https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3221

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC EP PETITION NO. E002 OF 2024** **IN THE MATTER OF ARTICLES 10, 19, 20, 22(1), 23(1), 70, 165 AND 232 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF THE ONGOING AND FURTHER INTENDED CONTRAVENTION OF ARTICLES 26, 28, 35, 42, 43(1)(B), 47(1), 50, 69(1), 70, 73 AND 75(1) OF THЕ CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE ACCESS TO INFORMATION ACT, 2016** **AND** **IN THE MATTER OF THE PHYSICAL AND LAND USE PLANNING ACT, NO. 13 OF 2019** **AND** **IN THE MATTER OF THE ENVIRONMENTAL MANAGEMENT AND COORDINATION ACT, NO. 8 OF 1999** **AND** **IN THE MATTER OF THE NATIONAL CONSTRUCTION AUTHORITY ACT, NO. 41 OF 2011** **AND** **IN THE MATTER OF THE LEADERSHIP AND INTEGRITY ACT AND IN THE MATTER OF: THE PUBLIC OFFICERS ETHICS ACT** **AND** **IN THE MATTER OF THE ONGOING AND FURTHER INTENDED CONTRAVENTION OF SECTIONS 20(J), 56(A), 57(1) & (3), 58(4), 61(1)(B), 62 AND 72 OF THE PHYSICAL AND LAND USE PLANNING ACT, 2019** **AND** **IN THE MATTER OF ACTIVITIES DELETERIOUS TO THE ENVIRONMENT ON L.R. NO. 209/20729 (ORIGINAL 209/870/3/5) – CITY PARK DRIVE, PARKLANDS** **AND** **IN THE MATTER OF: INHUMAN AND DEGRADING TREATMENT OF THE PETITIONERS AND THE GENERAL PUBLIC** **BETWEEN** **KARIM SHERALI KASSAM & 12 OTHERS..........PETITIONERS** **VERSUS** **EXOTIC REAL ESTATES LIMITED...............1ST RESPONDENT** **EXOTIC REAL VENTURES LIMITED…….…2ND RESPONDENT** **ALI ABDI……………………………….….……….…3RD RESPONDENT** **ABDI ALI………………………………..…………….4TH RESPONDENT** **NAIROBI CITY COUNTY GOVERNMENT……5TH RESPONDENT** **PATRICK ANALO AKIVAGA ....................... 6TH RESPONDENT** **STEPHEN GATHUITA MWANGI……………. 7TH RESPONDENT** **JOHN P. MALAWI…………………………………..8TH RESPONDENT** **M. LUMADETE……………………………………… 9TH RESPONDENT V. NDIDI……………………………………………..10TH RESPONDENT** **NATIONAL ENVIRONMENT MANAGEMENT** **AUTHORITY…………………………………………11TH RESPONDENT** **CATHELINE THAITHI…………………………..12TH RESPONDENT** **NATIONAL CONSTRUCTION** **AUTHORITY……………………………………..…13TH RESPONDENT** **JUDGMENTX** **Background** 1. Vide the Petition dated 2nd February, 2024, the Petitioners seek the following reliefs: 2. ***A declaration that excavation and other development activities on L.R. No. 209/20729 (Original 209/870/3/5)- City Park Drive, Parklands from 20th December 2023 was not approved by the 5th, 6th, 7th, 8th, 11th, 12th and 13th Respondents as at 20th December 2023, and that any resultant excavation and/or development on the said L.R. No. 209/20729 (Original 209/870/3/5) is illegal, irregular, null and void ab initio.*** 3. ***An order of permanent injunction stopping, halting, preventing and discontinuing any act or omission by the 1st, 2nd, 3rd and 4th Respondents, their agents/servants/proponents, or any other person, that is deleterious to the environment, which acts include undertaking excavation and other development activities on L.R. No. 209/20729 (Original 209/870/3/5)- City Park Drive, Parklands and the proposed development of 85 No. Residential Units on 19 Level Apartment Building, until and unless they first restore the degraded property land to its original condition or as near to its original condition as is possible as at 20th December 2023 within a period of ninety days from the date of the order.*** 4. ***A mandatory order compelling the 5th, 6th, 7th 8th, 9th, 10th, 11th, 12th and 13th Respondents jointly and severally to stop, prevent and discontinue any act or omission by the 1st, 2nd, 3rd and 4th Respondents, their agents/servants/proponents, or any other person, deleterious to the environment on L.R. No. 209/20729 (Original 209/870/3/5)-City Park Drive, Parklands.*** 5. ***An order that costs of restoration of L.R. No. 209/20729 (Original 209/870/3/5)- City Park Drive, Parklands to its original condition as at 20th December 2023 be personally met by the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th and 13th Respondents, jointly and/or severally.*** 6. ***General Damages.*** 7. ***Costs of the Petition.*** 8. The Petition was instituted on behalf of the owners, occupiers and residents of Muthaiga Valley Apartments, also known as Anahita Apartments, as well as the general public, the Petitioners contending that the dispute raises matters of considerable public interest. 9. Mr Karim Sherali, the 1st Petitioner, on behalf of the Petitioners, deponed that he, together with Kassan Nooreen Akhtar, are the owners of Apartment No. E7 erected on Nairobi Block 37/27 (formerly L.R. No. 209/871/13), situated along City Park Drive in Parklands, Nairobi which borders L.R. No. 209/20729 (Original No. 209/870/3/5), the subject property herein. 10. He explained that they acquired the apartment through the purchase of a long-term lease from Berkshire Properties Limited pursuant to a sale agreement dated 18th November 2016. The other Petitioners similarly acquired their respective units through various sale agreements executed between the years 2014 and 2023. 11. According to the Petitioners, one of the key factors that attracted and encouraged them to purchase and reside in their respective units was the serene and green environment surrounding the apartments, the proximity to institutions providing essential services, the quality infrastructure within the area, the clean and healthy neighbourhood, and the closeness of the area to Karura Forest. 12. The apartment complex, it was deposed, was surrounded by properties, including the subject property, that contained well-maintained century-old trees, flora and fauna, all of which contributed to the aesthetic beauty of the area and the enjoyment of a healthy environment and clean air. 13. The Petitioners averred that on or about 20th December 2023, they were surprised to observe an excavator being brought onto the subject property, following which excavation works immediately commenced and that the excavation materials and debris were continuously loaded onto trucks parked along City Park Drive and the adjoining lane, while the excavation and related development activities proceeded day and night, including on Sundays and public holidays. 14. The Petitioners contended that the excavation works extended across the entire property and adversely affected neighbouring premises, including the foundations and perimeter wall adjoining their apartment building. They further complained that the activities generated excessive dust, noise and excavation debris, allegedly due to inadequate dust control measures, thereby disrupting the residents’ peace and exposing them to environmental pollution. 15. They also averred that the works interfered with the drainage and sewer systems serving the apartment building, while heaps of soil and debris were deposited near the entrance to the complex and along City Park Drive, and that no efforts were made to manage the pollution. 16. According to the Petitioners, the excavation and development activities prompted them to conduct inquiries aimed at establishing the identity of the persons undertaking the works and the purpose of the project, and that those inquiries revealed that the 1st, 2nd, 3rd and 4th Respondents were the owners, developers and proponents of the ongoing development and held beneficial interests therein. 