https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5090

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCEPPET NO. E029 OF 2025** **IN THE MATTER OF: ARTICLES 10, 22, 23, 31, 35, 40, 42, 46 AND 47 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF: CONTRAVENTION OF FUNDAMENTAL RIGHTS** **AND FREEDOMS** **AND** **IN THE MATTER OF: VIOLATION OF THE PETITIONER'S RIGHT TO** **MOVEMENT AND RESIDENCE, PROTECTION OF** **RIGHT TO PROPERTY, RIGHT TO CLEAN AND** **HEALTHY ENVIRONMENT, ECONOMIC AND** **SOCIAL RIGHTS AND RIGHT TO FAIR ADMINISTRATIVE ACTION.** **AND** **IN THE MATTER OF: SECTION 3(3) OF THE ENVIRONMENTAL** **MANAGEMENT AND CO-ORDINATION ACT** **AND** **IN THE MATTER OF: CONTRAVENTION OF SECTION 4 OF THE FAIR** **ADMINISTRATIVE ACTION ACT, NO. 4 OF 2015** **AND** **IN THE MATTER OF: RULE 3 AND 4 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013** **BETWEEN** **MUTHAIGA HEIGHTS MANAGEMENT PLC …………………… PETITIONER** **VERSUS** **VIEW POINT HOMES LIMITED …………………………… 1ST RESPONDENT** **COUNTY GOVERNMENT OF NAIROBI …………………2ND RESPONDENT** **NATIONAL ENVIRONMENT** **MANAGEMENT AUTHORITY.……………………………3RD RESPONDENT** **AND** **KENYA URBAN ROADS AUTHORITY ……………………… INTERESTED PARTY** **JUDGEMENT** 1. By an Amended Petition dated 15th November 2024, the Petitioner seeks the following reliefs: * 1. ***A declaration that the Respondents have violated the national values and principles of governance as enshrined under Article 10 of the Constitution.*** 2. ***A declaration that the approvals issued by the 2nd and 3rd Respondents are null and void.*** 3. ***A declaration that the Respondents have violated the Petitioner's right to a clean and healthy environment as enshrined under Article 42 of the Constitution.*** 4. ***A declaration that the 2nd and 3rd Respondents have violated the Petitioner's right to fair administrative action as enshrined under Article 47 of the Constitution.*** 5. ***A declaration that the Respondents have violated the Petitioner's right to privacy as enshrined under Article 31 of the Constitution.*** 6. ***A declaration that the Respondents have violated the Petitioner's right to property as enshrined under Article 40 of the Constitution.*** 7. ***A declaration that the Respondents have violated the Petitioner's consumer rights as enshrined under Article 46 of the Constitution.*** 8. ***An order of prohibition restraining the 1st Respondent, whether by themselves, their servants, agents or any person claiming through or under them, from undertaking any construction works on all that property known as L.R No. 209/9943 until the approvals by the 2nd and 3rd Respondent are subjected to public participation.*** 9. ***An order setting aside the decision by the 2nd Respondent to issue the 1st Respondent with the permit approval reference No. PLUPA-BPM-003050-N.*** 10. ***An order setting aside the decision by the 3rd Respondent to issue the 1st Respondent with the permit approval reference No. NEMA/EIA/PSL29109.*** 11. ***General damages.*** 12. ***Special damages amounting to Kshs. 9,600,000/=.*** 13. ***The costs of this Petition be provided for.*** 14. ***Any further or other orders that this Honourable Court deems just and fit to grant.*** 2. The Petition is premised on the facts set out together with the Supporting Affidavit of Joseph Schwartzman, the Director, Shareholder and Chairman of the Petitioner’s Board, sworn on even date. **THE PETITIONER’S CASE** 1. The deponent averred that the Petitioner is a management company responsible for overseeing the operations of Muthaiga Heights, a residential development comprising 129 apartment units on 1.7 acres located on 6th Avenue, Parklands, Westlands, Nairobi. 2. He further averred that the 1st Respondent is constructing a 21-storey, 124-unit apartment complex on L.R No. 209/9943 (formerly L.R No. 209/30/10), a property adjacent to Muthaiga Heights. 3. He averred that in July 2024, the Petitioner received numerous complaints from residents and apartment owners of Muthaiga Heights regarding ongoing construction issues related to health, safety, privacy, and economic concerns arising from the construction. Consequently, he visited the site in the company of an architect, Mr. Jared Momanyi, whose observations regarding the road setback, beacon-to-beacon construction, density, river setback, and the structural capacity of the works formed the basis of this Petition. 4. The deponent asserts that the 1st Respondent's construction contravenes the planning law and approval conditions in several ways. He contended that the building does not comply with the required 9-metre road setback under Regulation 7 of the Physical and Land Use Planning (Building) Regulations, 2021, and condition (h) on the Change of User approval, thereby compromising road safety and the provision of utilities such as water, electricity, and sewerage services. 5. He further contended that the construction extends from beacon to beacon, without leaving any space between the boundary wall. He asserted that the construction violates condition (j) of the Change of User approval, which affects ventilation, natural light, fire safety and the privacy of Muthaiga Heights residents. 6. He averred that the development violates the applicable plot ratio and ground coverage, raising concerns about population density that strains the area's amenities, including water supply. He argued that the 21-storey, 124-unit approval was granted without due regard to the area's population density. He further averred that the construction is situated next to a river and does not comply with the required 10-meter setback from the neighbouring river, thereby exposing the area to landslides, soil erosion, flooding, and water pollution. He asserted that the scale of the development exceeds the capacity of the contractor's machinery, particularly in the absence of a crane, posing a risk of structural failure beyond the tenth floor. 7. Regarding procedural irregularity, the deponent averred that the construction began in May 2023 without approvals from the 2nd and 3rd Respondents. He asserted that the 2nd Respondent unlawfully granted development plans on 25th September 2023 without a Change of user approval, which was only granted on 13th October 2023; and that the 3rd Respondent's environmental licence, a precondition under condition (g) of the Change of User approval and condition (h) of the development approval, was not issued until 2nd November 2023, by which time construction had already begun. 8. The deponent further averred that the 1st Respondent had repeatedly breached the conditions of the EIA Licence, by undertaking construction outside the approved hours and by failing to implement adequate dust and noise control measures. He contended that the Environmental Impact Assessment was conducted without the participation of the affected parties, and no meaningful public participation preceded issuance of the Development approval by the 2nd Respondent. 9. He argued that although the 1st Respondent published a public notice on 19th September 2023 inviting objections to the Change of User application, the Petitioner's substantive objections, particularly concerning the absence of a sewer connection, were neither considered nor responded to by the 2nd Respondent. In light of the foregoing, the deponent contends that the 2nd and 3rd Respondents violated the national values and principles of governance under Article 10 of the Constitution. 