIROBI/ BLOCK105/1855,NAIROBI/ BLOCK105/1947,NAIROBI/BLOCK105/7947 AND NAIROBI/BLOCK105/1242 AND NAIROBI/BLOCK105/581 in Utawala, Embakasi East Sub County, Nairobi City County. ELC PET NO. E014 OF 2025 RULING 3

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b) That a conservatory order of temporary injunction be and is hereby given compelling the 14th and 15th Respondents to take immediate measures to stop, prevent or discontinue any act or omission deleterious to the environment, including arresting and prosecuting any person or equipment being used to undertake further construction and development activities on the properties known as NAIROBI/BLOCK105/1920,NAIROBI/BLOCK105/ 1857,NAIROBI/BLOCK105/585,NAIROBI/ BLOCK105/560,NAIROBI/ BLOCK105/1973,NAIROBI/ BLOCK105/1909,NAIROBI/ BLOCK105/530,NAIROBI/ BLOCK105/1856,NAIROBI/ BLOCK105/1855,NAIROBI/ BLOCK105/1947,NAIROBI/BLOC K105/7947 AND NAIROBI/BLOCK105/1242 AND NAIROBI/BLOCK105/581 in Utawala, Embakasi East Sub County, Nairobi City County, pending the hearing and determination of the application and suit hereof. c) That an order for a temporary injunction do issue restraining the Respondent/Respondents by themselves, their servants, employees, agents ELC PET NO. E014 OF 2025 RULING 4

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and/or any one of them from interfering with the applicants quiet and peaceful enjoyment of their properties by howsoever any means pending determination of this whatsoever and hearing and the Application and suit herein. d) That an order for a temporary injunction do issue restraining the Respondents by themselves, their servants, employees, agents and/or any one of them from interfering with the Applicants right to privacy by any means whatsoever and howsoever pending the hearing and determination of this suit herein. e) The Officer Commanding Ruai Police Station do enforce compliance of the orders above. f) The costs of this application be provided for. g) The Honourable Court be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case. 2. The Motion is supported by the affidavit of Dennis Onkundi, the 1st Plaintiff/Applicant herein of an even date. He stated that he is a member of the 4 th Plaintiff/Applicant Association and has the authority of the other members to depose on their behalf. ELC PET NO. E014 OF 2025 RULING 5

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3. He deponed that the 4th Applicant, Northview Estate Resident Association, is a duly registered society comprising proprietors of plots within Northview Estate in Utawala, Nairobi; that its mandate includes ensuring compliance with the Estate's development control guidelines and that the Association has over 200 members whose affairs are governed by its Constitution and By-Laws. 4. He deposed that according to those By-Laws, members formed the Association for purposes of security, privacy and social cohesion, and all members are required to develop only single-family residential dwelling houses. He added that Article 14(1) of the By-Laws, together with Special Conditions Nos. 1, 3, 4, 5 and 6 contained in the members' titles, restrict development within the Estate to single-family residential houses. He further stated that a signboard erected at the Estate's main gate expressly prohibits the construction of flats. 5. The 1st Plaintiff averred that the 1st to 13th Respondents are members of the Association who voluntarily undertook to abide by its governing instruments; that notwithstanding those obligations, they have embarked on the construction of unauthorized high-rise multi-dwelling residential developments on properties known as NAIROBI/BLOCKS 105/1920, 1857, 585, 560, 1973, 1909, 530, 1856, 1855, 1947, 7947, 1242 and 581, all situated within Northview Estate, Utawala, Embakasi East Sub-County, Nairobi City ELC PET NO. E014 OF 2025 RULING 6

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County and these developments are intended to accommodate multiple households contrary to the Estate's controlled development guidelines. 6. According to the deponent, the impugned developments pose a security risk to both the Estate residents and the public, compromise the privacy of neighbouring homeowners, and have disrupted the peace and tranquillity of the community, with some residents expressing an intention to relocate. He further averred that the Respondents commenced the developments without conducting the mandatory public participation process in relation to the proposed change of user. 7. He deponed that, by a letter dated 20th February 2025, members of the Applicant Association objected to the proposed change of user from single-family dwellings to multi-dwelling apartments and wrote to the County Chief Officer for Urban Planning and Development, Nairobi City County. 8. In response, by letters dated 4th April 2025, the County Chief Officer acknowledged the Association's concerns, recognized that the properties were subject to controlled development, observed that there had been inadequate public participation, and noted the existence of a binding members' resolution requiring construction of single-family dwellings only. ELC PET NO. E014 OF 2025 RULING 7