17. It is the Petitioners’ case that at the time excavation commenced, no signage had been erected or displayed at the site disclosing the particulars of the developers, the nature of the proposed development, or details of approvals allegedly issued by the relevant authorities, including the Nairobi City County Government, the National Environmental Management Authority (NEMA), the National Construction Authority (NCA), Nairobi City Water and Sewerage Company and the Water Resources Management Authority and that the absence of such signage persisted even at the time of filing the Petition. 18. On the 20th January 2024, the Petitioners stated, following complaints lodged with the Urban Planning and Development Department of the Nairobi City County Government, officers from the said Department, led by the 9th and 10th Respondents, visited the subject property and conducted investigations and that the officers established that the ongoing excavation and development activities had not been approved as mandatorily required under the **Physical and Land Use Planning Act**, the Building Code and the Nairobi City County By-laws. 19. Consequently, an enforcement notice serial number 2236 was issued directing the owners and developers to immediately cease all excavation works on the property; that the officers further marked and pasted notices at the entrance to the site indicating that the excavation activities were illegal and that the site had been closed for any development or excavation works. 20. It was deposed that despite the issuance of the stop order, excavation and development activities continued unabated, demonstrating an intention by the developers not to comply with the directives issued by the County authorities and that on 25th January 2024, while the Petitioners were holding a consultative meeting at the deponent’s residence, the 3rd and 4th Respondents herein requested to join the meeting and that the two Respondents informed them that they were the owners and developers of the ongoing project and disclosed that the proposed development consisted of 85 residential apartments comprising 3 and 4-bedroom units within a 19-level building. 21. It was deposed by the Petitioners that the Respondents informed them that the project had already received approval from the Nairobi City County Government and that they were in the process of obtaining licences and permits from NEMA and the National Construction Authority, and that they also produced what they described as a draft architectural drawing allegedly approved by the County Executive Committee Member in charge of the Built Environment and Urban Planning Sector. 22. According to the Petitioners, they were shocked by the disclosure, particularly the admission that not all the requisite approvals and licences had been obtained despite excavation and development works already having commenced. 23. The Petitioners averred that upon scrutinizing the draft architectural drawings, it is their opinion that if the proposed 19-level development comprising 85 apartment units is allowed to proceed, it will have severe adverse effects on their residences and the surrounding neighbourhood and that the proposed building will completely obstruct natural light to their apartments, permanently leaving their units in darkness. 24. Further, it was averred that it will also interfere with the free flow of natural air into and out of their residences, thereby subjecting them to stuffy living conditions and possible suffocation. In addition, they fear that the development will interfere with the drainage and sewer systems serving their building, exposing basement and lower ground spaces to flooding and other related calamities. They also noted that the proposed development would occupy the entirety of the subject property, leaving no open spaces for trees, vegetation or greenery. 25. The Petitioners state that they instructed their advocates to write demand letters to the relevant authorities and Respondents seeking the immediate stoppage of the excavation and development activities and demanding enforcement action against the developers, and that despite the letters, no meaningful action was taken and the excavation works continued unabated. 26. It is the Petitioners’ contention that the letter dated 11th January 2024 from the Green Nairobi Sector authorizing excavation and transportation of soil from the subject property, as well as a notification of approval of application allegedly issued on 20th July 2023 approving the proposed 85-unit residential development are illegal, irregular, null and void and incapable of legitimizing the ongoing excavation and proposed development. 27. The Petitioners stated that despite making requests for information concerning the activities being undertaken on the subject property, the 5th, 6th, 7th, 11th and 13th Respondents allegedly failed or refused to respond, thereby denying them access to information necessary to enable them seek redress before the County Physical and Land Use Planning Liaison Committee, the National Environment Tribunal and other relevant administrative bodies. 28. They contended that the ongoing excavation and development activities were being undertaken without lawful or genuine approvals from the relevant authorities and had adversely affected, and would continue to adversely affect, the physical and natural environment surrounding the subject property. 29. The Petitioners further asserted that the excavation activities had generated excessive dust, waste and noise pollution which had continuously affected their residences and the neighbouring community, causing discomfort, pain and suffering. They maintained that the proposed development comprising 85 apartments in a 19-level building poses a serious threat to their right to a clean and healthy environment and would occasion environmental degradation of immeasurable extent. 30. They also contended that if the development were allowed to proceed, it would increase the residential population in the area and result in uncontrollable human and traffic congestion. Additionally, they averred, the excavation and proposed development are being undertaken in a haphazard and negligent manner that threatens both their right to life and that of the general public. 31. They accuse the 1st, 2nd, 3rd and 4th Respondents of undertaking activities deleterious to the environment, while faulting the 5th to 13th Respondents for allegedly failing to stop the ongoing works and thereby aiding and abetting the continued violation of their constitutional rights. 32. Consequently, they urge the court to issue orders restraining further excavation and development activities on the subject property and compelling the relevant authorities to take immediate measures to halt any acts or omissions harmful to the environment. It is their position that the proposed 85-unit apartment development ought not to be approved unless and until the developers fully comply with all applicable statutory requirements, including the provisions of **Section 57** of the **Physical and Land Use Planning Act (PLUPA).** **The 2nd -4th Respondents’ response** 1. In response to the Petition, the 4th Respondent, Abdi Ali swore a replying affidavit dated 16th October 2025. He deponed that he is a director of the 2nd Respondent and duly authorized by the 3rd Respondent to swear the affidavit on behalf of the 2nd and 3rd Respondents. He noted that they are strangers to the allegations and statements made against the 1st Respondent. 2. He deponed that at all material times, the 2nd Respondent has conducted itself within the law, and has complied with all relevant statutory requirements governing property development, and that as at the time of filing the Petition, the 2nd Respondent had obtained all necessary licenses, permits, and consents prior to commencing construction. 