10. The deponent asserts that the impugned approvals issued by the 2nd and 3rd Respondents, together with the 1st Respondent's development, violated several constitutional rights, namely: 11. Article 47, as the approvals were procedurally unfair and lacked written reasons. 12. Article 40 on protection of property due to the risk that riverside construction poses to the value and integrity of the Petitioner's property**.** 13. Article 42 due to reduced ventilation and light, the risk of landslides, soil erosion, floods, water pollution and waterborne disease. 14. Article 31 due to the proximity of the construction to the boundary wall. 15. Article 46 due to the risk to prospective purchasers of units in the 1st Respondent's development who might be unaware of the matters complained of; and 16. Article 10 due to lack of meaningful public participation by either the 1st or 2nd Respondent before the start of works and the issuance of approvals, respectively. 17. The deponent contends that the violations have caused the Petitioner to suffer losses, as tenants have issued termination notices and others have threatened to vacate Muthaiga Heights because of the construction. The Petitioner specified special damages, including loss of rental income for two units: Apartment 1110 at Kshs 225,000/= per month multiplied by 24 months, totalling Kshs 5,400,000/=, and Apartment 1102 at Kshs 175,000/= per month multiplied by 24 months, totalling Kshs 4,200,000/=. 18. In conclusion, the deponent urged the Court to allow the Petition as prayed. **THE 1ST RESPONDENT’S CASE** 1. The 1st Respondent opposed the Petition through the Replying Affidavit sworn on 20th January 2025 by Zamzam Hussein its General Manager. 2. The deponent averred that the Petitioner's reliance on the cited constitutional provisions is unfounded, as there were no proper grounds demonstrating how the 1st Respondent violated them. She argued that the Petition does not meet the evidentiary threshold for a constitutional petition as established in **Anarita Karimi Njeru v Republic [1976-1980] KLR 1272**, as it merely cites constitutional provisions without evidence linking them to the alleged act. 3. The deponent asserts that it was in fact, the Petitioner who violated Article 2(2) of the Constitution by claiming to make determinations as if it were a statutory body, despite lacking the constitutional or statutory authority to do so. Regarding Article 47, the deponent stated that the Petitioner acted contrary to the principles of fair administrative action by approaching the Court without first exhausting internal dispute resolution mechanisms available before the 2nd and 3rd Respondents and the Interested Party. 4. She further asserted that the Petitioner was attempting to deprive the 1st Respondent of the use of its property without any justification. She contended that the Petition is an attempt to use the Court to address a fault of the Petitioner's own making, specifically the construction of balconies along the boundary without considering the development of the adjacent plot. 5. Regarding the alleged violation of Article 42, she averred that the 1st Respondent’s development was within the riparian setback mandated by the Water Resources Authority, the statutory body authorised to define riparian boundaries. She contended that the Petitioner's property is situated closer to the river than that of the 1st Respondent's. 6. Regarding the alleged violation of Article 31, she averred that the 1st Respondent’s development has a ground coverage of 61.48%, which is below the permissible 80%. She argued that under the Nairobi City County Sessional Paper No. 1 of 2022 on the Development Control Policy, properties situated along 6th Avenue Parklands measuring at least 2,000 square metres are permitted up to twenty floors. It was averred that the 1st Respondent was providing affordable, quality housing to consumers, many of whom had already entered into purchase agreements and were making instalment payments. She asserted that no constitutional violation had been established and that the prayers sought were without merit. 7. On the factual averments in the supporting affidavit, the deponent averred that the chat record annexed to support the claim of multiple resident complaints does not show any such complaints, which in any event were not communicated to the 1st Respondent. She averred that the 1st Respondent's construction is situated further from both the road and the Karura River than the Petitioner's property. She contended that adequate openings had been provided to ensure lighting and ventilation in accordance with the approvals granted. She contended that it was incumbent upon the Petitioner to design its own development with due regard to future development on neighbouring properties. 8. Regarding the road setback, the deponent averred that Regulation 7(3) of the Physical and Land Use Planning (Building) Regulations, 2021 prescribes a six-metre building line for roads between nine and eighteen metres in width. It was argued that, since the access road is on a 15-metre reserve, the applicable setback is six metres, and not the nine metres claimed by the Petitioner. 9. Regarding the river setback, the deponent averred that WRA had issued pegging confirmation by letter dated 27th August 2024, confirming the 1st Respondent's compliance with the prescribed riparian coordinates. On unit numbers and zoning, the deponent averred that the development's 124 units were consistent with the zoning guidelines and the approvals granted and set out a calculation, by reference to the plot's area of 2,181 square metres, the applicable plot ratio of 16, and the permissible ground coverage, which is said to yield an allowable height of at least 20 floors, and up to 26 floors when calculated against its actual coverage, in reliance on Regulation 16 of the Physical and Land Use Planning (Building) Regulations, 2021. 10. Regarding construction safety, the deponent stated that a crane had been hired for site use. She argued that the regulatory requirement for crane operation applied only from the fourth floor and that premix concrete was being used to reduce noise and expedite the construction. She also stated that the 1st Respondent had placed dust covers over the property, as shown in the Petitioner’s images. She asserted that the 1st Respondent had taken measures to mitigate dust and noise, including dust covers visible in the Petitioner's photographic evidence. 11. Regarding public participation, she averred that an Environmental Impact Assessment incorporating public participation was completed in June 2023 and approved by the 3rd Respondent shortly thereafter. She pointed out that the Petitioner had not provided any evidence of the construction timeline it claimed, and that the Petitioner's pleadings were contradictory, alleging a lack of public participation while acknowledging that the 1st Respondent had issued a public notice inviting objections. 