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9. He further informed the Association that the developer's professional planner, Mr. Charles Ogoli Origisi, had been directed to comply with the existing regulations, engage the affected residents, and undertake adequate public participation in accordance with the law. Despite those directions, the deponent asserted that no public participation has been undertaken to date. 10. He further averred that the Respondents are constructing the high-rise developments without the requisite approvals from the National Environment Management Authority (NEMA). He also maintained that the developments violate the special conditions attached to the titles originally issued by Embakasi Ranching Company Limited, which require that the properties be used solely for residential purposes, prohibit construction except in accordance with plans approved by the Commissioner of Lands and the relevant local authority, restrict building coverage to not more than fifty per cent of the land, and prohibit any use considered dangerous or offensive by the National or County Government. 11. On 20th June, 2025, he explained, the 4 th Applicant lodged a further complaint with the Chief Officer for Urban Development and Planning regarding the alleged illegal developments, but the letter elicited no response. He complained that the Respondents had declined to engage with members of the Association or clarify the ownership ELC PET NO. E014 OF 2025 RULING 8

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documents, which allegedly contradicted their applications for change of user. He also averred that the Respondents have never erected the statutory notice on the suit properties notifying the public of the intended change of user. 12. Lastly, the 1st Plaintiff deponed that members of the 4 th Plaintiff/Applicant Association, together with other allottees of Embakasi Ranching Company Limited, were allocated plots designated for single-storey residential development, while the company had separately reserved distinct parcels of land for commercial and public amenities, including shopping centres, markets, schools, hospitals, churches, playgrounds, security installations, bars and restaurants. He maintained that the Defendants’/Respondents' developments were therefore inconsistent with the original planning scheme governing the Estate. 13. The 2nd Respondent, Obed Obiero, swore a replying affidavit dated 16th August 2025. He deponed that he is the owner of a portion of land comprised in Nairobi/Block 105/1857, which he purchased from one Zachary Gikenyi Getanda for the purpose of constructing residential houses. 14. He stated that he is not a member of the North View Residents Association and was not made aware of the Association or its existence at the time he purchased the property. Prior to commencing construction, he applied to Nairobi City County for a change of user from residential use to residential apartment ELC PET NO. E014 OF 2025 flats, which application RULING was 9

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approved. He maintained that the development is intended solely for residential, and not commercial, purposes. 15. He further deponed that, before commencing construction, he submitted the structural plans for the proposed development to the relevant authorities and obtained the requisite approvals. He subsequently applied for approval to construct an additional floor, submitted the relevant plans and paid the prescribed fees. Thereafter, he sought an amendment of the plans to accommodate a third level, which amendment was similarly approved. 16. The 2nd Respondent also stated that, prior to commencing construction, he sought and obtained approval from the National Environment Management Authority (NEMA) in accordance with the Environmental (Impact Assessment and Audit) Regulations, 2003, following which an EIA license was issued. In addition, the National Construction Authority issued him with a certificate of compliance certifying that the project met the requirements of Section 5 of the National Construction Authority Act. 17. According to him, on 3rd May 2025, Nairobi City County issued him with an enforcement notice, which he duly responded to. He further stated that, in compliance with the requirements applicable to construction sites, he erected signage at development. the He site displaying stated that the he is particulars of the aware of several apartment developments on Embakasi Ranching land within ELC PET NO. E014 OF 2025 RULING 10

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Blocks 105 and 136 rising to as many as six floors, as well as several structures within the area described as North View Estate rising to five floors. He therefore maintained that he had complied with the applicable procedures and obtained all the requisite approvals for the development. 18. The 3rd Respondent, Christopher Kimani Gikonyo, opposed the application through a replying affidavit sworn on 11th September 2025. He disputed the 1st Applicant’s capacity to institute the proceedings, contending that the records held by the Registrar of Societies identify Dennis Amenya Charles, rather than the 1st Applicant, as the Association’s lawful chairperson. 19. He further asserted that the 1st Applicant does not appear in the official membership register and that, contrary to the claim that the Association has more than 200 members, the register reflects only 53 members as evinced by the forwarding letter dated 4th September 2025, a resolution concerning the officials elected on 1st January 2018, the Association’s certified constitution and its current membership register. 20. He further stated that the Association’s constitution is principally concerned with the creation and improvement of social amenities and has not been amended to impose restrictions on construction or prohibit particular building designs. He clarified that he is not a member of the ELC PET NO. E014 OF 2025 RULING 11

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Association and denied having any registered interest in the properties referred to by the 1st Applicant. 21. Regarding the impugned developments, he characterised the allegations as speculative personal opinion and stated that he was not privy to correspondence between the County Government and private individuals. He contended that the 1st Applicant is attempting to usurp the statutory functions of the relevant constitutional bodies. According to him, the affected plots are privately owned, subject to the conditions contained in their respective leases, and may undergo change of user in accordance with the applicable County laws. 22. Lastly, he maintained that the application is intended to advance the 1st Applicant’s personal interests at the expense of the public interest. He contended that it is incompetent for failing to comply with the requirements governing representative or class proceedings, including the production of minutes and resolutions authorising the institution of the suit on behalf of the registered Association. 23. The 4th Respondent, Samwel Kungu, swore a replying affidavit dated the 22nd December, 2025. He deponed that among the properties cited by the Applicants is Nairobi/Block 105/560 in Utawala within Embakasi Ranching Company, jointly registered in the names of himself and Betty Jane Wakarindi, which is undisputed. ELC PET NO. E014 OF 2025 RULING 12

