https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4034

Mazingira Greens Party of Kenya v Stellar Strategies Ltd & 2 others (Environment and Planning Petition E007 of 2026) [2026] KEELC 4034 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEELC 4034 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Planning Petition E007 of 2026 TW Murigi, J June 26, 2026 Between Mazingira Greens Party Of Kenya Petitioner and Stellar Strategies Limited 1st Respondent Nairobi City County Government 2nd Respondent National Environment Management Authority 3rd Respondent Ruling 1.By a Notice of Motion dated 17th February 2026, brought under Rules 4, 23, and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the Petitioner seeks the following orders:a.Spent.b.Spent.c.Spent.d.That pending the hearing and determination of the Petition, this Honourable Court be pleased to issue an order of injunction stopping the 1st Respondent, their servants and/or anyone acting on their directions from commencing and/or continuing construction of a residential block on Plot No. 1/475 (NAIROBI/BLOCK 19/62) along Maalim Juma Road in Kilimani area.e.That pending the hearing and determination of the Petition, this Honourable Court be pleased to issue an order of injunction stopping the 2nd & 3rd Respondents from issuing building licenses/permits to the 1st Respondent for construction of a residential block on Plot No.1/475 (NAIROBI/BLOCK 19/62) along Maalim Juma Road in Kilimani area.f.That in the alternative, pending the hearing and determination of the Petition, this Honourable Court be pleased to issue an order of injunction suspending any licenses/permits that may have been issued by the 2nd and 3rd Respondent's to the 1st Respondent for construction of a residential block on Plot No. 1/475 (NAIROBI/BLOCK 19/62) along Maalim Juma Road in Kilimani area.g.That this Honourable Court be pleased to grant any other order or direction as it may deem fit and just to make.h.That the costs of this application be provided for. 2.The application is based on the grounds appearing on its face together with the supporting affidavit of the Petitioner’s Chairman, John Kiplagat Bunei sworn on even date. The Applicant’s Case 3.The deponent averred stated that on 2nd January 2026, he came across Gazette Notice No. 82, issued at the request of the 3rd Respondent, inviting members of the public to submit comments on an Environmental Impact Assessment Study Report received regarding a proposed residential development on L.R. No. 1/475 (Nairobi/Block 19/62), along Maalim Juma Road in the Kilimani area of Nairobi County. 4.He averred that the proposed development by the 1st Respondent comprises a 21-storey residential block consisting of two basement floors and a ground and mezzanine floor designated for parking, a first floor to accommodate recreational facilities including a restaurant, shop, and gym, and 21 upper floors comprising 380 residential units made up of 128 one-bedroom units, 214 two-bedroom units, and 38 additional two-bedroom units, together with associated amenities and facilities. 5.He further averred that the area where the proposed development is located falls within a low-density controlled development zone, where only residential buildings of up to four storeys are permitted. 6.He stated that, considering the Petitioner's objectives of promoting the rule of law, good governance, and environmental protection, he immediately brought the proposed development to the attention of the Petitioner's officials who convened a meeting on 6th February 2026 to deliberate on the matter and raised the following concerns: that the proposed development, being situated in a controlled development zone restricted to a maximum of four storeys, was likely to strain the existing sewer and water infrastructure; that it was likely to overload existing public utilities in the area due to the high population it would introduce; that it was likely to overshadow adjacent buildings, thereby denying their occupants access to natural light and fresh air; that it was likely to diminish the aesthetic character of the neighbourhood; that it was likely to generate noise pollution both during construction and upon occupation; and that it was likely to adversely alter the microclimate of the area. The officials were of the view that the proposed development was contrary to the 2nd Respondent's zoning laws and would have a harmful effect on the environment to the detriment of the residents of Kilimani and the general public. 7.The deponent averred that the Petitioner's officials opined that, since the 3rd Respondent was conducting a process that was unlawful ab initio for disregarding the applicable zoning regulations, it could not be trusted to remedy its own illegality. The officials further noted that the 2nd Respondent had previously approved developments in violation of its zoning laws, and was recently cited by the Commission on Administrative Justice in that regard. 8.The deponent asserts that the 1st Respondent has already put up an advertisement at the project site inviting members of the public to reserve apartments in the proposed development by paying a deposit of 20% of the purchase price. 9.In conclusion, the deponent urged the Court to allow the application as prayed. The 1St Respondent's Case 10.The 1st Respondent opposed the application through a Preliminary Objection dated 18th March 2026 and a Replying Affidavit sworn by its Director, Hu Wei, on even date. 11.The 1st Respondent raised a Preliminary Objection that this Court lacks jurisdiction to hear and determine the Application and the Petition, on the following grounds:i.That the Petitioner has not exhausted the statutory and administrative processes available under Section 61(3) and (4) of the Physical and Land Use Planning Act and Section 129(1) of the Environmental Management and Co-ordination Act.ii.That the Petitioner has failed to set out with reasonable precision the threat complained of, the constitutional provisions alleged to have been infringed, and the manner of their infringement, the grievances raised being zoning and administrative matters under the said statutes, merely clothed as constitutional violations.iii.That the Environmental Impact Assessment process initiated by the gazette notice of 2nd January 2026 is yet to be concluded.iv.That the Petition and Application were filed prematurely before any justiciable cause of action had accrued.v.That the Application and Petition offend both the doctrine of ripeness and the doctrine of constitutional avoidance. 