12. Regarding density and amenities, the deponent contends that the Petitioner's development, comprises three blocks of 13 floors, totaling 143 units, rendering the Petitioner's complaints regarding the 1st Respondent's 124-unit development inconsistent. 13. Regarding communications between the parties, the deponent averred that when the 1st Respondent considered it might exceed the bounds of its works, it sought the Petitioner's consent and desisted where consent was withheld, as evidenced by a letter dated 21st June 2024. 14. She further averred that this letter related only to site works and not to construction activities as outlined in the Petitioner's supporting affidavit. She explained that an earlier letter, which the Petitioner had relied upon, was superseded by the letter dated 21st June 2024, issued to correct an earlier oversight. 15. The deponent asserts that the Petition is brought in bad faith, given that the Petitioner’s directors, Mr Pravin Patel Mavji and Mr Patel Davsha Pravin, are also directors and shareholders of Elite Earthmovers Limited, a company that had unsuccessfully sought to enter into a joint venture with the proprietor of the subject property for the development of a similar residential project comprising 120 units. She therefore argued that the Petition is an attempt to frustrate the 1st Respondent for succeeding where the Petitioner's directors had failed. She maintained that the Petitioner approached the Court with unclean hands and is therefore not entitled to the relief sought. 16. On the issues of loss and damage, the deponent contends that the proceedings have caused it significant loss of approximately Kshs 200,000,000/= per month of halted construction in labour, materials, and sales expenses, and an additional Kshs 31,600,000/= in loss of rental income due to the delay. She argued that the 1st Respondent had sold units to third-party buyers who were making instalment payments based on the agreed completion date. She argued that a permanent injunction would serve no useful purpose other than disrupting the construction schedule and risking breach of contract with both buyers and the proprietor. 17. In conclusion, she urged the Court to dismiss the Petition with costs. **THE 2ND RESPONDENT’S CASE** 1. The 2nd Respondent opposed the Petition through the replying affidavit sworn on 27th January 2025 by Wilfred Masinde, the Deputy Director, Planning and Compliance in the Urban Development and Planning Office of the 2nd Defendant. 2. The deponent averred that the Petitioner had failed to establish any legal or factual grounds to justify the setting aside of the Notification of Approval issued by the 2nd Defendant. He asserted that the decision to grant the approval was made in accordance with the applicable law and that the Petitioner failed to demonstrate any unlawful infringement of its rights. 3. He asserted that the 2nd Respondent complied with Sections 36, 37, 40, 42, 43, 45, 46, 51, 56, 57, and 61 of the Act, which outline the responsibilities and procedures for preparing, amending, and reviewing physical and land use development plans. He deposed that the 2nd Respondent had prepared a local physical and land-use development plan covering zoning, urban renewal, infrastructure, and building regulations under Section 45, as well as the exercise of development control under Section 55 in receiving and assessing development applications based on the approved plans. 4. He averred that the 2nd Respondent considered the zoning of L.R No. 209/9943 before approving the 1st Respondent's plans. He argued that the Notification of Approval dated 25th September 2023 was issued in accordance with the Act and disputed the Petitioner's claims of irregularity. 5. The deponent asserts that the Petition does meet the threshold for a constitutional petition. He stated that paragraph 6 of the supporting affidavits, insofar as it relied on the opinion of the architect Mr. Jared Momanyi, was inadmissible in the absence of a sworn affidavit or report by Mr. Momanyi capable of being tested through cross-examination. 6. He argued that the Petitioner did not present any evidence to demonstrate that the 2nd Respondent acted unlawfully, irrationally, outside its authority, abused its power, or engaged in misconduct when issuing the Notification of Approval. Additionally, the Petitioner failed to prove the amount of damages claimed against the 2nd Respondent. 7. He averred that the Petitioner approached the Court with unclean hands, having tendered no evidence of any prior complaint to the 2nd Respondent demanding reasons for the Notification. He further averred that the Petitioner did not comply with the doctrine of exhaustion before instituting the Petition. He emphasised that the Petitioner bears the burden of proving its allegations, which it failed to do regarding the infringement of its constitutional rights by the 2nd Respondent. 8. In conclusion, he urged the Court to dismiss the Petition with costs, **THE 3RD RESPONDENT’S CASE** 1. The 3rd Respondent opposed the Petition through the replying affidavit sworn on 23rd September 2024 by Catherine Thaithi, the County Director of Environment, on behalf of the National Environment Management Authority. 2. The deponent asserts that the 1st Respondent lawfully obtained EIA licence No. NEMA/EIA/PSL/29109, on 2nd November 2023. 3. She averred that the Authority received a project report prepared by Walter Omwenga, a licensed expert on 12th September 2023, on behalf of the proponent. She averred that the Authority subsequently circulated the report to the relevant lead agencies and committees for their opinions, in accordance with the law. 4. She further averred that the Authority received complaints and objections from Muthaiga Heights regarding the proposed development through a letter dated 23rd September 2023 along with a list of objecting members. Upon confirming that construction had begun without an EIA licence, the Authority issued an Improvement Notice stopping all construction pending issuance of the licence. She further averred that, following a Multi-Sectoral Agency Consultative Committee meeting, the Authority received a letter dated 12th September 2023 directing that further illegal works on L.R No. 209/9943 cease pending approval from the Nairobi City County. 5. She further averred that the Authority received a further complaint by a letter dated 6th December 2023 from Frederick Ballah, the Petitioner's Facility Officer, raising concerns about construction outside authorised working hours. She explained that the Authority addressed this matter in a meeting held on 7th December 2023, where it was agreed that the proponent would seek approval for extended works on a need basis and would ensure the Petitioner was consulted. She averred that on 27th March 2024, the Authority received an email from the 1st Respondent enclosing a signed and stamped letter demonstrating that the Petitioner had been notified of and had consented to a casting exercise scheduled for 29th March 2024. 6. The deponent denied that the Authority violated the Petitioner's right to fair administrative action as claimed in the Petition. 7. The Petition was canvassed by way of written submissions. **THE PETITIONER’S SUBMISSIONS** 1. The Petitioner filed its submissions dated 18th March 2026. 