3. He explained that these approvals demonstrate full compliance with **Sections 56, 57, 58, 62(1),** and **72** of the **PLUPA, Sections 3, 108**, and **138** of the **Environmental Management and Coordination Act (EMCA),** and **Section 23** of the **National Construction Authority Act (NCA).** As such, there is no legal or moral impediment to the Respondents' development of their property. 4. Mr. Abdi deponed that the proposed development is in full conformity with the Nairobi City County Development Control Policy (Sessional Paper No. 1 of 2022), which governs zoning and permissible development, and that under the said Policy, the City Park-Parklands area is designated a High-Density Mixed-Use Zone, allowing high-rise buildings of up to 20 floors on plots measuring 2,000 m² and above. 5. It was deposed that the 2nd Respondent's property falls squarely within this zone, and the proposed 19-floor development is fully compliant with the height, coverage, and plot ratio allowed. The project, he noted supports urban densification, efficient land use, and Vision 2030 goals, and its approvals were issued following all due processes. 6. It was urged that it is hypocritical and inequitable for the Petitioners to oppose a high-rise project while they themselves reside in high-rise buildings developed under similar zoning and approval regimes within the same area and that they cannot lawfully enjoy the benefits of urban vertical development while denying neighboring proprietors the same lawful rights, which amounts to discrimination and bad faith. 7. It was stated that the court in **Civil Appeal No. E160 of 2025 - Claire Kubochi Anami & Others (suing as officials of Rhapta Road Residents Association) vs County Executive Committee Member, Built Environment & Urban Planning, NCC & 19 Others,** emphatically held that courts will not interfere merely because neighbors or residents are uncomfortable with lawful high-rise development, and that planning and zoning are matters of policy, not subjective preference. 8. He explained that the Court of Appeal reaffirmed that lawful developments sanctioned by the relevant authorities should not be hindered by personal objections, and that the proper avenue for grievances lies in the statutory appeals mechanisms, not constitutional litigation. 9. It was urged that the Respondents, being registered proprietors, enjoy exclusive ownership rights, including the right to develop their property; that property rights must be respected and cannot be curtailed arbitrarily by any person, let alone the Petitioners who are not a statutory or judicial body and that the Petitioners' attempt to prevent lawful development amounts to an unconstitutional infringement of the Respondents' rights under **Article 40**, and should not be entertained. 10. It was noted that the 2nd Respondent’s conduct has at all times been guided by the rule of law, equity, and fairness; that the Petitioners, who have constructed similar high-rise buildings on their respective parcels, cannot selectively invoke **Article 10** to discriminate against them and that equality and non-discrimination under **Article 10** demand that all lawful proprietors within the same zoning area enjoy equal treatment before the law. 11. Mr. Abdi stated that **Article 19** recognizes that fundamental rights exist to preserve human dignity and equality, but subject to lawful limitations that respect the rights of others; that the Petitioners have failed to demonstrate how the 2nd Respondent's lawful development infringes their rights or freedoms and that the Petitioners cannot not rely on **Article 20** to elevate their interests above those of the 2nd Respondent or to restrict rights lawfully exercised by the Respondents. 12. With regard to the right of access to information under **Article 35** of the **Constitution,** Mr. Abdi deponed that the Petitioners had neither requested nor been denied any information by the Respondents. He further averred that the 2nd Respondent was a private entity and not a public body obligated to disclose information unless acting in a public capacity. In any event, he stated that information relating to approvals was available from the County Government, being the custodian of such records. 13. On the alleged violation of the right to a clean and healthy environment under **Article 42,** Mr. Abdi deponed that the 2nd Respondent’s development complied with all environmental standards and regulations, including the Environmental Management and Coordination Act (EMCA). 14. He asserted that no credible evidence had been presented to demonstrate any actual or threatened environmental harm arising from the Respondents’ activities. He similarly averred that all approvals and permits obtained by the 2nd Respondent were issued through lawful and fair administrative processes and that the Petitioners had not been subjected to any administrative action in violation of **Article 47** of the **Constitution.** 15. Mr. Abdi further deponed that **Article 70** of the **Constitution** is only applicable where actual environmental harm had been demonstrated, which, according to him, was not the case herein. He stated that mere apprehension or speculation did not meet the constitutional threshold and that no competent authority had made any finding of non-compliance against the 2nd Respondent. 16. In response to the allegations concerning statutory compliance, Mr. Abdi deponed that the Respondents had complied with the Environmental Management and Coordination Act by obtaining an EIA licence and implementing environmental safeguards recommended in the EIA Report prior to the suspension of the construction works. He further stated that no regulatory agency dealing with environmental matters had issued any notice of non-compliance or alleged any environmental offence against the Respondents. 17. He further averred that the Respondents had complied with the Physical and Land Use Planning Act by applying for, and obtaining development permission together with the requisite excavation permits from the Nairobi City County Government. 18. According to him, the 2nd Respondent holds a valid approved development plan and had complied with the statutory requirements for obtaining development permission, including submission of the prescribed application forms and payment of the requisite fees. He maintained that the Respondents had not contravened any provisions of PLUPA and were not guilty of any offence under the Act. 19. Mr. Abdi also deponed that the Respondents had complied with the National Construction Authority Act by engaging duly registered contractors and ensuring that all construction works were supervised by qualified professionals. He stated that proof of the requisite construction approvals had been availed to the court. 20. Lastly, Mr. Abdi deponed that the 3rd Respondent had been improperly joined to the proceedings as he was neither a director of the 2nd Respondent nor involved in the development in question. He maintained that the Petition is misconceived, frivolous and devoid of merit, and urged the court to dismiss the same with costs. **The 5th -10th Respondents’ response** 1. The 5th -10th Respondents, through Patrick Analo Akivaga, the Chief Officer Urban Development and Planning at the Nairobi City Council swore a replying affidavit on 22nd April, 2025. He deponed that the 7th Respondent is the current County Executive Committee Member (CECM) of the 5th Respondent's Boroughs, Administration and Personnel Sector. 