12.In the replying affidavit, the deponent asserts that the application is procedurally defective as it is not supported by an affidavit. He argued that although the application states that it is supported by the affidavit of Ngorongo Makanga, no such affidavit was served upon the 1st Respondent. Consequently, the application devoid of evidence and should be struck out with costs. 13.He further averred that the supporting affidavit sworn by John Kiplagat Bunei on 17th February 2026, which purports to support the application, is not the affidavit referred to therein and is therefore defective, as there is no application that seeks to rely upon it. It was contended that the affidavit of John Kiplagat Bunei should also be struck out. 14.Without prejudice to the foregoing, the deponent averred that the 1st Respondent acquired the suit property, being Nairobi Block 19/62, on 11th August 2025, for the purposes of the intended development. 15.He averred that before filing the Petition, the 1st Respondent obtained approval from Nairobi City County dated 7th August 2025 for the proposed 21-storey apartments on the suit property; approval from Nairobi City County dated 22nd August 2025 for a change of use from single dwelling to multi-dwelling units; approval from the Ministry of Lands and Physical Planning dated 9th December 2025 for the said change of use; and a licence from the National Environment Management Authority dated 25th February 2026 for drilling a borehole on the suit property for the proposed development. 16.He stated that the 1st Respondent conducted a comprehensive Environmental Impact Assessment study in accordance with Section 58 of the Environment Management and Coordination Act and submitted the report to the 3rd Respondent, who then issued the gazette notice of 2nd January 2026 calling for public comments. He maintained that the EIA licence from the 3rd Respondent has not yet been issued, as the process is ongoing. 17.The deponent argued that the Petition and Application were filed prematurely since neither the 2nd nor the 3rd Respondent had issued a final decision, licence, permit, or approval concerning the proposed development. 18.He argued that, under Section 61(3) of the Physical and Land Use Planning Act, a party aggrieved by a decision of the County Executive Committee regarding a development permission application must first appeal to the County Physical and Land Use Planning Liaison Committee, with an additional right of appeal to this Court under Section 61(4). It was also argued that Section 129(1) of the Environmental Management and Co-ordination Act provides an appellate mechanism to the National Environment Tribunal concerning decisions made by the 3rd Respondent which presumes the existence of a decision. The deponent argued in the absence of a final decision, the application is unripe, speculative, and improperly invites this Court to restrain a decision that has not yet been made. It was argued that the Petitioner's appropriate course is to participate in the ongoing statutory process and raise its concerns before the 3rd Respondent. 19.The deponent asserts that the Applicant has not established a prima facie case with a probability of success. He argued that the concerns outlined in the supporting affidavit are speculative and lack support from any expert report, technical study, NEMA findings, or site-specific evidence. He maintained that these matters are being addressed within the ongoing EIA process. It was further argued that the Ombudsman report does not makes any reference to the 1st Respondent, the suit property, or the proposed development, and is entirely irrelevant to the proceedings. Additionally, the petitioner's internal resolution is a private document that creates no legal rights, causes of action, or obligations against any third party. 20.Regarding the issue of irreparable harm, the 1st Respondent averred that the Applicant has not demonstrated any loss that cannot be compensated with damages and that the balance of convenience favours the 1st Respondent. It was stated that the 1st Respondent has expended a substantial amount preparing and submitting the EIA Study Report by licensed experts, conducting public consultations, paying professional fees for architects, engineers, and planners, and has received booking deposits from members of the public. He argued that granting an injunction at the pre-construction stage, without the safeguards inherent in the ongoing statutory approval processes, would cause immediate, irreversible, and catastrophic financial prejudice to the 1st Respondent. In conclusion, the deponent urged the Court to dismiss the application with costs. The 2nd Respondent’s Case 21.The 2nd Respondent filed a Replying Affidavit dated 31st March 2026 and a further affidavit dated 7th May 2026, sworn by its Deputy Director, Development Inspection and Planning Litigation, Wilfred Wanyonyi Masinde in opposition to the application. 22.The deponent averred that none of the Petitioner’s constitutional rights or freedoms have been violated or threatened. He averred that the registered owner of the suit property, initiated and pursued the proposed change of use from a single dwelling to multi-dwelling residential units in accordance with the applicable law. He argued that the Application is based on a misapprehension of the facts, the law, and the applicable procedure. 23.He averred that on 18th July 2025, the proposed change of use was advertised in the Daily Nation newspaper and through an on-site notice, in accordance with the provisions of the Physical and Land Use Planning Act, inviting objections or comments from members of the public, institutions, and all stakeholders within fourteen days, to be forwarded in writing to the County Government. He averred that no comments or objections were received from the Petitioner within the statutory fourteen-day period. 24.He asserted that on 30th July 2025, the 1st Respondent submitted a development application to the 2nd Respondent seeking a change of use from a single dwelling unit to multi-dwelling apartments. After the statutory period had expired and all representations had been considered, the 2nd Respondent approved the change of use on 22nd August 2025. He stated that the approval of the change of use regularised the development parameters applicable to the suit property and cannot be challenged except through proper legal procedures. 