2. On behalf of the Petitioner, Counsel outlined the following issues for the Court’s determination: a) Whether this Honourable Court has jurisdiction to entertain the Petition; *b) Whether the requisite development approvals were obtained before commencement of the project;* *c) Whether the constitutional and statutory requirements for public participation were met prior to issuance of the EIA licence; and* *d)Whether the impugned development conforms to the requirements of a clean and healthy environment.* 1. Regarding the first issue, Counsel submitted that the 1st Respondent's contention that the suit was improperly filed before this Court, and should have been brought before the statutory authority established to handle challenges to the 2nd Respondent's licensing decisions, is misconceived. Counsel relied on **Agatha Jeruto Kimaswai v Attorney General & 3 Others [2021] eKLR**, **Dominic G. Ng'ang'a & Another v Director General, National Environment Management Authority & 4 Others [2020] eKLR**, **William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR** and **ELC Petition E004 of 2023, Raphael Nzomo v Ontime Real Estate Ltd & 2 Others** to submit that this Court has jurisdiction to hear and determine the Petition. 2. Regarding the second issue, Counsel submitted that the 1st Respondent commenced the project without obtaining the requisite approvals, thereby violating the right to a clean and healthy environment under Article 42 of the Constitution. Counsel relied on Regulations 4 and 15 of the Physical and Land Use Planning (Development Permission and Control) Regulations(General), 2021, to submit that a Change of User approval is necessary when land is used for purposes other than those for which it is registered, that development permission cannot be applied for without an accompanying Change of User approval, and that an application for Change of User must be preceded by publication of a notice in a newspaper of nationwide circulation for at least fourteen consecutive days, which the 1st Respondent failed to do. 3. Counsel submitted that the sequence in which the approvals were obtained was irregular for the following reasons: the development permit was granted by the County Government on 25th September 2023 before the Change of User approval was obtained on 13th October 2023; that construction had commenced in May 2023, before either approval was in place, in violation of condition (g) of the Change of User approval which made the approval conditional on the developer first obtaining an EIA licence. It was submitted that, in violation of Regulation 4 of the Environmental (Impact Assessment and Audit) Regulations 2003, the 1st Respondent did not conduct an EIA before commencing the project, as the license was issued on 2nd November 2023. 4. Counsel submitted that this sequence was corroborated by the 3rd Respondent's letter dated 12th September 2023, the Environmental Inspectors Integrated Tool record in the 3rd Respondent's bundle and the report prepared by Planner John Mbau dated 8th November 2024. Counsel further submitted that 1st Respondent failed to obtain approval from KPLC or NWSC before commencing the construction, contrary to condition (l) of the development approval. It was submitted that the 1st Respondent failed to construct reinforced concrete walls to the satisfaction of the Multi-Sectoral Agency Consultative Committee and the Engineers Board of Kenya as directed. 5. Regarding the plot ratio and ground coverage, Counsel submitted that the special conditions endorsed on the title restricted the property to residential use and prohibited development covering more than 50% of the land. Counsel argued that the 1st Respondent violated this condition by constructing on the entire plot. Counsel further submitted that this exceeded the 75% ground coverage ratio permitted for residential buildings in Parklands under the Nairobi County Zoning Guidelines. 6. Regarding the riparian setback, Counsel relied on the report of Planner John Mbau, to submit that the 1st Respondent had left a setback of approximately 4 metres from the highest water mark, against the 10 to 30 metres prescribed under the Water Act, 2016, and the Physical and Land Use Planning Regulations, 2021. 7. On zoning and height, Counsel submitted that the EIA licence issued by the 3rd Respondent on 2nd November 2023 authorised a twenty-storey building, while the development approval granted by the 2nd Respondent permitted twenty-one floors, exceeding the maximum of fifteen floors prescribed for Zone 3D-3F, Parklands under the Development Control Policy, 2021. 8. On the issue of public participation, Counsel submitted that Articles 69(1)(d) and 35 of the Constitution, Section 59 of EMCA, and Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003 prescribe minimum standards for meaningful public engagement, before an EIA Licence can be issued. Counsel submitted that the requirements include publicising the project through posters and newspaper notices over two successive weeks, radio announcements, holding of at least three public meetings, timely notice of such meetings, and the designation of a qualified coordinator to record public comments and an opportunity to the public to comment on the ESIA Study Report. 9. Counsel submitted that no evidence was presented demonstrating compliance with any of these requirements. Counsel argued that no public meetings were held, no qualified coordinator was appointed and the Petitioners objections contained in the letter dated 23rd September 2023 were never addressed before the EIA Licence was issued. Counsel submitted that it remained unclear how the EIA licence was issued. Counsel cited **Poverty Alleviation Network & Others v President of the Republic of South Africa & 19 Others, CCT 86/08 [2010] ZACC 5**, to submit that meaningful public engagement is essential to the legitimacy of administrative decision-making and that a decision reached without consulting the public cannot be an informed one. 10. Based on the foregoing, Counsel submitted that the impugned approvals violated Article 10 of the Constitution. Counsel further submitted that the 2nd and 3rd Respondents violated Article 47 by granting approvals that are inconsistent with the applicable zoning policy and by failing to furnish the Petitioner with written reasons for the administrative action taken, notwithstanding the Petitioner's substantive objections. 11. Regarding the right to a clean and healthy environment, Counsel submitted that construction within a riparian reserve is strictly regulated under Kenyan law as a matter of public health, ecological safety and waste management. Counsel contended that the development, having proceeded on the strength of irregular approvals, undermined the Petitioner's rights under Article 42 and the principle of sustainable development under Article 60(1) of the Constitution. To support this argument, Counsel relied on **Adrian Kamotho Njenga v Council of Governors & 3 Others [2020] eKLR** and **Sangahani & 2 Others (for and on behalf of Parklands Residents Association) v Nairobi City County Government & 5 Others; 108 (Interested Party) [2025] KEELC 6985 (KLR),** 12. Counsel urged the Court to restrain further development until the 2nd Respondent's complies with the statutory obligations for the Parklands area. Counsel also relied on **Communist Party of Kenya v Nairobi Metropolitan Services & 3 Others; National Environment Management Authority & Another (Interested Parties) [2022] eKLR,** where the Court found that construction activity preceding the grant of an EIA licence contravened Section 58 of EMCA and Regulation 4(1) of the Environmental (Impact Assessment and Audit) Regulations, 2003, and that the developer's indifference to the impact of the development and to NEMA's eventual decision amounted to a violation of Article 42 of the Constitution. 