2. He stated that he is aware that the 2nd Respondent submitted to the 5th Respondent application PLUPA-BPM-001880-N seeking permission to develop proposed 85 No. Apartments, 19 Levels Residential Development on Plot L.R No. 209/20279 which was approved on 20th July, 2023 and a notification of approval/development permission was issued on the same date. 3. It is the 5th-10th Respondent’s case that the grant of the development permission was made under Form PLUPA /DC/8 as prescribed by the Physical and Land Use Planning (General Development Permission and Control) Regulations 2021. However, the approval was subject to compliance with the stipulated conditions therein which included installation of a project's signboard indicating the plan registration number, names and contacts of the developers, consultants and contractors; and approval of an environmental impact assessment report/study by NEMA before commencement of works. 4. Additionally, it was deposed that the 5th Respondent issued a change of user Approval (from residential to commercial cum residential (apartments) on 26th January, 2024. However, the same was also subject to compliance with certain conditions stated therein, including that the project undertakes an EIA study and obtains a NEMA EIA License before commencement of any works. 5. Contrary to the conditions stipulated in the development permission and the change of user approval, it was deposed that the 2nd Respondent proceeded to commence construction activities on the project site without particularly installing a project signboard indicating the plan registration number, names and contacts of the developers, consultants and contractors, and without obtaining a NEMA EIA License. 6. According to Mr. Akivanga, because of the 2nd Respondent's failure to install a project signboard indicating the plan registration number, names and contacts of the developers, consultants and contractors, a team of enforcement officers visited the project site on 1st January, 2024, and found it to be non-compliant and proceeded to issue an enforcement notice of the same date. 7. Mr. Akivaga further averred that despite the issuance of an enforcement notice by the 5th Respondent requiring the 2nd Respondent to immediately furnish a Geotechnical Survey Report prepared by a registered engineer, no such report had been submitted to date. He further stated that notwithstanding the issuance of the excavation authority, the 2nd Respondent had failed to comply with the conditions attached thereto. 8. He stated that he is aware that the 2nd Respondent conducted an EIA Study on the proposed project and submitted a report dated 14th January, 2024 to NEMA, the 11th Respondent herein, on 15th January, 2024, and that **Sections 58** and **59** of the **EMCA** demand that an environmental impact assessment study report must be submitted prior to issuance of any license by NEMA. 9. Further, it was deposed that NEMA is required to cause to be published in the Gazette, and in at least two newspapers circulating in the area or proposed area of the project and over the radio a notice which shall state a summary description of the project; the place where the project is to be carried out; the place where the environmental impact assessment study, evaluation or review report may be inspected; and a time limit of not exceeding sixty days for the submission of oral or written comments on the environmental impact assessment study, evaluation or review report. 10. According to Mr. Akivanga, the 2nd Respondent has furnished before the court only the EIA Study Report submitted to the 11th Respondent, but has not furnished any proof that the said report has been approved by the 11th Respondent, and further that the notice required to be published has been published. 11. He explained that a proponent of a project, such as the 2nd Respondent herein, is precluded from carrying out any manner of activities on the project site until the 11th Respondent approves a submitted EIA Study Report and further issues an EIA License in that regard, and that the 2nd Respondent's activities are therefore illegal for lack of an approval of the EIA Study Report and an EIA License on the same. 12. For the foregoing reasons, he stated, the allegations made by the Petitioners to the effect that the Respondents have refused and or failed to uphold and defend the national values and principles of governance are unequivocally denied and that the 5th - 10th Respondents have been and remain fully compliant with their statutory obligations under the Constitution of Kenya, the Physical and Land Use Planning Act 2019 (PLUPA), and other relevant laws and regulations. 13. Mr. Akivaga noted that even though the 2nd Respondent is yet to comply with the enforcement notice, the 2nd Respondent is barred from conducting any further construction activities pending the determination of the appeal following the Order for status quo delivered on 21st March 2025 in Civil Appeal (Application) No. E668 of 2024. 14. He urged that even though the 5th Respondent has the mandate to enforce compliance where an enforcement notice has been ignored, doing so at this stage would be contrary to proper administration of justice as the proceedings herein are on the same issues and remain ripe for determination by the court. **The 13th Respondent’s response** 1. The 13th Respondent responded to the Petition through a replying affidavit sworn by Arch. Stephen Mwilu, the Manager, compliance dated on 28th October 2025. Arch. Mwilu explained that the 13th Respondent was established under **Section 3(1)** of the **National Construction Authority Act No. 41 of 2011** with the mandate of overseeing and coordinating development within the construction industry. 2. He deponed that under the Regulations, the proprietor of a construction project is required to apply in writing for registration with the 13th Respondent within thirty days after award of the construction tender to a contractor registered under the Act, and that upon receipt of the application, the 13th Respondent is required to issue a compliance certificate within thirty days. 3. In that regard, he stated, the 13th Respondent received a project registration application through its Online Project Registration System from the developer, Exotic Real Ventures Limited, the 2nd Respondent herein and that the 2nd Respondent furnished the Authority with all requisite documents required for registration of the project, including approvals from the 5th and 11th Respondents. 4. Mr. Arch. Mwilu further stated that following review and verification of the submitted documents, the 13th Respondent approved the project and issued compliance certificate registration No. 53127415710864 valid from 7th February 2024 to 7th February, 2026 in respect of the proposed development on L.R. No. 209/20729, Parklands. 5. He explained that the 13th Respondent performs an independent but complementary role alongside other agencies and regulators, including the 5th and 11th Respondents, and that its mandate is limited to ensuring compliance with construction standards at the construction site. 6. He emphasized that the issues raised in the Petition relate primarily to environmental matters, and planning, which fall under the mandate of regulators established under the Environmental Management and Coordination Act, and the Physical and Land Use Planning Act, 2019 respectively, and not under the regulatory mandate of the 13th Respondent. 