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24. At the onset, he noted that Northview Estate Resident Association only came to his attention upon being served with court pleadings through WhatsApp messenger sometimes in September, 2025 and that he commenced a three-storey development of residential multi-dwelling units in the year 2023 and none of the Applicants or bonafide officials ever engaged him constructively over the ongoing construction. 25. He deposed that although his property is within the Utawala area, he has never been officially invited to join Northview Estate Resident Association, hence he is a total stranger to the allegations that the ongoing construction activities are illegal. 26. As advised by counsel, he stated, the Applicants assertion that the alleged area is zoned for single dwelling residential family houses and not commercial is a misrepresentation of facts, regulatory and statutory laws. Further, that the Constitution/Bylaws dated 22nd March, 2018 and the then eligible Membership List, Minutes/Resolutions dated 10 th March, 2018 are the foundation documents filed at the Registrar of Societies during registration of Northview Estate Resident Association. 27. He explained that pursuant to an official search, the Registrar of Societies vide a letter dated 4 th September, 2025, certified the Association's Constitution on record as a binding document for all and that the letter to the Director of ELC PET NO. E014 OF 2025 RULING 13

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Urban Planning, Nairobi County Government dated 15 th June, 2025 and members signatures appended thereof is an apparent contravention of eligible Constitution of the Association. 28. He stated that he has heavily invested in the property taking from personal savings and intermittent borrowing in the visible retirement project and has no other recourse than to turn to this court to ensure his right to own, possess, use, enjoy and develop is protected. He asserted that resolutions passed by a Resident Association that has not held its mandatory Annual General Meetings (AGMs) or filed Returns since registration are not legally binding on its members or third parties and can be challenged in court. 29. According to Mr. Kung’u, the legal standing of a registered association and the validity of its decisions depend heavily on its compliance with governing laws and its own Constitution/By-laws, typically under the relevant provisions of the Societies Act. According to him, in an uncharacteristic manner, the 1st, 2nd and 3rd Applicants have usurped the powers of the trustees of Northview Estate Resident Association thereby infringing on the legitimate rights of property owners. The purported representative suit lacks legal standing. 30. This court, he urged, should take judicial notice of the accelerated vertical development in Utawala area geared towards densification and sustainable urban living. Further, ELC PET NO. E014 OF 2025 RULING 14

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he deposed, in view of Applicants' lackluster pleadings apparent on the face of the record, they should be ordered to deposit adequate security to cushion the Respondents. He urged the court to dismiss the Motion. 31. The 6th Respondent, Benson Ongori, swore a replying affidavit dated 18th August 2025. He deponed that he is the registered proprietor of the parcel of land known as Nairobi/Block 105/1909, situated within Embakasi Ranching Company Limited, which he has occupied with his family since 2007. He further stated that he is constructing a threelevel residential house comprising a ground floor, first floor and second floor, with each floor containing a one-bedroom unit intended for occupation by his adult children. 32. According to Mr. Ongori, in 2018, the residents convened a meeting at which they agreed to form an association known as the North View Residents Association, whose primary objective was to address matters concerning the welfare of its members, including sewage, water, roads and street lighting. At that meeting, the 1 st Applicant, Dennis Onkundi, was appointed as the Chairman of the Association. He stated that members have never discussed the issue of the nature or type of structures or homes that residents are permitted to construct. 33. He further stated that the by-laws annexed by the 1 st Applicant have never been circulated to, or otherwise brought to the attention of, the members of the Association. ELC PET NO. E014 OF 2025 RULING 15

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As a longstanding resident of the Estate, he maintained that, if the by-laws were ever registered, the same was done without the knowledge or involvement of the members. 34. Further, he stated, membership in the North View Residents Association is not compulsory, contrary to the Applicant’s assertion, and that the boundaries of the alleged North View Estate are not clearly defined. He indicated that he is aware of several apartment developments constructed on Embakasi Ranching land, particularly within Blocks 105 and 136, some rising to six floors. He urged that the motion be dismissed. 35. The 7th Respondent, John Mwangi Matindi swore a replying affidavit dated 26th August 2025. He deponed that he is the registered owner of Nairobi/Block 105/530, measuring approximately a quarter of an acre and situated within Embakasi Ranching, Utawala. At the outset, he opposed the Motion on the grounds that the Applicants lack the requisite legal capacity and authority from the welfare group to institute the suit, and contended that the suit was biased, bad in law and an abuse of the court process. 36. He stated that he is not a member of the North View Residents Association and has never been invited to join the Association or attend any of its meetings. Upon reviewing the Applicants’ affidavit and the annexed documents, he noted that the Association appeared not to have held any meetings or elections since its inception. ELC PET NO. E014 OF 2025 RULING 16