13. Counsel invited the Court to take judicial notice of recent incidents of building collapses reported in Nairobi in 2026, specifically in Karen, South C, Shauri Moyo and Westlands, with the latest incident on 19th March 2026, as evidence of the public safety risk posed by irregularly sanctioned developments. In conclusion, Counsel urged the Court to allow the Petition as prayed. **THE 1ST RESPONDENT’S SUBMISSIONS** 1. The 1st Respondent filed its submissions dated 27th February 2026. 2. On behalf of the 1st Respondent, Counsel outlined the following issues for the Court’s determination: *a) Whether this Court has jurisdiction**in light of the doctrine of exhaustion;* *b) Whether the Petitioners have legal standing and have approached the Court with clean hands;* *c) Whether the 1st Respondent complied with the statutory and regulatory framework governing development approvals;* *d) Whether the Petitioners have demonstrated any violation, infringement or threat to their constitutional rights;* *e) Whether the Petition meets the threshold of a constitutional petition;* *f) Whether the zoning, land use designation and planning policies applicable to the suit property support or prohibit the 1st Respondent’s development;* *g) Whether the Petitioner’s allegations regarding lack of public participation and breach of fair administration action have any factual or legal basis;* *h) Whether the Petitioner’s claim of breach of Article 35 was sustainable, and* *i) Whether the Petition is frivolous, vexatious or an abuse of process.* 1. On locus standi, Counsel submitted that the Petitioner has not demonstrated any direct and identifiable interest distinct from that of the general public, nor produced any resolution or authorization from the affected residents authorizing it to file this Petition. Counsel relied on **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR** to submit that constitutional litigation is not available for addressing generalized grievances without a demonstrable nexus between the Petitioner and the alleged violation. 2. Counsel submitted that the Petitioner's standing was further compromised by its own conduct in residing in and benefiting from a high-rise development approved under the same planning regime it now seeks to challenge. Counsel cited **Caliph Properties Limited v Barbel Sharma & Another [2015] eKLR** to invoke the equitable maxim that he who comes to equity must come with clean hands. 3. On the issue of exhaustion, Counsel submitted that the Petitioner failed to invoke the statutory dispute mechanisms established under Section 78 of PLUPA, the National Environment Tribunal, and the National Construction Authority's internal mechanisms, without pleading or proving any exceptional circumstance justifying departure from the doctrine. To support this argument, Counsel relied on **Speaker of the National Assembly v Hon. James Njenga Karume [2008] 1 KLR 425**, **Moses Mwicigi & 14 Others v IEBC [2016] eKLR** and **Claire Kubochi Anami & Others v County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County & 19 Others (Civil Appeal No. E160 of 2025).** 4. Regarding compliance with the statutory framework, Counsel submitted that the 1st Respondent had satisfied the provisions of Sections 56, 57(1), and 58 of the PLUPA, which govern development permissions and the approval of architectural and structural plans. Counsel argued that the Petitioner did not challenge these approvals through the statutory mechanisms under Sections 61 and 72 of the PLUPA, but instead turned a technical planning dispute into a constitutional Petition. 5. On zoning, Counsel submitted that the Nairobi City County Sessional Paper No. 1 of 2022 designates Parklands area as a High-Density Mixed-Use Zone, permitting up to 20 floors. Counsel submitted that the Petitioner failed to produce any conflicting zoning document demonstrating otherwise. Counsel argued that zoning is a matter of technical expertise and Courts should not interfere unless the decision is shown to have been obtained illegally. To support this argument,Counsel relied on the decision in **Claire Kubochi Anami& 2 others v County Executive Committee Member Built Environment and Urban Planning Nairobi City County & 20 others,** where the Court of Appeal held that although the 2021 Development Control Policy, does not have the legal force, it remains the legitimate administrative guideline. Counsel contended that residents cannot veto development projects solely on the basis of their scale. 6. Regarding environmental compliance, Counsel submitted that the 1st Respondent obtained a valid EIA licence and that no enforcement notices had been issued under Sections 108 or 138 of EMCA**.** Counsel further submittedthat the Petitioner's claims of noise, dust and working-hour violations were unsubstantiated by any technical or scientific evidence. Counsel relied on **Joseph Leboo v Director, Kenya Forest Service [2013] eKLR** to submit that environmental petitions must be grounded on tangible facts rather than speculation. 7. On public participation, Counsel submitted that the EIA process complied with Section 59 of EMCA. It was submitted that the Petitioner failed to demonstrate that it had submitted objections during the statutory public participation process or that any objection raised was disregarded. Counsel relied on **Republic v County Government of Kiambu Ex Parte Robert Gakuru [2016] eKLR** and **Nairobi Metropolitan PSV Saccos Union Limited & 25 Others v County Government of Nairobi & 3 Others [2013] eKLR** to submit that public participation involves a matter of providing reasonable opportunity rather than unanimity, and that a party's failure to utilise that opportunity cannot establish a constitutional claim. 