7. He further averred that the Petitioners had failed to demonstrate that the 13th Respondent had neglected or failed to perform its statutory duties under the Act and Regulations. He denied the allegations that the Authority has abdicated or refused to perform its obligations and maintained that no reasonable cause of action had been disclosed against the 13th Respondent. **Submissions** 1. The Petitioners’ counsel filed submissions on 28th October, 2025. It was submitted that the Petitioners had adduced evidence showing that extensive excavation works on the suit property were being undertaken around 20th December 2023. 2. Counsel submitted that pursuant to PLUPA, excavation activities constitute “development” and therefore required prior development permission under **Section 57** of the **Act.** Reliance in this regard was placed on the case of ***Sangahani & 2 others (For and on Behalf of Parklands Residents Association) v Mbogo & 5 others; Mbogo & 8 others (Contemnor); & 108 Others (Interested Party) (Environment and Planning Petition E012 of 2025) [2025] KEELC 6920 (KLR) (14 October 2025) (Ruling).*** 3. Counsel submitted that none of the documents annexed by the 1st -4th Respondents constituted a valid development permission within the meaning of **Section 58** of the **PLUPA**, and the PLUPA (Development Permission and Control) (General) Regulations, 2021, and that the law prescribes a mandatory procedure for obtaining development permission, including submission of prescribed forms, plans, supporting documents, public notifications and consultations with relevant authorities and the public. 4. It was submitted that those requirements are mandatory, particularly given the repeated use of the word “shall” in the legislation. Cited in support was ***Republic v Cabinet Secretary, Ministry of Agriculture & Livestock Development; Ndungu (Ex Parte Applicant) [2023] KEHC 26613 (KLR)***. 5. Counsel further submitted that the 2nd–4th Respondents had failed to produce evidence showing how development permissions were applied for, processed or approved by the relevant planning authority. The “notification of approval of application, it was urged, did not constitute a valid development permit and could not regularize what was described as an unlawful development process. 6. That further, and as admitted by the 5th -10th Respondents, the Respondents had failed to comply with the conditions attached to the approval, including installation of a project signboard and procurement of an EIA license before commencement of works. 7. It was further submitted that no evidence had been produced to show submission of applications in the prescribed PLUPA forms or compliance with the consultative processes under **Sections 60** and **61** of **PLUPA**, which require circulation of development applications to various public authorities and consideration of public comments. Cited were the decisions in ***Ochola vs County Government of Kwale & Another [2023] KEELC 284 (KLR)*** and ***Wagitaha Holdings Limited vs Haldoor Real Estate Limited & 2 Others [2025] KEELC 4405 (KLR),*** and ***Mohamed Ali Baadi and others vs Attorney General & 11 others [2018] eKLR34.*** 8. Counsel additionally submitted that the NEMA license relied upon by the Respondents was allegedly issued on 28th August 2025, more than two years after excavation and development activities had already commenced on the property, and that similarly, the compliance certificate issued by the 13th Respondent was issued long after commencement of the works. Reliance was placed on ***Mac Gardens Limited & Another vs County Secretary, Nairobi City County Government & 3 Others [2023] KEELC 22447 (KLR)***. 9. On the issue of environmental rights, counsel submitted that the Constitution recognizes and protects the right to a clean and healthy environment under **Articles 42, 69** and **70** andthat **section 3** of the **EMCA** similarly guarantees the same. Counsel relied on several authorities which the court has considered. 10. The 2nd -4th Respondents filed their submissions on 10th December 2025. Counsel submitted that guided by the decision in ***Claire Kubochi Anami & Others vs CECM, Built Environment & Urban Page Planning, Nairobi City County Government & 19 Others (Civil Appeal No. E160 of 2025),*** the Petitioners were obligated to follow the alternative mechanisms set out in the law. 11. In this case, the Petitioners did not file a single objection, appeal, or complaint before the Liaison Committee, NEMA Tribunal, or NCA and their invitation to this court to invalidate lawfully issued approvals is procedurally impermissible and legally unsound. Also cited was ***Moses Mwicigi & 14 Others vs IEBC [2016] eKLR*** and ***Speaker of The National Assembly vs Honourable James Njenga Karume [2008] 1KLR 425.*** 12. It was similarly urged that the petition fails the precision requirement articulated in ***Anarita Karimi Njeru vs Republic [1979] eKLR*** and reaffirmed in ***Mumo Matemu vs Trusted Society of Human Rights Alliance [2013] eKLR*** and that the Petitioners in this case did not identify specific provisions breached by specific acts. Instead, they rely on broad assertions of environmental risk and alleged procedural lapses none of which were supported by evidence of legal foundation. Cited in support was ***Ken Kasinga vs Daniel Kirui & 5 Others [2015] eKLR***, where it was urged, actionable environmental harm must be supported by scientific or technical evidence. 13. On whether the Petitioners had established actual or reasonably foreseeable environmental harm within the meaning of **Article 70** of the **Constitution,** counsel submitted in the negative contending that the Petitioners had relied on generalized fears and speculation. Reliance was placed on ***Joseph Leboo vs Director Kenya Forest Service [2013] eKLR,*** where the court held that environmental petitions brought in the public interest must be founded on tangible and credible evidence rather than conjecture. 14. According to counsel, Nairobi City County’s Sessional Paper No. 1 of 2022 designates the area as a High-Density Mixed-Use Zone, permitting up to 20 floors; that the Respondent’s project is 19 floors and that the Petitioners presented no zoning map, policy, or regulatory document contradicting this. 15. Regarding public participation, it was stated the court in ***Republic vs County Government of Kiambu ex parte Robert Gakuru [2016] eKLR***, recognized that public participation is about opportunity, not unanimity. Also cited was ***Nairobi Metropolitan PSV Saccos Union Limited & 25 Others vs. County of Nairobi Government & 3 Others [2013] eKLR,*** where the court held that public participation does not require a uniform or rigid procedure, as the methods of facilitating participation may vary depending on the circumstances of each case. 16. The Respondents further contended that the Petitioners’ complaints regarding noise, dust, congestion and obstruction of light were unsupported by evidence and were ordinary incidents of construction, similar to those arising from the developments in which the Petitioners themselves resided. 17. They submitted that the public interest favours continuation of the project since the development would generate employment opportunities and provide affordable housing. They also argued that the Petitioners had failed to participate during the public participation process despite being afforded the opportunity to air their concerns. 