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37. According to Mr. Matindi, several persons sued in the proceedings have already developed their respective properties and rented them out without any objection from the Association. In his view, it is discriminatory for the Applicants to seek to restrain or undo developments that are similar to others already existing within the area. 38. As a resident of the Utawala Embakasi Ranching area, he stated that he is unaware of any provision subjecting the area to controlled development in the manner alleged by the Applicants. According to him, developments within the area are governed by the applicable planning requirements and the approvals issued by Nairobi City County and other relevant government Environment agencies, Management including Authority the National (NEMA) and the denied that the illegal and National Construction Authority (NCA). 39. The 7th Respondent development on consequently Nairobi/Block 105/530 is maintained that he obtained all the requisite approvals and licenses before commencing construction. These included a notice of change of user advertisement dated 10 th September 2022; change of user approval Ref. PLUPA-COU-00057-N; an approved development plan; Nairobi City County Approval Ref. PLUPA-BPM-001472-N; NEMA approvals Nos. NEMA/EIA/PSL/ 25242 and NEMA/EIA/PSR/39742; and NCA Project Registration No. 53128515710201. ELC PET NO. E014 OF 2025 RULING 17

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40. He stated that the development commenced in 2023 and was, by the time of swearing the affidavit, at its final stage of completion. He deposed that throughout that period, he has not received any objection, notice or demand from the Applicants or any other person concerning the development. 41. He added that he has invested close to Kshs. 20,000,000 in the project, comprising his family savings and borrowed funds, with the loan being serviced at approximately Kshs. 150,000 per month. He therefore contended that granting the orders sought will expose him to substantial and irreparable financial loss, particularly as he intends to apply part of the income generated from the development towards servicing the loan. 42. He further maintained that, had the Applicants genuinely objected to the development, they ought to have raised their concerns when he erected a billboard at the site notifying the public of the proposed development. He asserted that none of his immediate neighbours had complained about the project and that several members of the Association had similarly developed generating income. their He properties therefore with a view to contended that the Applicants would suffer no prejudice if the project was allowed to proceed to completion. 43. In the alternative, he urged that, should the court allow the application, the Applicants should be required to provide adequate security to compensate him for the anticipated loss ELC PET NO. E014 OF 2025 RULING 18

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and damage in the event that the suit ultimately failed. He accordingly prayed that the application be dismissed and that the parties be allowed to proceed with the hearing and determination of the main suit. 44. Vide his replying affidavit, the 8th Respondent, Benard Moenga, deponed that the Motion is malicious and vexatious and that the Applicants lack locus standi to institute it. He contended that the Applicants are neither members nor officials of the Northview Residents Association and have not produced any evidence demonstrating that they own property or reside within the Estate. Further, that they have not exhibited any authority from the approximately 200 persons whom they purport to represent. 45. According to Mr. Moenga, the society was registered in 2018, but the constitution which was approved by the members and which was registered is different from the document titled "Northview Estate Resident Association By-laws.” It is his case that the aforesaid document has never been presented to the members for approval and there is no meeting which has ever been convened to amend the constitution of the Society. 46. He explained that the Society has no powers or jurisdiction over the approval of any development plans as purported by the Applicants. This mandate is legally vested on the Nairobi County Government. The Applicants are therefore straying to ELC PET NO. E014 OF 2025 RULING 19

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a specialized jurisdiction where they have no role whatsoever. 47. To the best of his knowledge, he stated, the said County Government has not designated Northview Estate as a controlled development area and indeed the County has given several approvals for development of multiple dwelling and high-rise buildings in the said Estate and that the building plans for his house were approved in the year 2012 which is long before the said Society (Estate Association) was formed and immediately after the said approval, he commenced construction of his house up to its current status and he has not undertaken any further construction since 2018. 48. He asserted that his building is not in breach of any term of the special conditions of the lease or any of the conditions of Embakasi Ranching company contained in the letter of allotment. In any event, the building has not gone beyond one floor which the Applicants claim is the recommended level of development. 49. The 13th Respondent swore a replying affidavit dated the 3 rd September, 2025. She deponed that she is not a shareholder Embakasi Ranching Company Limited and neither is she the registered owner of LR 105. She deposed that equally, she is not a member of Northview Estate, neither has she ever been approached to be a member of the group or to attend any meetings. ELC PET NO. E014 OF 2025 RULING 20

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50. The 13th Respondent denied having developed or constructed any project on the suit property or anywhere else within the area, asserting that she has been erroneously joined in the list of Respondents and should be struck off the suit. 51. The Applicants through Dennis Onkundi filed a further affidavit dated the 20th February, 2026. He maintained that the 1st -3rd Applicants are the legitimate officials of Northview Estate Resident Association; that on 20th July 2025, a duly convened Annual General Meeting (AGM) was held in accordance with their constitution, where all members were notified, and the Applicants were elected to office by a majority vote of the members present and that the Respondents are aware of these elections. 52. He urged that it is in the best interest of the Society and its members that the will of the majority, as expressed in the AGM, is upheld. Regarding the claim that the 4 th Applicant lacks the locus standi or power to stop the development, he denied the same and stated that as a duly registered Welfare Society, they are mandated to protect the interests, amenities, and residential zoning rights of their members under their constitution and the Societies Act. 53. Contrary to the 8th Respondent's assertion, he stated the suit area is a specifically controlled low-density residential area; that the proposed high-rise development violates the Physical and Land Use Planning ELC PET NO. E014 OF 2025 Regulations (2021) RULING regarding 21