25.He averred that on 5th August 2025, the 1st Respondent, through Architect James Halu Kimanzi, submitted a development application to the 2nd Respondent proposing 360 apartments across 21 storeys on the suit property. Following a technical evaluation and compliance checks carried out fully in accordance with the Physical and Land Use Planning Act, 2019, and the applicable regulations thereunder, the 2nd Respondent approved the building plans on 7th August 2025. He contended that the approval process involved technical evaluation, compliance checks, and adherence to the zoning adjustments effected through the lawful change of use. He maintained that, the 1st Respondent exhausted all applicable procedures under the Physical and Land Use Planning Act, 2019, and the Physical and Land Use Planning Regulations. 26.He contends that the Petitioner cannot claim ignorance of the proposed development, because they failed to respond to the public notices that were properly issued, inviting comments and objections. He argued that the Petitioner's assertion that the proposed development violates zoning laws limiting development to four storeys is misleading and incorrect, since it does not consider the duly approved change of use and the planning permissions granted by the 2nd Respondent. He contended that zoning regulations are not static and are subject to lawful review, variation, and approval by the relevant planning authority upon application. He asserts that the 2nd Respondent has always acted within its statutory powers and in accordance with the law. 27.Regarding the application for injunction, the deponent argued that the Petitioner's apprehension of environmental harm is speculative, premature, and not supported by any expert evidence demonstrating actual or imminent harm. He maintained that the Petitioner has not established a prima facie case with a likelihood of success, has not shown that it would suffer any prejudice that cannot be compensated by damages, and that the balance of convenience does not favour granting the orders sought. 28.He argued that granting an injunction would unjustly interfere with a lawful development process conducted in accordance with statutory requirements and would cause immense prejudice to the Respondents, including disruption of lawful administrative processes and development rights. In conclusion, he urged the Court to find that the Petitioner has failed to meet the threshold for the grant of conservatory and injunctive orders and to dismiss the application with costs The Response 29.In a further affidavit dated 17th April 2026, the deponent averred that the reference to Ngorongo Makanga in the Notice of Motion was a typographical error made by the Petitioner's Advocate. He explained that Ngorongo Makanga, as the Petitioner's Secretary General, is not a stranger to the proceedings. He further averred that, following a resolution passed at a meeting of the Petitioner’s officials, he was duly authorised to sign and swear affidavits on behalf of the Petitioner. 30.The deponent argued that the Change of Use approval issued by the 2nd Respondent does not alter the height restrictions applicable to the suit property. He contended that the approval is specifically limited to a change from a single dwelling to multi-dwelling units, and cannot be interpreted as authorising the construction of a building five times the height permitted under the relevant zoning regulations. He emphasized that under Section 57 of the Physical and Land Use Planning Act, 2019, a formal rezoning or variation of development parameters requires an amendment to the Local Physical Development Plan through a process involving mandatory public consultation as outlined in the Act. He argued that a change of use application is not a substitute for that formal rezoning process. 31.In response to the Preliminary Objection, the deponent contended that this Court has the requisite jurisdiction to hear and determine the Petition, with the main issue being whether the 2nd Respondent acted ultra vires its statutory mandate. He stated that the issue before the Court is whether granting approval for a change of use legally constitutes a review or variation of existing zoning regulations, and he asserted that it does not. 32.In response to the 2nd Respondent's replying affidavit, the deponent averred that the Petitioner's objection is not directed at the change of use procedure itself, but concerns the decision to permit the construction of a 21-storey building in an area designated for a maximum of four storeys. He argued that the 2nd Respondent acted beyond the scope of its statutory powers by granting a change of use that effectively authorized a development of that height in such an area. 33.This application was canvassed by way of written submissions. The Petitioner’s Submissions 34.The Petitioner filed its submissions dated 17th April 2026. 35.On behalf of the Petitioner, Counsel argued that the threshold for granting conservatory orders in constitutional petitions differs from that required for ordinary injunctions. Counsel cited Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR and Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2012] eKLR. 36.On the prima facie case, Counsel submitted that the 2nd Respondent's Development Control Policy classifies the Kilimani area under Zone 4, permitting only residential apartments of a maximum of four storeys. Counsel argued that a 21-storey development constitutes a clear and blatant violation of that restriction. Counsel submitted that the Change of Use Approval approved a change from a single dwelling to multi-dwelling apartments and does not purport to lift or vary the applicable height restriction, and that it cannot be read as a wholesale suspension of the zone's height limitations. Counsel argued that to hold otherwise would be to conflate a change of use with a formal rezoning. 37.Counsel further submitted that the Building Plan Approval expressly conditions approval upon the development maintaining the residential character and densities of the area, a condition that a 21-storey building in a 4-storey zone cannot satisfy. Counsel submitted that under Section 57 of the Physical and Land Use Planning Act, 2019, a formal variation of development parameters requires a Local Physical Development Plan amendment incorporating mandatory public participation, while Section 55(f) of the same Act expressly requires that area zoning regulations must be considered when determining a change of use application. 