18. The 5th–10th Respondents filed their submissions on 1st December 2025. Counsel submitted that the Petitioners had neither challenged nor sought revocation of the approvals and permits issued to the 2nd Respondent by them as required under **Section 61(3)** of **PLUPA.** They maintained that the approvals had been properly applied for and validly issued. They further pointed out that the 2nd Respondent had produced a NEMA licence and an EIA Report, while the 13th Respondent had confirmed that construction approval had been granted and a certificate of compliance issued. 19. According to the Respondents, none of those approvals had been challenged by the Petitioners and the court ought therefore to proceed on the basis that the same were validly issued. In support of that position, reliance was placed on the Court of Appeal decision in ***Mbaazi Avenue Residents Association & another vs Metricon Home Nairobi Company Limited & 2 others [2025] KECA 1593 (KLR)***. 20. The Respondents also submitted that the burden rested upon the Petitioners to demonstrate illegality or dereliction of duty on the part of the 5th, 11th and 13th Respondents in the issuance of the approvals. In that regard, they relied on the decision in ***Samuel Nyona Otonglo vs Nairobi City County Government; Walter Koni & 4 others Interested Parties] the [2020]eKLR***. 21. The 5th–10th Respondents submitted that once the requisite approvals had been issued, the county government’s role shifted to enforcement of compliance with the conditions attached thereto. They pointed out that the Petitioners themselves acknowledged that the 5th Respondent had issued an enforcement notice and halted further construction following complaints raised regarding the development. 22. The Respondents further relied on the court’s ruling of 15th August 2024, which permitted continuation of the construction subject to specified conditions, as confirmation that the approvals issued to the 2nd Respondent were lawful and valid. 23. Counsel submitted that the Petitioners’ fears regarding pollution, congestion, obstruction of light and air, and other environmental concerns were insufficient grounds to halt the development. They argued that once the 2nd Respondent obtained the requisite approvals and complied with the conditions attached thereto, the concerns raised by the Petitioners would be adequately addressed. 24. The Respondents submitted that the 2nd Respondent had produced a NEMA licence approving the EIA project report and that the EIA report itself sufficiently addressed the environmental concerns raised by the Petitioners. They contended that the Petitioners had failed to establish how the proposed development infringed their rights under **Articles 35** and **42** of the **Constitution.** 25. Counsel urged that that the proposed development conformed with the Nairobi City County Development Control Policy (Sessional Paper No. 1 of 2022), which they described as the operative planning policy within Nairobi City County. 26. Reliance was placed on the Court of Appeal decisions in ***Mbaazi Avenue Residents Association & another vs Metricon Home Nairobi Company Limited & 2 others [2025] KECA 1593 (KLR)*** and ***Claire Kubochi Anami & Others suing as Officials of Rhapta Road Residents Association vs County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County & 19 Others.*** **Analysis and Determination** 1. Having considered the pleadings and submissions, the issues that arise for determination are: 2. *Whether the petition is competent? and if so?* 3. *Whether the excavation and development activities undertaken on L.R. No. 209/20729 were commenced and carried out without the requisite statutory approvals, rendering the same illegal, irregular, null and void ab initio?* 4. *Whether the Petitioners have established constitutional violations warranting the declaratory, injunctive and restorative reliefs sought in the petition?* 5. *What are the appropriate reliefs, if any?* 6. The Petitioners seek various declaratory, injunctive and restorative reliefs arising from the excavation and proposed development being undertaken by the 1st–4th Respondents on L.R. No. 209/20729 along City Park Drive, Parklands. 7. They contend that the development was commenced without compliance with the requisite planning, environmental and construction approvals and that the ongoing excavation works have caused dust, noise, environmental pollution, interference with drainage and sewer systems, and structural effects on neighboring properties, including the Petitioners’ apartment complex. 8. The Respondents, apart from disputing the allegations, challenge the competence of the Petition, arguing that the dispute ought first to have been pursued before the relevant statutory bodies under the EMCA, PLUPA and the NCA Act. They further contend that the Petition does not meet the threshold of a constitutional Petition. 9. Beginning with doctrine of exhaustion, it is noted that this issue was determined by the court vide its ruling of 15th August, 2024. The same is therefore moot. Moving to the aspect of specificity,it is trite law that a party seeking redress for an alleged violation of constitutional rights must plead the alleged violation with clarity, specificity and particularity. 10. A Petitioner must identify the constitutional provision said to have been infringed, describe the manner of infringement, and demonstrate the nexus between the impugned conduct and the alleged violation. This principle was well captured in the oft-cited case of ***Anarita Karimi Njeru vs Republic (No. 1) [1979] KLR 154***. 11. Reiterating this, the Supreme Court in ***Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR***, emphasized that although **Article 22(1)** of the **Constitution** grants every person the right to institute proceedings for violation or threatened violation of rights, a party must clearly identify the specific rights alleged to have been infringed, the basis of the grievance, and the manner in which the infringement is said to have occurred. 12. As aforesaid, the Petitioners have instituted the present Petition seeking conservatory, declaratory and permanent injunctive reliefs arising from the developments, and proposed developments on L.R. No. 209/20729 along City Park Drive, Parklands. 13. The gravamen of the Petition is that the 1st–4th Respondents commenced excavation and development activities on the suit property without first obtaining and complying with the requisite planning, environmental and construction approvals and safeguards. 14. According to the Petitioners, the ongoing activities have generated excessive dust, noise and environmental pollution, interfered with drainage and sewer systems, adversely affected neighboring properties, and threatened their right to a clean and healthy environment. They further fault the 5th–13th Respondents for allegedly failing to enforce compliance with the applicable statutory and constitutional requirements. 15. The Petitioner has identified the constitutional rights which form the basis of their complaints, the acts complained of, and the specific Respondents against whom those complaints are directed. The Petition therefore discloses, with sufficient clarity, the nature of the grievances and the reliefs sought. Whether the Petitioner will ultimately prove the allegations is a different question altogether and goes to the merits of the Petition rather than its competency. 