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maximum plot coverage, height, and density permitted for the zone and that the 2nd, 3rd, 4th and 8th Respondents have failed to disclose in their affidavits that no public participation was conducted with the neighbors as required by law prior to construction. Submissions 54. The Applicants filed submissions dated 14th May 2026. Counsel submitted that the Applicants had demonstrated their authority through minutes of the Annual General Meeting held on 20th July 2025, at which the current officials were elected and that in any event, Articles 22 and 70 of the Constitution and Section 3(3) of the Environmental Management and Coordination Act confer broad standing upon persons seeking to protect environmental rights without requiring proof of a proprietary interest or personal injury. Reliance was placed on Waweru vs Republic [2006] eKLR and Trusted Society of Human Rights Alliance vs Mumo Matemu & 5 Others [2014] eKLR. 55. Turning to the injunction sought, counsel relied on the principles in Giella vs Cassman Brown & Co. Ltd [1973] EA 358 and Mrao Ltd vs First American Bank of Kenya Ltd [2003] eKLR to submit that the Applicants have established a prima facie case by demonstrating that the estate is designated for single-dwelling residential use and was subject to special conditions and restrictions governing user, plot coverage and density, yet the Respondents had ELC PET NO. E014 OF 2025 RULING 22

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undertaken multi-storey developments which fundamentally altered the character of the estate. 56. Counsel further challenged the process through which the developments and alleged changes of user were approved. It was submitted that no meaningful public participation had been undertaken as required by Articles 10 and 69 of the Constitution and the Physical and Land Use Planning Act. Counsel maintained that correspondence from Nairobi City County demonstrated that complaints had been lodged and that the developers had been required to undertake public participation. Reliance was placed on Robert N. Gakuru & Others vs Governor Kiambu County for the proposition that public participation must be real and meaningful rather than merely cosmetic. 57. Counsel also submitted that the developments posed environmental and planning concerns, including pressure on sewerage and water infrastructure, loss of privacy, increased insecurity and adverse effects on environmental sustainability. 58. It was argued that several Respondents had failed to demonstrate the existence of the requisite environmental approvals, environmental impact assessment processes, public participation or compliance with applicable zoning and density restrictions. Consequently, any approvals obtained without compliance with the prescribed statutory procedures were said to be invalid. ELC PET NO. E014 OF 2025 RULING 23

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59. On irreparable harm, counsel submitted that continued construction would permanently alter the residential character of the estate, compromise privacy, strain existing infrastructure, increase noise and insecurity and cause environmental degradation. Relying on Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR counsel argued that these injuries cannot not adequately be compensated by damages, particularly once the high-rise developments are completed. 60. The 8th Respondent filed submissions through his counsel. Counsel submitted, as a preliminary issue, that the application is not properly before the court and that the court lacks jurisdiction to entertain the challenge to the development approvals issued by the relevant statutory authorities. It was argued that, by joining NEMA and Nairobi City County as the 14th and 15th Respondents and challenging their decisions or alleged inaction, the Applicants are essentially contesting administrative decisions which ought to have been challenged through judicial review under Article 47 of the Constitution and the Fair Administrative Action Act. 61. Counsel further contended that although the Applicants principally seek injunctive relief, they had failed to invoke the relevant provisions governing the grant of injunctions, particularly Order 40 of the Civil Procedure Rules. ELC PET NO. E014 OF 2025 RULING 24

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62. On locus standi, counsel submitted that the 4th Applicant being a society registered under the Societies Act, is not a legal person capable of suing or being sued in its own name and can only institute proceedings through its officials. It was further argued that the alleged Northview Estate bylaws upon which the Applicants rely to restrict development to single-dwelling residential houses had not been registered as required by Section 20 of the Societies Act and therefore had no legal effect. 63. Counsel maintained that the statutory mandate to zone land, designate controlled development areas and approve developments rested exclusively with Nairobi City County under the Physical and Land Use Planning Act, 2019 and that a residents’ association cannot through its constitution or unregistered by-laws, assume that statutory mandate or impose development restrictions inconsistent with approvals granted by the County. Reliance was placed on Rhapta Road Residents Association vs Nairobi City County &NEMA(Civil Appeal No. E160 of 2025) and Mbaazi Avenue Residents Association vs Metricon Homes (Court of Appeal No. E1010 of 2024. 64. As regards public participation, counsel submitted that the fact that the relevant approvals had been issued by NEMA and Nairobi City County demonstrated that the respective applications had undergone the requisite processes, including public participation and environmental assessment ELC PET NO. E014 OF 2025 RULING 25