38.Regarding public participation, Counsel submitted that a 14-day newspaper notice does not constitute meaningful, real and effective public participation as required by Articles 10(2)(a) and 69(1)(d) of the Constitution and Section 58 of the Physical and Land Use Planning Act, 2019, particularly for a development of this scale in a low-density residential area. To support this argument, Counsel relied on Institute for Social Accountability & Another v National Assembly & 4 Others [2015] eKLR. Counsel further submitted that the timeline of the approvals is troubling, the building plan application having been submitted on 5th August 2025 and approved two days later on 7th August 2025, and the change of use application submitted on 30th July 2025 was approved on 22nd August 2025 raising grave concern as to whether the requisite technical evaluations, interdepartmental consultations, and statutory compliance checks were conducted at all. 39.On the right to a clean and healthy environment, Counsel submitted that Article 42 of the Constitution guarantees every person the right to a clean and healthy environment, while Article 70 empowers the Court to enforce that right in the public interest. Counsel submitted that the right to a clean environment is a preventive right and that the threshold at this stage is not proof of actual harm but a legitimate apprehension of harm based on identifiable environmental risks, of which this court may take judicial notice. 40.Counsel further submitted that Section 58 of the Environmental Management and Co-ordination Act expressly prohibits the commencement of any development project that is likely to have a significant environmental impact without a valid EIA licence. It was submitted that no such licence had been issued as at the date of filing. Counsel relied on Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others [2012] eKLR to submit that at the interlocutory stage, a Court is not required to determine the merits of a petition. 41.Regarding the doctrine of ripeness, Counsel submitted that the orders sought are not anticipatory in nature, as the 2nd Respondent has already issued the Change of Use Approval that is the subject of the challenge. Counsel argued that the issue before the Court is whether the 2nd Respondent acted ultra vires its statutory mandate in granting the approval. Counsel relied on Nubian Rights Forum & 2 Others v Attorney General & 6 Others; Child Welfare Society & 9 Others (Interested Parties) [2020] eKLR to submit that any action outside the confines of the Constitution and the law should attract the Court’s intervention. 42.Regarding irreparable harm, Counsel argued that environmental damage and constitutional violations are inherently incapable of being adequately compensated with damages. Counsel submitted that once a 21-storey building is constructed in a low-density residential area, the environmental impact on the microclimate, neighbourhood character, infrastructure, and amenities cannot be reversed through damages. Counsel contended that if construction continues, third parties will acquire rights, incur financial commitments, and lay concrete foundations, making it practically impossible to restore the situation to its previous state. 43.On the balance of convenience, Counsel argued that if the orders are refused and construction proceeds, the public will be denied the opportunity for this Court to determine the legality of a development that is challenged on constitutional, planning, and environmental grounds. Once construction advances, that determination will be rendered academic. Conversely, if the orders are granted and the Petition ultimately fails, the only consequence for the Respondents is a temporary delay in the commencement of construction, which is fully compensable in damages. 44.In conclusion, Counsel urged the Court to grant the conservatory and injunctive orders sought with costs to the Petitioner. The 1St Respondent’s Submissions 45.The 1st Respondent filed its submissions dated 31st March 2026 and 16th June 2026. 46.On behalf of the 1st Respondent, Counsel identified two issues for the Court’s determination:a)whether this court has jurisdiction to hear and determine the Application and the Petition; and, in the alternative,b)whether the injunctive orders sought should be granted. 47.Regarding jurisdiction and the exhaustion of statutory remedies, Counsel submitted that this court does not have the requisite jurisdiction to hear and determine both the Application and the Petition. To support this point, reliance was placed on Owners of the Motor Vessel "Lilian S" v Caltex Kenya Limited [1989] KLR 1 and Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR. 48.Counsel submitted that the gravamen of the Petition is a challenge to the issuance of development permission, which relates to zoning and planning rather than a violation of the Bill of Rights. It was submitted that under Section 61(3) of the Physical and Land Use Planning Act, a party aggrieved by a decision of the County Executive Committee on a development permission application must first appeal to the County Physical and Land Use Planning Liaison Committee, with a further right of appeal to this Court under Section 61(4). To support this point, Counsel relied on Valentini v Farid & 3 Others [2025] KEELC 253 (KLR) and Speaker of the National Assembly v Karume [1992] KLR 21. 49.Counsel submitted that under Section 129(1) of the Environmental Management and Co-ordination Act, any person aggrieved by the grant or refusal of an EIA licence must first appeal to the National Environment Tribunal, with appellate jurisdiction vested in this court under Section 130(1). Counsel relied on Irungu v Hayer Marquis Limited & 2 Others [2025] KEELC 6602 (KLR) and Northern Block Residents Limited v Gigiri Mart Limited & 2 Others [2025] KEELC 1196 (KLR), where this Court dismissed an identical petition challenging a development approval and ongoing EIA process on the grounds of prematurity and failure to exhaust statutory remedies 50.Counsel submitted that the environmental and zoning concerns raised by the Petitioner are specifically addressed within the ongoing EIA statutory framework and that the Petitioner should submit its grievances to the 3rd Respondent through that process rather than prematurely invoking the constitutional jurisdiction of this Court. Counsel prayed that both the Application and the Petition be struck out in limine with costs. 