[2021] KEELC 2724 (KLR)
The court found that the applicants had demonstrated that construction of the apartments had commenced without requisite development approvals or evidence of an Environmental Impact Assessment, raising serious constitutional and statutory issues regarding the right to a clean and healthy environment. The 3rd...
Source-derived case information.
- Citation
- [2021] KEELC 2724 (KLR)
- Parties
- Applicant: Francis Mugarami Kamau; Applicant: Christine Wambui Mwangi; Applicant: Kim Mututi Matu; Applicant: Annet Wanjiku Mburu; Applicant: Isabel Achieng Olwenyo; Applicant: Robert Oduor Otieno; Applicant: Mathew Kimolo Nzuki; Respondent: Sycamore Pine Limited; Respondent: Home Africa Communities Ltd; Respondent: Kiambu County Government; Respondent: National Environment Management Authority; Respondent: Migaa Golf Estate Residents Association
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- ? 003 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders Pending Preliminary Objection
- Outcome
- Application for conservatory orders partially allowed; status quo to be maintained pending determination of preliminary objection.
- Judges
- LN Gacheru
- Legal Topics
- Right to Clean Environment, Environmental Impact Assessment, Development Approvals, Status Quo Orders, Jurisdiction of Environment and Land Court, Planning and Zoning
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mugarami Kamau
Applicant
Christine Wambui Mwangi
Applicant
Kim Mututi Matu
Applicant
Annet Wanjiku Mburu
Applicant
Isabel Achieng Olwenyo
Applicant
Robert Oduor Otieno
Applicant
Mathew Kimolo Nzuki
Applicant
Sycamore Pine Limited
Respondent
Home Africa Communities Ltd
Respondent
Kiambu County Government
Respondent
National Environment Management Authority
Respondent
Migaa Golf Estate Residents Association
Respondent
Procedural Posture
Constitutional Petition / Ruling on Interlocutory Application for Conservatory Orders Pending Preliminary Objection
Legal Issues
- 1 Whether the court should grant conservatory orders restraining further construction pending determination of the preliminary objection.
- 2 Whether the construction of low cost apartments without development approvals or environmental impact assessment breaches the petitioners' constitutional rights under Article 42.
- 3 Whether the court has jurisdiction to hear and determine the matter in light of alleged alternative dispute resolution mechanisms.
Ratio Decidendi
The court found that the applicants had demonstrated that construction of the apartments had commenced without requisite development approvals or evidence of an Environmental Impact Assessment, raising serious constitutional and statutory issues regarding the right to a clean and healthy environment. The 3rd Respondent confirmed that approvals were still under consideration, and the 1st Interested Party had not provided evidence of EIA compliance. The court acknowledged the pending preliminary objection on jurisdiction but held that, to preserve the substratum of the dispute and prevent irreparable harm, it was necessary to maintain the status quo by restraining further construction until...
Court Disposition
Application for conservatory orders partially allowed; status quo to be maintained pending determination of preliminary objection.
Orders
- Status quo to be maintained; no further construction on the subject property pending hearing and determination of the preliminary objection.
- Ruling delivered virtually with consent of parties due to COVID-19 measures.
Full Case Text
Judgment text and source record
58 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT THIKA
ELC PETITION NO. E 003 OF 2021
IN THE MATTER OF THE SUPREMACY OF THE CONSTITUTION UNDER ARTICLE 2 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE ENFORCEMENT OF ARTICLES 22, 23, 40, 42, 47, & 70 OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF SECTIONS 3, 58, 59,60, 61 OF THE ENVIRONMENTAL MANAGEMENT & COORDINATION ACT, 2013
AND
IN THE MATTER OF THE PHYSICAL AND LAND USE PLANNING ACT, 2019 AND THE ZONING POLICY MASTER PLAN OF THE GATED
MIGAA INTEGRATED GOLF ESTATE, KIAMBU
AND
IN THE MATTER OF THE PROPOSED CONSTRUCTION OF TWENTY EIGHT (28) BLOCKS COMPRISING 1959 LOW COST APARTMENTS IN THE PROPOSED SAMARA ESTATE’S AFFORDABLE HOUSING DEVELOPMENT ON UNIT NO. CC01 SITUATED ON L.R. NO. 29059 BY SYCAMORE PINE LIMITED WITHIN THE GATED HIGH END MIGAA INTEGRATED GOLF ESTATE
BETWEEN
FRANCIS MUGARAMI KAMAU...............................................................1ST PETITIONER
CHRISTINE WAMBUI MWANGI............................................................ 2ND PETITIONER
KIM MUTUTI MATU..................................................................................3RD PETITIONER
ANNET WANJIKU MBURU......................................................................4TH PETITIONER
ISABEL ACHIENG OLWENYO...............................................................5TH PETITIONER
ROBERT ODUOR OTIENO.....................................................................6TH PETITIONER
MATHEW KIMOLO NZUKI ....................................................................7TH PETITIONER
(Suing on their behalf and on behalf of the residents and home owners of Migaa Integrated Golf Estate)
VERSUS
SYCAMORE PINE LIMITED.................................................................1ST RESPONDENT
HOME AFRICA COMMUNITIES LTD................................................ 2ND RESPONDENT
KIAMBU COUNTY GOVERNMENT................................................... 3RD RESPONDENT
NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY....1ST INTERESTED PARTY
MIGAA GOLF ESTATE RESIDENTS ASSOCIATION...............2ND INTERESTED PARTY
RULING
The Petitioners herein vide a Petition dated 18th May 2021, have sought for various orders against the Respondents among them a declaration that the Respondents have breached Articles 40and 42 of the Constitution, by allowing and/or carrying out unlawful construction on the property known as unit No.CC01,situated on LR No. 29059, within the Migaa Integrated Golf Estate, in Kiambu County.