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and that the fact that the Applicants themselves may not have participated in, or been aware of those processes did not invalidate the approvals. 65. None of the other parties had filed submissions as at 20 th September, 2026. Analysis and determination 66. Before setting out the issues for determination, the court considers it necessary, at the outset, to ascertain the true nature of these proceedings. This is important because the principles governing the present Motion, and ultimately the threshold against which the relief sought is to be tested, will depend on the juridical character of the suit from which the Motion arises. 67. The need for that clarification arises from the manner in which the Motion has been framed. The application is expressed to be brought, inter alia, under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (the Mutunga Rules), and seeks among others what is described as a “conservatory order of temporary injunction.” That formulation conflates two distinct forms of interlocutory relief which ordinarily arise under different legal frameworks. 68. A conservatory order is a public law remedy principally associated with constitutional litigation, while a temporary injunction is an interlocutory remedy ordinarily granted in ELC PET NO. E014 OF 2025 RULING 26

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civil proceedings upon satisfaction of the established principles governing injunctions. 69. In the present case, the suit was commenced by way of a Plaint. The Applicants principally challenge what they describe as developments un-authorized on various high-rise properties multi-residential within Utawala, Embakasi East Sub-County. Their substantive prayers are for a mandatory injunction compelling the demolition and removal of those developments; alternatively, authority for the applicants themselves to remove them; a permanent injunction restraining their construction, occupation or installation; police assistance in the enforcement of the orders; general damages, interest and costs. 70. Apart from generally referencing their rights to a constitutionally protected right to enjoy quiet and peaceful life in a clean and healthy environment, the Plaint does not seek any declaration that a constitutional right or fundamental freedom has been denied, violated, infringed or threatened. The substantive reliefs sought are principally injunctive in nature. 71. Accordingly, notwithstanding the Applicants attempt to invoke both the constitutional and ordinary civil frameworks in the present Motion, the court finds that these are ordinary civil proceedings and the application must therefore be determined in accordance with the principles governing interlocutory relief in civil proceedings. ELC PET NO. E014 OF 2025 RULING 27

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72. Having considered the pleadings, the rival affidavits and the parties’ submissions, the following are the issues that arise for determination: i. Whether the Applicants have the requisite locus to institute these proceedings? ii. Whether the Applicants have met the threshold for the temporary injunctive orders sought? 73. At the outset, the Respondents strongly contest the Applicants locus standi to institute these proceedings. Their objection is two-fold. First, they contend that Northview Estate Resident Association, being a society registered under the Societies Act, is not a body corporate capable of suing in its own name. Secondly, they challenge the capacity of the 1st, 2nd and 3rd Applicants to represent the Association, contending that they have not demonstrated that they are its duly elected officials or that the membership authorised the institution of these proceedings. 74. The Applicants, on the other hand, maintain that Northview Estate Resident Association is a duly registered society and that the 1st, 2nd and 3rd Applicants are its legitimate officials and duly instituted the suit on behalf and for the benefit of the members. 75. Locus standi is defined in Black’s Law Dictionary, 9th Edition, at page 1026 as: ELC PET NO. E014 OF 2025 RULING 28

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“the right to bring an action or to be heard in a given forum.” 76. Speaking to the same, the court in Alfred Njau and Others vs City Council of Nairobi (1982) KAR 229 observed that: “The term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings.” 77. In Legal Advice Centre t/a Kituo Cha Sheria vs Attorney General (Advisory Opinion Reference E001 of 2023) [2024] KESC 15 (KLR), the Supreme Court emphasized that a challenge to locus standi goes to the competence of the party invoking the court's jurisdiction and ought therefore to be determined at the outset. 78. Turning to the present case, the court considers that the first question, whether Northview Estate Resident Association exists is readily answered by the documentary evidence. The Applicants have produced a Certificate of Registration dated 25th June 2018, Registration No. R.50638, issued pursuant to the Societies Act in the name of Northview Estate Resident Association. The 3rd Respondent references a copy of the same certificate. 79. It is trite that a society registered under the Societies Act is an unincorporated association and is not, by reason merely of ELC PET NO. E014 OF 2025 RULING 29

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registration, a legal person capable of suing or being sued in its own name. Proceedings on behalf of such an association must therefore be instituted through its officials or, where appropriate, through one or more of its members in a representative capacity. 80. That position was stated in Trustees Kenya Redeemed Church & Another vs Samuel M’Obiya & 5 Others [2011] eKLR and subsequently cited with approval in Omari vs Registered Trustees Muslim Association Mosque Committee Eldoret & 8 Others (Constitutional Petition E017 of 2021) [2023] KEHC 26117 (KLR), where the court reiterated that a society under the Societies Act is not a legal person with capacity to sue or be sued and can only do so through its duly authorised officers. 81. Similarly, in Free Pentecostal Fellowship in Kenya vs Kenya Commercial Bank, Nairobi HCCC No. 4116 of 1992, as cited with approval in Islamia Madrassa Society v Zafar Niaz & 8 Others [2021] eKLR, the court recognized the common-law position that proceedings involving an unincorporated body are brought in the names of its members and, where the membership is numerous, may be brought by one or more persons in a representative capacity in accordance with Order 1 Rule 8 of the Civil Procedure Rules. 82. In the present case, the 4th Plaintiff is the Northview Estate Residents Association, which lacks capacity to institute ELC PET NO. E014 OF 2025 RULING 30