51.Regarding the applicable legal test, Counsel submitted that the Petitioner's reliance on the threshold for conservatory orders outlined in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014] eKLR is misconceived, as the application seeks an injunction and not conservatory orders. Relying on Judicial Service Commission v Speaker of the National Assembly & Another [2013] eKLR, Counsel submitted that conservatory orders are constitutional remedies in rem distinct from injunctions, which are remedies in personam. Counsel further submitted that the Supreme Court in Gatirau Peter Munya expressly confirmed that the threshold for conservatory orders is not linked to the prospects of irreparable harm or high probability of success as is the case with injunctions. Counsel further relied on Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR to submit that parties are bound by their pleadings, and submitted that having prayed for an injunction, the Petitioner is bound by the test in Giella v Cassman Brown & Co Ltd [1973] EA 358 and cannot substitute the more permissive threshold for conservatory orders for the applicable legal test. 52.Regarding the prima facie case, Counsel relied on Nguruman Limited v Jan Bonde Nielson & 2 Others [2014] eKLR for the definition of a prima facie case. Counsel submitted that the environmental concerns outlined in the supporting affidavit are pure conjecture, unsupported by any expert report, NEMA findings, or site-specific technical study, all of which are thoroughly addressed within the ongoing EIA process. Counsel relied on Athi Paper Mills Limited v Dakawou Transport Limited [2022] KECA 1153 (KLR) to submit that where a prima facie case is not established, the remaining limbs of the test require no consideration. 53.Regarding irreparable harm, Counsel relied on Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 Others [2016] KEHC 7263 (KLR) for the definition of irreparable injury. Counsel submitted that the Petitioner's alleged harm is entirely speculative and capable of being addressed through the ongoing EIA safeguards or monetary compensation. Further reliance was placed on Mary Ariviza & Okotch Mondoh v Attorney General of Kenya & Another (EACJ Reference No. 7 of 2010, Ruling of 23 February 2011), where the East African Court of Justice held that no irreparable injury would be occasioned to applicants if the interlocutory injunction sought was denied, reasoning that any interim actions could later be undone with minimum injury if the applicants ultimately succeeded and that stopping the process would cause greater harm. 54.On the balance of convenience, Counsel relied on Joseph Ntombura v Godfrey Simiyu & 4 Others [2018] KECA 97 (KLR) and argued that the balance favours the 1st Respondent, as granting an injunction at the pre-construction stage could cause immediate, irreversible, and catastrophic financial prejudice. 55.Regarding the legal validity of the zoning instrument relied upon by the Petitioner, Counsel submitted that the Development Control Policy exhibited as MGP-4 has no binding legal force. Counsel relied on Claire Kubochi Anami & Others v County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County & 20 Others, (the "Rhapta Road Judgment"), in which the Court of Appeal held that the 2004 Zoning Guidelines, which originated under the repealed Physical Planning Act within a pre-2010 constitutional framework, were never county legislation passed by the County Assembly under Article 185 of the Constitution, and cannot supersede the post-2010 framework established by the Physical and Land Use Planning Act. The court further held that the 2021 Development Control Policy did not attain full legal force without County Assembly approval and gazettement. Counsel submitted that MGP-4, regardless of its characterisation, falls within one or both of those holdings and cannot establish a justiciable restriction on the proposed development. 56.Counsel further submitted that the operative planning framework is the Nairobi City County Development Control Policy, 2025, formulated pursuant to Section 17(b) of the Physical and Land Use Planning Act, 2019. Under this policy, the suit property falls within the Woodley/Kilimani Zone, designated as a high-density residential and commercial zone where 20 to 25 floors are expressly permitted for a plot of the suit property's dimensions. The intended 21-floor development is well within that range. Counsel contended that the Petitioner's argument regarding condition (k) of the Building Plan Approval, requiring maintenance of the residential character and densities of the area, also fails under the 2025 policy, which designates the zone as high-density, and that the residential character and densities that condition (k) protects are those of a high-density zone and not those of an obsolete instrument. 57.Counsel relied on Valentini v Farid & 3 Others [2025] KEELC 253 (KLR) to argue that once the relevant statutory and regulatory procedures have been followed, and competent authorities have granted the necessary approvals, the court will not readily intervene to nullify those approvals. 58.In conclusion, Counsel urged the Court to dismiss the application with costs. The 2nd Respondent’s Submissions 59.The 2nd Respondent filed its submissions dated 20th April 2026. 60.On behalf of the 2nd Respondent, Counsel submitted that although the principles governing interlocutory injunctions are well established in Giella v Cassman Brown & Co. Ltd [1973] EA 358, the Court should, where constitutional or public law issues arise and a public body is involved, consider whether the orders sought would serve the public interest. 61.On whether the 2nd Respondent acted ultra vires its powers, Counsel submitted that the 2nd Respondent's mandate to issue the approvals in question is clearly based on the Constitution and statute. Counsel cited the Fourth Schedule, Part 2, paragraph 8 of the Constitution of Kenya, 2010, which assigns to county governments the responsibility for county planning and development, including physical planning. 62.Counsel further relied on the Cities and Urban Areas Act, 2011, which mandates county governments to undertake integrated urban planning and management within cities and urban areas, and on Sections 56(1) and 57(1) of the Physical and Land Use Planning Act, 2019. Counsel submitted that under Part VI, Regulation 15(g) of the Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021, change of use applications must be advertised in a newspaper of nationwide circulation and by site notice, inviting objections within a specified period. Counsel submitted that the 2nd Respondent fully complied with all constitutional and statutory requirements to the letter. 63.Counsel relied on Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR to submit that no prima facie case has been established. Counsel submitted that the Petitioner failed to object during the statutory fourteen-day period and cannot now claim procedural impropriety or denial of participation in a process that was lawfully concluded and in which it slept on its rights. Counsel contended that both approvals were lawfully issued following due evaluation, technical assessment, and compliance checks, and that the Petitioner has placed no expert or technical evidence before this court to impeach those approvals, thereby failing to displace the presumption of regularity that attaches to administrative actions. 