8. Regarding the constitutional violations, Counsel submitted that Article 40 of the Constitution protects the 1st Respondent's right to develop its property within the confines of the law. Counsel submitted that the Petitioner cannot invoke Article 40 to arbitrarily restrict such development. Counsel contended that the claim under Article 42 was unsupported by the scientific or technical evidence required to establish actionable environmental harm. Counsel cited **Ken Kasinga v Daniel Kirui & 5 Others [2015] eKLR and the Court of Appeal's holding in the Claire Kubochi Anami c**ase, to submit that discomfort arising from lawful construction does not amount to a constitutional violation. Counsel asserted that Article 47 is inapplicable as the dispute is between private neighbouring landowners rather than administrative action taken against the Petitioner. Counsel argued that the Petitioner has not shown that it was denied a hearing. Counsel relied on **Judicial Service Commission v Mbalu Mutava & Another and Dry Associates Ltd v Capital Markets Authority [2012] eKLR** to submit that the burden of proving procedural unfairness lies with the party alleging it. Counsel submitted that the claim under Article 35 was unsustainable as no evidence has been presented demonstrating that the Petitioner requested for information from the 1st Respondent or the relevant statutory authority. Counsel further submitted that no infringement of Article 31 had been shown, since there was no window or balcony of the development facing the Petitioner's property. Counsel argued that any privacy concern arose from the Petitioner's own construction of balconies along the boundary without regard to the prescribed setback. 9. On the threshold for constitutional petitions, Counsel submitted that the Petition failed to satisfy the precision test established in **Anarita Karimi Njeru v Republic [1979] eKLR, as reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR.** Counsel further submitted that the Petition relied on broad assertions of risk and procedural lapses without identifying the specific provisions breached or the specific acts constituting the breach. Regarding Article 70, Counsel submitted that the Petitioner failed to demonstrate actual or objectively foreseeable environmental harm due to the absence of any expert report, environmental audit, or structural analysis. 10. In conclusion, Counsel urged the Court to dismiss the Petition with costs and declare that the 1st Respondent has complied with all the applicable statutory and regulatory requirements under PLUPA, EMCA, and the National Construction Authority Act. **THE 2ND RESPONDENT’S SUBMISSIONS** 1. The 2nd Respondent filed its submissions dated 11th March 2026. 2. On behalf of the 2nd Respondent, Counsel outlined the following issues for the Court’s determination: *a) Whether the 2nd Respondent acted unlawfully in issuing the development approval;* *b) Whether the Petitioner had demonstrated a violation of its constitutional rights;* *c) Whether the Petitioner had complied with the doctrine of exhaustion of statutory remedies; and* *d) Whether the Petitioner was entitled to the reliefs sought.* 1. Regarding the first issue, Counsel submitted that the 2nd Respondent derives its mandate to regulate land use planning from the Physical and Land Use Planning Act, 2019. Counsel further submitted that Sections 36, 37, 40, 42, 43, 45, 46, 51, 56, 57, and 61 of PLUPA outline the responsibilities of County Governments in regulating development and approving building plans. It was submitted that Section 55 specifically grants development control powers to County Governments. Counsel argued that, in exercising this mandate, the 2nd Respondent assesses development applications against approved zoning regulations, physical development plans, and planning standards. Counsel submitted that the 2nd Respondent considered the zoning classification applicable to L.R No. 209/9943 before granting the approval, making the approval lawful and consistent with the statutory framework. 2. Counsel relied on **Nairobi Metropolitan PSV Saccos Union Limited & 25 Others v County Government of Nairobi & 3 Others [2014] eKLR** to submit that zoning and planning regulations are essential tools for orderly urban development management, and that Courts should exercise restraint and not interfere with planning decisions absent demonstrated illegality, irrationality or action outside statutory mandate. 3. Counsel relied on **Claire Kubochi Anami & 2 Others v County Executive Committee Member, Built Environment and Urban Planning, Nairobi City County & 20 Others (Civil Appeal No. E160 of 2025)**, where the Court of Appeal held that the 2004 zoning guidelines could not govern the current development approvals, that the 2021 Nairobi Development Control Policy classified the relevant area as Zone 3C permitting buildings of up to approximately 20 floors, and that the Court had issued structural interdicts directing the County Government to adopt clear and legally compliant zoning and development control plans, while declining drastic remedies such as demolition in recognition that substantial development costs had already been incurred and that urban planning must respond to evolving realities of population growth, infrastructure demand and urbanisation. 4. Based on the foregoing, Counsel argued that Courts should exercise judicial restraint in light of the substantial progress made in the development. Counsel submitted that the Petitioner failed to demonstrate that the 2nd Respondent acted beyond their jurisdiction, in error of law, irrationally, unreasonably, or with procedural impropriety. Counsel relied on the case of **Republic v Kenya Revenue Authority Ex Parte Yaya Towers Ltd [2008] eKLR** to submit that a constitutional or judicial review challenge to administrative action must establish illegality, irrationality, or procedural improper conduct, none of which had been demonstrated in this case. 5. Counsel further submitted that land use planning and development regulation in Nairobi falls within the 2nd Respondent's mandate under Article 176 and the Fourth Schedule of the Constitution. Counsel emphasized that Courts should be careful not to infringe upon the statutory functions of constitutional bodies, while recognizing that judicial review remains available to address impropriety where proven. Counsel submitted that the 2nd Respondent's decision was within its statutory authority under the Physical and Land Use Planning Act and should not be overturned. 6. Regarding the constitutional violations, Counsel submitted that the Petitioner failed to demonstrate any infringement of Articles 31, 40, 42, 46 and 47 of the Constitution agains**t** the 2nd Respondent. Counsel relied on **Anarita Karimi Njeru v Republic [1979] eKLR**, as reaffirmed by the Court of Appeal in **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR**, to submit that a petitioner must plead with reasonable precision the constitutional provision said to have been violated and the manner of violation. 7. Counsel further submitted that the Petition merely contains generalized allegations, lacking particulars of the alleged complaints, the manner of violation, or the jurisdictional basis for proceeding against the 2nd Respondent. Counsel further submitted that complaints regarding noise, dust and construction practices are matters regulated under environmental law and fall under the jurisdiction of the 3rd Respondent. Accordingly, Counsel maintained that no constitutional violation has been established against the 2nd Respondent. 8. On the doctrine of exhaustion, Counsel submitted that the Petitioner had failed to invoke the statutory dispute resolution mechanism established under Section 61(3) of the Physical and Land Use Planning Act before approaching the Court. To support this point, Counsel relied on **Speaker of the National Assembly v Karume [1992] KLR 21** and on **Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR**. 