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proceedings in its own name. However, the suit and the present application were also instituted by Dennis Onkundi, John Maloba and Evelyn Bengal, the 1st to 3rd Applicants who assert that they are officials of the Association. 83. The 1st to 3rd Respondents rely on the minutes of the Annual General Meeting held on 20th July 2025. Minute No. MIN/20/07/25/04, under the heading “Change of Leadership,” identifies Dennis Onkundi, John Maloba and Evelyn Bengal as the incoming Chairman, Secretary and Treasurer, respectively. However, the Registrar’s correspondence dated 4th September 2025, adduced by the 3rd Respondent recognises Dennis Amenya Charles, Lesasuiyan Richard, Judy Njeri Kamau, Daniel Onundu, Daniel Muindi Mwangi and Esther Njenga as the Association’s officials. 84. This competing evidence must be considered against Section 17(1) of the Societies Act, which requires every change of officers, or of the title of any office, to be notified to the Registrar in the prescribed form within fourteen days and signed by three officers of the society. The requirement is intended to ensure that the Registrar’s records accurately reflect the persons lawfully responsible for managing and representing a registered society. 85. In Republic vs Registrar of Societies; Elema & 5 others (Interested Parties); Lafa & another (Ex parte Applicants) [2025] KEHC 9804 (KLR), the court held that ELC PET NO. E014 OF 2025 RULING 31

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the fourteen-day requirement Section under 17 is mandatory and that the Act contains no provision extending the period or validating a late notification. The Registrar’s acceptance of a change submitted four months after the alleged election was consequently quashed. 86. In the present case, the 1st -3rd Applicants admit that the procedure anticipated under Section 17 of the Societies Act was not complied with. Accordingly, the court finds that Dennis Onkundi, John Maloba and Evelyn Bengal have not sufficiently demonstrated that they are the duly recognised officials competent to institute proceedings on behalf of Northview Estate Resident Association. 87. That finding, however, does not dispose of the proceedings. The 1st to 3rd Applicants did not sue exclusively as officials of the Association. The Plaint was also instituted in their individual capacities. The suit shall therefore proceed on the footing that the 1st to 3rd Applicants act in their individual capacities, and not as officials or representatives of Northview Estate Resident Association. 88. The grant of interlocutory injunctions is governed by Order 40 Rule 1 of the Civil Procedure Rules, 2010. The provision empowers the court to issue a temporary injunction where it is demonstrated, by affidavit or otherwise, that the property in dispute is in danger of being wasted, damaged, or alienated, or where a Respondent threatens to dispose of ELC PET NO. E014 OF 2025 RULING 32

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property in circumstances that may obstruct or delay the execution of any decree that may ultimately be issued. 89. In determining whether a plea for injunction is merited, the court must have regard to the well-settled principles enunciated in Giella vs Cassman Brown & Co. Ltd [1973] EA 358, namely, an applicant must establish a prima facie case with a probability of success, demonstrate that irreparable injury would result if the injunction is not granted, and where the court is in doubt, the matter is to be determined on a balance of convenience. 90. These requirements must be satisfied sequentially. As affirmed by the Court of Appeal in Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2014] eKLR, the establishment of a prima facie case, proof of irreparable harm, and the balance of convenience are distinct and logical hurdles, each of which must be satisfied before the court can grant interlocutory injunctive relief. 91. Beginning with a prima facie case, the same was succinctly defined in Mrao Ltd vs First American Bank of Kenya Ltd & 2 others [2003] eKLR thus: “...So, what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the ELC PET NO. E014 OF 2025 RULING 33

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opposite party as to call for an explanation or rebuttal from the latter.” 92. In Nguruman Limited vs Jan Bonde Nielsen & 2 Others(supra), the Court of Appeal affirmed the definition of a prima facie case in Mrao Ltd vs First American Bank of Kenya Ltd(supra) and clarified that an applicant must demonstrate a clear and identifiable right that is directly threatened by the act sought to be restrained. The invasion of the right must be substantive and there must be urgency to prevent irreparable harm. 93. It further held that, at the interlocutory stage, the court does not conduct a mini-trial but only determines whether an applicant has shown a bona fide and arguable claim, proven on a balance of probabilities, which appears more likely than not to ultimately succeed. 94. The Applicants’ case is that the multi-dwelling developments undertaken by the Respondents contravene the Association’s by-laws, the special conditions governing the respective properties, applicable planning requirements and the requirement for public participation. On that basis, they seek to restrain further construction pending the hearing and determination of the suit. 95. In support of their case, the Applicants principally rely on Article 14 of the Association’s by-laws, which requires each property to be developed as a single-family residential dwelling and prohibits the construction of flats for rental ELC PET NO. E014 OF 2025 RULING 34