64.On irreparable harm, Counsel for the 2nd Respondent relied on Giella v Cassman Brown and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR to submit that an injunction will not issue unless the applicant demonstrates irreparable injury incapable of compensation in damages, and that such injury must be actual, substantial, and demonstrable rather than speculative. Counsel submitted that the Petitioner's allegations of environmental harm are unsupported by any expert evidence and that the Petitioner has failed to demonstrate any prejudice that cannot be compensated in damages. 65.On the balance of convenience, Counsel argued that both the balance of convenience and the public interest favour the 2nd Respondent, and that granting the orders sought would disrupt lawful administrative processes and cause prejudice to the 2nd Respondent as well as to the public interest in the orderly regulation of development. 66.Counsel submitted that the application is an abuse of the process of this Court. Counsel contended that the Petitioner's claim is based on a misapprehension of facts and was filed after the Petitioner failed to utilise the statutory objection mechanism available to it. Counsel argued that the Court should not assist a party that has failed to act within the framework provided by law and instead seeks belatedly to invoke the court's jurisdiction to halt a lawful process. 67.Counsel submitted that the Petitioner has failed to satisfy all three limbs of the Giella v Cassman Brown test and that the application is without merit and does not warrant the exercise of this court's discretion. In conclusion, Counsel urged the court to dismiss the application with costs. Analysis And Determination 68.Having considered the application, the respective affidavits, and the rival submissions, the following issues arise for determination:a)Whether the application herein is competent;b)Whether the preliminary objection is merited; andc)Whether the Petitioner has met the threshold for the grant of conservatory orders Whether the application herein is competent 69.The 1st Respondent has questioned the competence of the application on the grounds that it purportedly is supported by an affidavit sworn by Ngorongo Makanga, yet such an affidavit was neither filed nor served. The Petitioner attributed this discrepancy to a typographical error by its Advocate and instead relied on the affidavit of its Chairperson, John Kiplagat Bunei. 70.Rule 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules provides that a formal application under these rules shall be made by Notice of Motion and may be supported by an affidavit. Rule 24 further provides that an application for a conservatory or interim order may be made by way of a notice of motion or by informal documentation. It clear from the above provisions that an affidavit is a permissive and not a mandatory requirement. The Rules contemplate a degree of flexibility in the manner in which such applications are prosecuted. 71.Constitutional litigation is guided not only by procedural rules but also by the dictates of Article 159(2)(d) of the Constitution, which commands Courts to administer justice without undue regard for procedural technicalities. 72.In the matter at hand, the irregularity alleged is that the Notice of Motion named Ngorongo Makanga's affidavit as its supporting document, whereas the affidavit actually submitted and relied upon is that of John Kiplagat Bunei, the Petitioner's Chairperson. The deponent demonstrated, through the Gazette Notice dated 16th January 2026 and a resolution of the Petitioner submitted as an exhibit, that he is the current Chairperson of the Petitioner and has been properly authorised to swear affidavits, sign documents, and appear in Court on its behalf. 73.It is further noted that Ngorongo Makanga is the Secretary General of the Petitioner and is therefore not a stranger to these proceedings. The misdescription based on the evidence is merely a clerical error and nothing more. 74.No prejudice has been demonstrated arising from reliance on the affidavit of John Kiplagat Bunei. To strike out the application on this ground would be to elevate form over substance in a manner that Article 159(2)(d) expressly prohibits. 75.Accordingly, this Court finds that the application is competent. Whether The Preliminary Objection Is Merited. 76.The law on preliminary objection is well settled. A Preliminary Objection must be based on a pure point of law. In Mukisa Biscuits Manufacturing Company Ltd v West End Distributors Ltd [1969] EA 696, Law JA stated;“So far as I’m aware, a preliminary objection consists of point of law which have been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 77.In Oraro vs Mbaja (2005) eKLR Ojwang J (as he then was) described it as follows: -“I think the principle is abundantly clear. A Preliminary Objection” correctly understood is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. An assertion which claims to be a Preliminary Objection and yet it hears factual aspects calling for proof, or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true Preliminary Objection which the Court should allow to proceed.” 78.The six grounds in the Notice of Preliminary Objection, challenging the jurisdiction of this Court, can be summarized into three grounds.a)that the Petitioner has failed to set out with reasonable precision the threat complained of, the constitutional provisions alleged to have been infringed, and the manner of their infringement.b)that the Petitioner has not exhausted the statutory and administrative processes available under the Physical and Land Use Planning Act and the Environmental Management and Co-ordination Act.c)that the Petition and Application were filed prematurely before any justiciable cause of action had accrued. 79.Regarding the first ground, the Court in Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272, the Court held that:“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 80.The Supreme Court re-affirmed this principle in Communications Commission for Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR:“Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic [1979] KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have bene contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.” 