9. Counsel further submitted that the declaratory and prohibitory orders sought by the Petitioner can only be issued upon proof of illegality or procedural impropriety none of which had been established. Counsel contended that granting such orders would unjustifiably interfere with the lawful administrative actions carried out within the County Government's statutory powers. Counsel further submitted that none of the documents presented by the Petitioner proved that the 2nd Respondent acted outside its statutory authority, exceeded its jurisdiction, made legal errors, or committed procedural impropriety in granting the development approval. 10. Counsel relied on **Kiambu County Tenants Welfare Association v Attorney General [2017] eKLR** to submit that constitutional claims must be supported by cogent evidence. Counsel further submitted that the evidence before the Court fell short of the threshold required to sustain a constitutional claim as the Petitioner did not establish any nexus between the alleged violations and the 2nd Respondent's administrative actions in processing and granting the approval. 11. Counsel argued that urban development disputes should be resolved based on the current planning instruments rather than outdated zoning guidelines. Counsel submitted that the development approval granted to the 1st Respondent was lawful and within the 2nd Respondent's statutory authority. In conclusion, Counsel urged the Court to dismiss the Petition with costs. **ANALYSIS AND DETERMINATION** 1. Having considered the Petition, the affidavits in response and the rival submissions, the following issues arise for determination: 1. *Whether this Court has jurisdiction to hear and determine this Petition in light of the doctrine of exhaustion;* 2. *Whether the Petition meets the threshold for a Constitutional Petition;* 3. *Whether the Petitioner has the requisite locus standi to institute this Petition;* 4. *Whether the development approval by the 2nd Respondent was lawfully issued;* 5. *Whether the change of user approval was lawfully issued;* 6. *Whether the EIA License by the 3rd Respondent was lawfully issued;* 7. *Whether there was meaningful public participation in the approval of the impugned development;* 8. *Whether the Petitioner’s constitutional rights were violated;* 9. *Whether the Petitioner is entitled to the reliefs sought.* **WHETHER THIS COURT HAS JURISDICTION TO HEAR AND DETERMINE THIS PETITION IN LIGHT OF THE DOCTRINE OF EXHAUSTION** 1. The 1st and 2nd Respondents contend that the Petition offends the doctrine of exhaustion, as disputes related to development approvals should initially be addressed by the County Liaison Committee and the National Environment Tribunal regarding environmental disputes. The Petitioner asserts the Petition raises questions concerning violations of Articles 10, 31, 40, 42, 46 and 47 of the Constitution. 2. The doctrine of exhaustion is well established in Kenyan Law. 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.”*** 1. Similarly, in**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.”*** 1. However, the doctrine is not absolute. Section 9(4) of the Fair Administrative Action Act expressly empowers the Court, in exceptional circumstances to exempt a party from the obligation to exhaust alternative remedies. 2. Courts have recognised exceptions where the dispute raises substantial constitutional questions, where the statutory forum lacks jurisdiction to grant the relief sought or where the available remedy is inadequate or ineffective. 3. In the matter at hand, Sections 125 and 129 of EMCA establish the National Environment Tribunal to hear disputes arising from NEMA’s decisions on the issuance, denial, or revocation of a licence, while Sections 76 and 78 of the Physical and Land Use Planning Act establish the County Physical and Land Use Planning Liaison Committee as the initial forums for challenging development permits. 4. The 1st Respondent submitted that the Petitioner should have resorted to the National Construction Authority's internal mechanisms regarding its complaints concerning structural and construction safety. 5. 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 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. The present Petition does not merely challenge the technical propriety of planning approvals. The Petitioner alleges violations of constitutional rights under Articles 10, 31, 40, 42, 46 and 47 of the Constitution. 6. Sections 125 and 129 of EMCA and Sections 76 and 78 of PLUPA provide administrative or statutory remedies. A careful perusal of the Petition shows that it raises issues regarding environmental protection and property rights, as well as matters related to public participation. 7. Accordingly, this Court finds that it has jurisdiction to hear and determine the Petition on its merits. The 1st and 2nd Respondents' objection on this ground is dismissed. **WHETHER THE PETITION MEETS THE THRESHOLD FOR A CONSTITUTIONAL PETITION** 1. The 1st and 2nd Respondents contend that the Petition does not meet the threshold for a constitutional Petition established in **Anarita Karimi Njeru v R and reaffirmed in Mumo Matemu v Trusted Society of Human Rights Alliance**. They argued that the Petition merely cites constitutional provisions without demonstrating the manner of infringement. They contended that there is no evidence supporting the alleged breaches. The legal threshold for a Constitutional Petition was set out in **Anarita Karimi Njeru vs Republic (1979) eKLR** as follows; ***“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.”*** 1. This principle was reaffirmed by the Court of Appeal in the case of **Mumo Matemo vs Trusted Society of Human Rights Alliance & 5 others (2013) eKLR** as follows: ***“We wish to reaffirm the principle holding on this question in Anarita Karimi Njeru (supra). In view of this, we find that the petition before the High Court did not meet the threshold established in that case. At the very least, the 1st Respondent should have seen the need to amend the petition so as to provide sufficient particulars to which the respondents could reply. Viewed thus, the petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of these short comings, it was not enough for the superior Court below to lament that the petition before it was not the “epitome of precise, comprehensive or elegant drafting, without remedy by the 1st respondent.*** ***It is our finding that the petition before the High Court was not pleaded with precision as required in Constitutional Petitions. Having reviewed the petition and supporting affidavit we have concluded, that they did not provide adequate particulars of the claims relating to the alleged violations of the constitution of Kenya and the Ethics and Anti-Corruption Commission Act, 2011, accordingly the petition did not meet the standard enunciated in the Anarita Karimi Njeru case.”*** 1. The Supreme Court in **Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] eKLR** further established this principle and stated as follows: ***“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, 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 been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.”