Simultaneously, the Petitioners also filed a Notice of Motion application dated20th May 2021,and sought for Conservatory Orders, to restrain the 1st Respondent from constructing, selling, advertising for sale, and carrying out the illegal construction of 1959, low cost Apartments onLR No. 29059, within Migaa Integrated Golf Estate in Kiambu County, pending the hearing and determination of the Application and the Petition.
In the alternative, they sought for maintenance of status quo to the effect that no further construction on the subject property, pending the hearing and determination of this Application and Petition.
The Respondents filed Notices of Preliminary Objectionsand averred that this Court has no jurisdiction to hear and determine this matter. That there are alternative disputes resolution mechanisms that the Petitioners failed to engage before coming to this Court.
The 2nd Interested Party Migaa Integrated Golf Estate Residents Association supported the issuance of Conservatory Orders.
On 9th June 2021, the parties argued on the issue of issuance of Conservatory Orders at this Preliminary stage. The Petitioners averred that there is construction of 1959 low costs apartments on the suit property without development approvals or Environmental Impact Assessment (EIA). That the said construction goes against the Master Plan of Migaa Integrated Golf Estate and is in breach of Article 42,of the Constitution which guarantee the Petitioners a clean environment. That allowing the construction would change the substratum of the area and the case even before the application is heard and determined.
The Respondents opposed the issuance of Conservatory Orders on the ground that there arefinancial implications and the applicants have remedies at the Liaison Committeeof Kiambu Executive Committee. That if the Petitioners succeed at the Liaison Committee stage, the Committee can even order for demolition of the said constructions. That the Petitioners have jumped the gun.
The 2nd Interested Party argued in favour of grant of Conservatory Orders and submitted that the issue of financial implication is not sufficient to deny the issuance of Conservatory Orders herein.
The Court has considered the pleadings in general and the arguments for and against the issuance of Conservatory Orders. It is not in doubt that the 1st Respondent has commenced construction of the alleged low cost apartments on the suit property. The 3rd Respondent has confirmed that development approvals have not been issued yet and are in the process of being considered. There is No evidence of Environmental Impact Assessment from the 1st Interested Party.
It is also evident that there is a question of Jurisdiction that has to be determined before the instant Notice of Motion dated 20th May 2021, can proceed for hearing. The Petitioners have brought an issue touching on environmental degradation and breach of Article 42 of the Constitution on clean environment.
The Court finds that before the issue of Jurisdiction can be settled, Status quo needs to be maintained, in the meantime.
Consequently, the Court allows the Notice of Motion Application dated 20th May 2021, in terms of Prayer No. (c), that is status quo to be maintained, with no further construction on the subject property pending the hearing and determination of the pending Preliminary Objection.
It is so ordered.
DATED, SIGNED AND DELIVERED AT THIKA THIS 14TH DAY OF JUNE 2021.
L. GACHERU
JUDGE
14/6/2021
Court Assistant – Lucy
ORDER
In view of the declaration of measures restricting Court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.
With Consent of and virtual appearance via video conference – Microsoft Teams Platform
Mr. Agwara & Koech for the Petitioners
Mr. Kenneth Wilson holding brief for Mr. Musyoka for the 1st Respondent
Mr. Marete for 2nd Respondent
Mr. Sanaeti holding brief for M/s Mbugua for 3rd Respondent
Mr. Gitau for 2nd Interested Party
L. GACHERU
JUDGE
14/6/2021