81.The Petition herein challenges the proposed development of a twenty-one-storey residential building on Plot No. 1/475 (Nairobi/Block 19/62) within the Kilimani area. The Petitioner contends that the proposed development is inconsistent with the applicable zoning regulations and that the approvals already issued, as well as those in process, are unlawful. It is argued that licenses issued contrary to zoning restrictions constitute a violation of the national values and principles of governance under Article 10 of the Constitution, as well as the right to fair administrative action guaranteed under Article 47. 82.The Petitioner contends that the proposed development will cause environmental harm, including pressure on existing sewerage and water infrastructure, increase noise pollution, alter the area's microclimate, overburden public utilities, and degrade the character and aesthetic value of the neighbourhood, thereby threatening the right to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution. The Petitioner also argued that the Respondents actions have infringed, or threaten to infringe its constitutional rights and the public protected under Articles 10, 27, 42, 47, 69 and 70 of the Constitution. 83.The Petition specifies the impugned development, the approvals complained of, the constitutional provisions alleged to have been violated, and the factual basis upon which those alleged violations are founded. The pleadings, therefore, satisfy the threshold established in Anarita Karimi Njeru. 84.The 1st Respondent further contends that the Petition is premature because no justiciable cause of action has arisen. The material before the Court shows that the development permission dated 7th August 2025, a change of user approval dated 22nd August 2025, and a borehole drilling licence have already been issued. The 1st Respondent acknowledged that it is in the process of obtaining an Environmental Impact Assessment licence from the 3rd Respondent. 85.In light of the foregoing, the Court cannot conclude that the dispute is speculative or hypothetical. The approvals already granted constitute administrative actions that may be challenged. The alleged threat to constitutional and environmental rights is therefore not remote. The objection that the Petition is premature is therefore without merit. 86.On the final ground, the doctrine of exhaustion was defined in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR as follows:“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution. 87.The doctrine of exhaustion of remedies provides that when a dispute resolution mechanism has been established by a statute outside the mainstream courts, that mechanism should be exhausted before the Court’s jurisdiction is invoked. 88.This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated in the case of Speaker of National Assembly v Karume [1992] KLR 21, where the Court of Appeal held that:“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.” 89.Similarly, in the case of Geoffrey Muthiga Kabiru & 2 others – vs- Samuel Munga Henry & 1756 others [2015] eKLR, the Court of Appeal held that:“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 90.The doctrine of exhaustion is not absolute. Section 9(4) of the Fair Administrative Action Act expressly empowers the Court, in exceptional circumstances and where it is in the interest of justice, to exempt a party from the obligation to exhaust alternative remedies. 91.The scope and application of these exceptions have been elaborated in decisions such as Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] KEHC 10266 (KLR), where the court held that:“ 60.As observed above, the first principle is that the High Court may, in exceptional circumstances, consider and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted.The rationale behind this precept is that statutory provisions ousting Court’s jurisdiction must be construed restrictively. 92.The Supreme Court in Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) [2023] KESC 113 (KLR) endorsed a context specific and purposive approach to the doctrine. It asserted that there is nothing that precludes the adoption of a nuanced approach, that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. 93.Section 61(3) of the Physical and Land Use Planning Act requires any appeal against a development permission to be filed within fourteen days of the decision of the county executive member. The development approval annexed by the 1st Respondent is dated 7th August 2025, and that window has lapsed. To hold that the Petitioner was required to pursue that remedy before approaching this court would, on the facts, be to prevent access to justice entirely. That outcome is inconsistent with the constitutional values of access to justice and the protection of fundamental rights. 94.Section 129 of the Environmental Management and Co-ordination Act similarly provides a mechanism for persons aggrieved by environmental licensing decisions. It is not in dispute that the process of obtaining an EIA licence is still underway, and no decision susceptible to statutory challenge has yet been made under that framework. 95.More fundamentally, the dispute before this Court is not, at its core, a challenge to the merits of a development permission or an environmental licence. It is a challenge to the constitutional validity of the administrative actions that issued those approvals, based on alleged violations of Articles 10, 27, 42, 47, 69 and 70 of the Constitution 96.Further, the alleged environmental harm, including sustained pressure on sewerage and water infrastructure, noise pollution, alteration of the area's microclimate, and degradation of the neighbourhood's environmental character, are environmental and constitutional concerns that this Court, in the exercise of its jurisdiction, is particularly well placed to assess. 97.This court is therefore satisfied that exceptional circumstances have been established within the meaning of Section 9(4) of the Fair Administrative Action Act. The statutory mechanisms available to the Petitioner are neither adequate nor suitable for resolving the issues raised, and requiring their exhaustion would not serve the values enshrined in the Constitution. The objection on this ground is dismissed. 98.In light of the foregoing, this Court finds that the Preliminary Objection is without merit. Whether the petitioner has met the legal threshold for the grant of conservatory orders 99.. Article 23(3) of the Constitution empowers a Court to grant appropriate relief in any proceedings brought under Article 22 when there has been a violation or a threat of violation of a fundamental right or freedom. 