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purposes. The by-laws also regulate membership, elections, security, roads, sanitation and other matters concerning the welfare and management of the Estate. 96. The Applicants contend that the 1st to 13th Respondents are members of the Association and are therefore bound by Article 14 of its by-laws, which restricts development to single-family dwellings. The annexures do not establish that assertion. The by-laws merely provide that plot owners are eligible for membership upon payment of the prescribed fee; they do not make membership automatic by virtue of property ownership. 97. No membership forms, receipts, undertakings or duly authenticated register have been produced linking each Respondent to the Association. The extensive list exhibited in the further affidavit appears to identify properties and their owners, but does not establish that every person appearing in it applied for membership or agreed to be bound by the by-laws. 98. More significantly, several Respondents are either absent from the list or are not identified against the properties attributed to them in these proceedings. The attendance records of the meeting held on 20th July 2025 similarly do not include all the Respondents. 99. This evidential gap is material because membership is specifically disputed. The 2nd, 4th and 7th Respondents deny ELC PET NO. E014 OF 2025 RULING 35

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being members; the 3rd and 13th Respondents deny both membership and any interest in the cited properties; while the 6th and 8th Respondents, although involved in the Association’s formation, deny knowledge of the impugned bylaws. The Applicants’ general assertion that all thirteen Respondents voluntarily undertook to comply with the Association’s requirements is therefore insufficient. 100. The Association’s by-laws cannot, in any event, prima facie, substitute the statutory system of development control. Under Sections 57, 58 and 61 of the Physical and Land Use Planning Act, authority to grant development permission and approve a change of user rests with the relevant county planning authority. The Association may object to a proposed development or challenge an approval, but it cannot itself determine the permissible user of private property. 101. The Applicants have also not demonstrated, property by property, the applicable zoning classification, the approval required, the particular statutory requirement breached and the legal effect of that breach upon any subsisting permission. The evidence on record shows that developments were commenced at different times and under different circumstances. Some Respondents deny undertaking any development, while others have exhibited change-of-user approvals, approved plans, NEMA licences and NCA compliance certificates. Their legality cannot properly be ELC PET NO. E014 OF 2025 RULING 36

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determined through a collective allegation directed at all thirteen Respondents. 102. The County’s letters dated 4th April 2025 do not establish otherwise. They show that concerns were raised regarding controlled development and public participation, and that the professional planner was directed to engage them and comply with the applicable requirements. They do not amount to enforcement notices, revoke any development permission or finally determine that all the impugned developments are unlawful. The correspondence itself principally concerned the proposal presented by Mr. Charles Ogoli Origisi and cannot, without more, establish illegality against every Respondent. 103. The special conditions relied upon are equally inconclusive. They require residential use, prior approval of building plans, observance of prescribed plot coverage and avoidance of dangerous or offensive uses. They do not expressly restrict each parcel to a single dwelling or prohibit residential apartments. A requirement that land be used for residential purposes cannot, without further evidence, be equated with a prohibition against multi-dwelling residential development. 104. Nor have the Applicants sought the cancellation, revocation or quashing of any particular change-of-user approval, development permission, NEMA licence or approved building plan. It would therefore be inappropriate, at an interlocutory stage, to restrain developments on the assumption that the ELC PET NO. E014 OF 2025 RULING 37

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subsisting approvals are invalid when neither the pleadings nor the evidence distinctly impeach them. Ultimately, the court finds that a prima facie case has not been established. 105. As to the issue irreparable loss, I am in agreement with the Respondents that no irreparable demonstrated. The allegations developments would strain harm has that multi-storey sewerage and been water infrastructure, compromise privacy or increase insecurity are speculative and unsupported by technical, environmental or expert evidence. As was held in Nguruman Ltd vs Jan Bonde Nielsen [2014] eKLR, irreparable injury must be demonstrated rather than merely asserted. 106. In the case of some Respondents, like the 8 th Respondent, construction had been completed by 2018 and order requiring interference with the completed structure at the interlocutory stage would, in substance, amount to a mandatory rather than a temporary injunction. 107. For the reasons given herein, I find the Notice of Motion dated 22nd July, 2025 to be unmerited. The Motion is dismissed with costs. Dated, signed and delivered virtually in Nairobi this 8 th day of October, 2026. O. A. Angote ELC PET NO. E014 OF 2025 RULING 38

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Judge In the presence of: Mr. Mokuna holding brief Maiya for Aplicants Mr. Kinuthia for 3rd Respondent Mr. Ayora for 1st Respondent Mr. Kabaka for 2nd and 6th Respondent Mr. Mwangi D.K. for 7th Respondent Mr. Opini for 8th Respondent Court Assistant: Tracy ELC PET NO. E014 OF 2025 RULING 39

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