16. Accordingly, the court is satisfied that the Petition meets the minimum threshold of specificity required for a constitutional petition. 17. The Petitioners contend that the excavation and development activities undertaken on L.R. No. 209/20729 were commenced and carried out without compliance with the requisite planning, environmental and construction approvals prescribed under the Physical and Land Use Planning Act, 2019 (PLUPA), the Environmental Management and Coordination Act (EMCA) and related regulations rendering the activities void. 18. In particular, they assert that excavation works commenced on or about 20th December 2023 before the developers had obtained the requisite approvals, licences and permits, including an Environmental Impact Assessment licence from NEMA. The Petitioners further contend that no project signboard had been erected at the site disclosing the particulars of the development or approvals allegedly issued. 19. On their part, the 2nd–4th Respondents maintain that the development was lawfully undertaken and that all requisite approvals and permits were obtained. They rely on, *inter alia*, the notification of approval issued on 20th July 2023, the letter of authority to excavate dated 11th January 2024, the EIA report dated 14th January, 2024, the NEMA licence dated 28th August, 2025 and a certificate of compliance issued by the National Construction Authority on 7th February, 2024. 20. They maintained that the project complied with all the relevant statues and was undertaken within the applicable zoning framework governing the Parklands area. 21. The 5th–10th Respondents, however, while confirming that development permission under application no. PLUPA-BPM-001880-N was issued on 20th July 2023, maintain that the approval was conditional. In particular, the approval required installation of a project signboard indicating the particulars of the project and, more importantly, approval of an Environmental Impact Assessment study and issuance of an EIA licence before commencement of any works. 22. Additionally, the 5th Respondent issued a change of use approval (from residential to commercial cum residential (apartments) on 26th January, 2024. However, the change of user approval was also subject to compliance with certain conditions stated therein, including that the project undertakes an EIA study and obtains a NEMA EIA License before commencement of any works 23. They acknowledged that despite those conditions, the 2nd Respondent commenced excavation activities without erecting the requisite signboard and without obtaining a NEMA EIA licence. 24. The 5th–10th Respondents additionally confirmed that enforcement officers from the County Government visited the site and found the project to be non-compliant, leading to issuance of enforcement notice serial number 2236 directing the developers to immediately stop excavation works and furnish a Geotechnical Survey Report prepared by a registered engineer. 25. The 13th Respondent, on its part, maintains that its role is limited to registration and compliance oversight under the National Construction Authority Act. It states that it issued a compliance certificate on 7th February, 2024 after the developer furnished approvals from the relevant authorities, including the County Government and NEMA. The 13th Respondent asserted that approval of development plans and environmental compliance falls within the mandate of the County Government and NEMA respectively. 26. **Section 57(1)** of the **PLUPA** provides thatno person shall carry out development within a county without development permission granted by the respective County Executive Committee Member. **Section 58** further prescribes the process for obtaining such development permission, including submission of prescribed forms, plans and particulars, while **Section 58(5)** expressly provides that development permission remains subject to compliance with all other written laws. 27. It is not disputed that the 2nd -4th Respondents commenced excavation activities on the suit properties on or about the 20th December, 2023. Under **Section 2** of **PLUPA,** development is defined as carrying out works on land or making material changes in land use. 28. Guided by the decision in ***Sangahani & 2 others (For and on Behalf of Parklands Residents Association) vs Mbogo & 5 others; Mbogo & 8 others (Contemnor); & 108 Others (Interested Party),*** this court is satisfied that excavation activities undertaken on the suit property constituted “development” within the meaning of the Act and therefore required prior compliance with the applicable planning and environmental framework before commencement. 29. The evidence also demonstrates that notwithstanding that they had received a notification of approval of development permission dated 20th July, 2023, the excavation begun before compliance with the conditions set out therein, in particular erecting a project signboard displaying the particulars of the project and consultants, and obtaining an Environmental Impact Assessment licence before commencement of works. 30. The Petitioners’ evidence in this regard is corroborated with that of the 5th -10th Respondents. Mr. Akivaga, their deponent, admitted that after complaints were lodged, they went to the suit property and realized that works had commenced without the requisite signboards and without an EIA license having been issued. 31. Indeed, and admittedly so, apart from the approval development, all the other permissions referenced were issued after excavation had already commenced. The court is therefore satisfied that the excavation and development activities commenced before compliance with all the mandatory statutory and regulatory conditions. 32. Having so found, the next issue for determination is the legal effect of the approvals and licences that were subsequently issued by the relevant statutory agencies. As already noted hereinabove, excavation activities commenced before all the requisite approvals and licences had been obtained. The evidence, however, further demonstrates that the relevant approvals were eventually issued by the competent statutory bodies. 33. The question that therefore arises is whether the mere fact that excavation works commenced prior to the issuance of those approvals, by itself, renders the approvals subsequently granted unlawful, irregular, or liable to nullification. The court does not think so.To begin with, the court notes that the Petitioners do not seek any substantive reliefs aimed at quashing, nullifying or setting aside the approvals and licences issued by the relevant statutory bodies, including the development permission, excavation authority, EIA license and certificate of compliance issued by the National Construction Authority. 34. Even assuming that the court was to overlook the absence of specific reliefs directed at the approvals themselves, the material placed before the court would still fall short of the threshold required to nullify administrative approvals issued by statutory bodies acting within their respective mandates. 35. There has been no cogent, clear evidence tendered demonstrating fraud, procedural impropriety, illegality, irrationality or want of jurisdiction in the eventual issuance of the approvals themselves. In the absence of such evidence, the court is bound by the doctrine of regularity. 