100..The law governing the issuance of conservatory orders is well settled. In Judicial Service Commission v Speaker of the National Assembly & Another (2013) eKLR, conservatory orders were defined as follows:“Conservatory orders, in my view, are not ordinary civil remedies but are remedies provided for under the Constitution, the supreme law of the land. They are not remedies between one individual against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders, which may only attach to a particular person. 101.In Gatirau Peter Munya vs. Dickson Mwenda Kithinji & 2 Others (2014) eKLR, the Supreme Court outlined the principles governing the grant of interim conservatory orders as follows:“Conservatory orders bear a more decided public law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case, or “high probability of success” in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant causes.” 102.In Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & another [2016] eKLR, the Court summarized the principles for granting conservatory orders as follows:“a)An applicant must demonstrate that he has a prima facie case with a likelihood of success and that, unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.b)Whether a conservatory order is not granted, the petition alleging violation of or threat of violation of rights will be rendered nugatory.c)The public interest must be considered before the grant of a conservatory order.” 103.The 1st Respondent contends that the application seeks injunctive and not conservatory relief and therefore, the applicable threshold is outlined in Giella v Cassman Brown & Co Ltd [1973] EA 358. The Notice of Motion is expressly filed pursuant to Rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which govern applications for conservatory and interim orders in constitutional proceedings. The orders are sought pending the hearing and determination of the Petition that raises issues of constitutional and environmental law. The applicable threshold is accordingly that established in Gatirau Peter Munya and not the private law test in Giella v Cassman Brown. 104.The first issue for determination is whether the Petitioner has established a prima facie case warranting the grant of conservatory orders. It has been held that a prima facie case is not one that must succeed at the hearing of the main case, but rather one that discloses arguable constitutional issues. In Kevin K Mwiti & Others vs Kenya School of Law & Others (2015) eKLR, the Court held that:“……..A prima facie case, it has been held, is not a case which must succeed at the hearing of the main case. However, it is not a case which is frivolous. In other words, the Petitioner has to show that he or she has a case that discloses arguable constitutional issues.” 105.Two arguable issues emerge on the material before this Court. The first concerns the applicable zoning framework and whether the approvals issued are consistent with it. The 1st Respondent relies on the Nairobi City County Development Control Policy, 2025 as the operative planning instrument and contends that, under that policy, the suit property falls within a zone in which 20 to 25 floors are permissible. The 2nd Respondent relied on the change of use granted on 22nd August 2025 to justify its approvals. On the face of the record, there is an arguable issue of whether the instrument relied upon by the Respondents authorises the development as proposed. 106.The second concerns the adequacy of public participation in the EIA process. Regulation 21 of the Environmental Management and Co-ordination (Strategic and Integrated Environmental Assessments and Environmental Audits)(No. 2) Regulations, 2025 requires a proponent undertaking an environmental assessment study to hold at least two public consultation meetings at accessible venues, to give at least seven days' notice of those meetings, to post notices in strategic public places and in the vicinity of the project site, and to annex evidence of those consultations, including signed minutes, attendance lists, and photographs, to the EIA study report. There is an arguable issue whether the 1st Respondent complied with these requirements. 107.This Court is satisfied that the Petitioner has disclosed arguable constitutional issues. The prima facie threshold is met.The Petitioner contends that if construction of the proposed twenty-one storey development proceeds, the environmental harm occasioned to the Kilimani neighbourhood will be irreversible. The concerns identified include sustained pressure on sewerage and water infrastructure designed for a low-density residential area, noise pollution during construction and occupation, alteration of the microclimate, overshadowing of adjacent buildings, and degradation of the neighbourhood's aesthetic and environmental character. 108.The 1st Respondent contends that it has already expended substantial sums on the EIA study, professional fees, and has received booking deposits from prospective purchasers. These are matters that go to the balance of convenience rather than to the question of prejudice arising from constitutional violation. 109.The Petitioner has demonstrated a real danger of prejudice of a character incapable of adequate monetary compensation if the proposed development proceeds before the constitutional questions raised in the Petition are determined. 110.With respect to public interest, the issues raised in the Petition are not merely private grievances. They are questions of public law with direct implications on the integrity of the planning and environmental regulatory framework 111.The public interest, therefore, favours the grant of conservatory orders to preserve the status quo pending the hearing and determination of the Petition. 112.The upshot of the foregoing is that Application dated 17th February 2026, is merited and is hereby allowed in the following terms:-i.Pending the hearing and determination of the Petition, a conservatory order is hereby issued restraining the 1st Respondent, its servants, agents, employees, or any person acting under its instructions or on its behalf, from commencing or continuing any construction works on Plot No. 1/475 (Nairobi/Block 19/62) along Maalim Juma Road, Kilimani.ii.Costs of the Application shall be in the cause. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 26TH DAY OF JUNE 2026…………………………………….HON. T. MURIGIJUDGEIN THE PRESENCE OF:Ms Wesonga holding brief for Kirimi for the PetitionerAluoch holding brief for Imende for the 1st RespondentMs. Magero for the 2nd RespondentVena – Court assistant