36. The Supreme Court in ***Export Processing Zone Authority & 10 others (Suing on their own behalf and on behalf of all residents of Owino-Uhuru Village in Mikindani, Changamwe Area, Mombasa) vs National Environment Management Authority & 3 others [2024] KESC 75 (KLR***), articulated the doctrine in the following terms: *“****In general, the presumption of regularity presupposes that no official or person acting under an oath of office will do anything contrary to their official duty, or omit anything which their official duty requires to be done. The doctrine provides a degree of deference to the actions or decisions made by government officials or institutions. It is grounded in the assumption that these officials act within the bounds of the law, follow established procedures, and operate in good faith when performing their duties. This presumption also relieves courts or reviewing bodies from conducting a deep, thorough review of every action or decision unless there is specific evidence to suggest wrongdoing, procedural lapses, or irrational behavior. (See The Presumption of Regularity In Judicial Review Of The Executive Branch Harvard Law Review pg. 2432). The idea is that, in the absence of clear evidence to the contrary, administrative actions should be presumed to be regular, lawful, and reasonable.”*** 1. Consistent with that position, the Court of Appeal in ***Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR***held that the burden of rebutting the presumption of regularity lies on the party challenging administrative action and that such presumption can only be displaced by cogent, clear, and uncontroverted evidence, and not by competing or conflicting interpretations of statutory or regulatory provisions. 2. Ultimately, the court finds that the approvals are legitimate. It is important to note that the approvals granted to the 2nd–4th Respondents remain subject of continuous supervision and enforcement by the issuing authorities, which retain the mandate to ensure compliance with the applicable planning, environmental and construction laws, regulations and conditions attached to the approvals. 3. Consequently, any violation of the approved conditions or applicable statutory requirements may attract enforcement measures, including suspension of works, issuance of enforcement notices, revocation of approvals, or any other sanctions permitted under the law. 4. The next issue is whether the Petitioners have established constitutional violations warranting the declaratory, injunctive and restorative reliefs sought in the Petition. The Petitioners principally rely on **Articles 42, 69** and **70** of the **Constitution** and contend that the excavation activities generated excessive dust, waste and noise pollution, interfered with drainage and sewer systems, and adversely affected their residences and the surrounding neighbourhood. 5. They further asserted that the proposed 19-level development comprising 85 apartment units would occasion environmental degradation, increased population pressure and uncontrollable traffic congestion within the area. 6. The court must distinguish between apprehended inconvenience and proof of actual constitutional violations warranting the reliefs sought. Beyond the Petitioners’ depositions, photographs and complaints, no expert reports, environmental audits, scientific studies, structural assessments or technical reports were produced demonstrating actual environmental degradation, structural instability, pollution levels or irreversible environmental harm attributable to the impugned development. 7. Similarly, although the Petitioners asserted that the proposed development would lead to uncontrollable human and traffic congestion and place pressure on the surrounding infrastructure, those assertions remained anticipatory and speculative in nature. No traffic impact assessment, environmental study, planning report or expert evidence was placed before the court demonstrating the extent of the alleged future harm or establishing that the development, as approved, was incapable of mitigation through existing regulatory mechanisms. 8. It is noted that the 2nd–4th Respondents eventually submitted an Environmental Impact Assessment (EIA) Study Report pursuant to which an EIA licence was subsequently issued by NEMA. The EIA report addressed various environmental concerns associated with the proposed development, including waste management, drainage, noise control, dust mitigation, traffic management and environmental safeguards during the construction and operational phases. 9. The EIA licence was issued subject to various conditions, and any breach thereof would warrant enforcement action by NEMA in accordance with the provisions of EMCA and the applicable Regulations, including suspension, cancellation, or other regulatory sanctions deemed appropriate. 10. The Petitioners also invoked **Articles 35** and **47** of the **Constitution,** alleging denial of access to information and irregular administrative action. In support thereof, they exhibited letters dated 26th January 2024, addressed to NEMA and the Nairobi City County. 11. In the letter addressed to NEMA, the Petitioners’ advocates requested it to confirm whether any licenses had been issued to the owners, developers or proponents of the suit development and, if so, to provide particulars thereof. The Petitioners further asserted that in the absence of a response within four days, they would conclude that no NEMA licence had been issued and that NEMA was knowingly failing to discharge its constitutional and statutory mandate by allowing the impugned development activities to continue. 12. Similarly, in the letter addressed to the Nairobi City County, the Petitioners asserted that county officers, including M. Lumadete and V. Ndidi, had visited the site on 1st January 2024 and allegedly confirmed that no approvals or permissions had been issued for the ongoing excavation and development works. 13. The Petitioners accused the County Government and its officers of deliberately failing and refusing to undertake enforcement action against the developers despite knowledge of the alleged illegal activities and threatened legal proceedings should the activities continue unabated. The contents of the said correspondence also demonstrate that the Petitioners had already engaged and communicated with various county officers regarding the status of the approvals and development activities. 14. As regards the communication to NEMA, the 2nd –4th Respondents responded to the concerns raised by the Petitioners and annexed the relevant approvals and project documentation. In the circumstances, the material placed before the court did not sufficiently demonstrate a formal refusal to provide information or prejudice of such nature as to establish a distinct and independent violation of **Article 35** of the **Constitution.** 15. Ultimately, the material before the court does not establish, to the requisite threshold, distinct and independent constitutional violations warranting the blanket nullification of the approvals, demolition of the development, or the extensive restorative orders sought. 16. In the circumstances, and for the reasons I have given above, the court finds the Petition to be unmerited. However, the Petition having been filed in the public interest, the same is dismissed with no orders as to costs. **Dated, signed and delivered virtually in Nairobi this 28th day of May, 2026.** **O. A. Angote** **Judge** **In the presence of;** Mr. Ndambiri for the Petitioner Mr. Mohammed for 2nd – 4th Respondent Ms Ashashs for Bake for 5th – 10th Respondent Ms Ogolla for 13th Respondent Court Assistant: Tracy