*** 1. In the matter at hand, having examined the amended Petition, this Court is satisfied that the Petitioner has specifically pleaded the constitutional provisions allegedly violated, along with the manner of infringement. The amended Petition outlines the factual basis for each alleged violation. In light of the foregoing, I find that the Petition meets the legal threshold for a constitutional Petition. **WHETHER THE PETITIONER HAS LOCUS STANDI TO INSTITUTE THIS PETITION** 1. The 1st Respondent raised an objection regarding the Petitioner’s standing to institute these proceedings in its submissions. The 1st Respondent argues that the Petitioner comprises individual and corporate entities that have failed to establish the requisite standing to maintain this Petition. It is trite law that submissions are not pleadings and cannot form the basis of a preliminary objection that was not first raised in the pleadings or in the 1st Respondent's affidavit. No foundation for the objection was laid in the 1st Respondent's Replying Affidavit. 2. Articles 22 and 258 of the Constitution allows any person to initiate proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened, whether on their own behalf, on behalf of another person who cannot act in their own name, as a member of or in the interest of a group or class of persons, or in the public interest. In **Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 Others (2014) eKLR** the Court observed as follows: *“****It is to be noted that the promulgation of the 2010 Constitution enlarged the scope of locus standi in Kenya. Articles 22 and 258 have empowered every person whether corporate or non incorporated to move the court contesting any contravention of the Bill of Rights or the Constitution in general”.*** 1. The Petitioner, as the management company responsible for the operations of Muthaiga Heights, clearly falls within this broad concept of standing, whether as a body acting in the interest of its members or in the public interest regarding the development in issue. 2. In light of the foregoing, this Court finds that the objection regarding the Petitioner's standing is unfounded and is hereby dismissed. **WHETHER THE DEVELOPMENT APPROVAL BY THE 2ND RESPONDENT WAS LAWFULLY ISSUED** 1. The Petitioner contends that the 1st Respondent’s construction does not comply with the applicable zoning, plot ratio, ground coverage, road setback and riparian setback, rendering the development approval issued by the 2nd Respondent unlawful. 2. The 1st Respondent contends that the approvals were lawfully issued by the 2nd and 3rd Respondents. The record shows that the development approval was issued on 25th September 2023, the change of user on 13th October 2023, and the EIA Licence on 2nd November 2023. At this juncture, the Court is called upon to consider each planning standard individually. The Petitioner relied on the Planning Report dated 8th November 2024, while the 1st Respondent relied on the Report by Planner Shadrack Mbuta dated August 2025. The 2nd Respondent relied on the report by Erick Okuku. **Zoning and permissible building height** 1. Regarding zoning, the Petitioner contends that the suit property falls within Zone 3D, where the maximum development approval is 15 floors, as prescribed under Nairobi County Development Control Policy 2021. It was argued that the approval of a 21-storey residential building contravenes the planning framework applicable to Parklands and is therefore unlawful. 2. The 1st Respondent's planner, Shadrack Mbuta, concluded that the development falls within Zone 3D of the Nairobi City County Development Control Policy, where high-density residential development is permitted up to 20 floors with a minimum plot size of 0.05 Ha. Further reliance was placed on the Nairobi City County Development Sessional Paper No.1 of 2022. It is clear that the parties agree that the suit property falls within Zone 3D. They, however, disagree on the permissible height within that Zone. The 1st Respondent contends that it complied with the zoning policy. The 2nd Respondent contends that it evaluated the approval against the approved zoning regulations. 3. In determining whether the impugned development complied with the applicable planning standards the Court is guided by the decision in **Claire Kubochi Anami & 2 others (Suing as Officials of Rhapta Road Residents Association) v County Executive Committee Member(CECM) Built Environment and Urban Planning, Nairobi City County & 20 others** Civil Appeal No e160 of 2025 where the Court of Appeal clarified the legal framework governing development as follows: ***“Our conclusion, therefore, is threefold. First, the 2004 Zoning Guidelines no longer carry binding legal status in Nairobi under the devolved framework and PLUPA. Second, NIUPLAN 2016 remains a valid, strategic, county-wide plan but cannot itself supply parcel-specific zoning rules. Third, the 2021 Development Control Policy, while legitimately prepared and used as a practical guide, did not attain full legal force without County Assembly approval and gazettement. We, therefore, agree with the learned Judge in his acknowledgment and use of the 2021 Development Control Policy as an operative administrative guide, while agreeing with the appellants that it is not a consummated legislative instrument.”*** 1. In the matter at hand, the Petitioner failed to demonstrate that the 2nd Respondent misapplied the operative planning framework or acted outside the powers conferred by PLUPA. 2. In the absence of clear and cogent evidence demonstrating that the County Government relied on an incorrect zoning framework or acted outside its statutory mandate, the Court is unable to conclude that the 2nd Respondent failed to comply with the zoning parameters. **Plot Ratio** 1. The Petitioner contends that the development exceeds the permissible plot ratio and ground coverage applicable to the suit property. The Petitioner submitted that the Nairobi County Zoning Guidelines applicable to Parklands provide ground coverage Plot Ratio of 75% for residential buildings, which the 1st Respondent refused to comply. It argues that the special conditions endorsed in the title restricted it to residential use, and the building was not to cover more than 50% of the land. It was argued that the 1st Respondent violated this condition by constructing on the entire plot contrary to the planning standards applicable to Parklands area. The Petitioner contends that the 2nd Respondent acted unlawfully in approving the impugned development as it exceeds the permissible ratio applicable to the subject property. 2. The 1st Respondent’s planner maintained that the ground coverage is approximately 61.48%, which is well below the permissible maximum under the applicable planning standards. It was argued that the approved development complied with the planning parameters and there was no excess development as alleged. 3. The 2nd Respondent maintained that the development was assessed against the planning standards applicable to the area. The 2nd Respondent’s planner maintained that the inspection confirmed that the development complied with the approved parameters, including the plot ratio, which justified the approval of 21 floors. 4. The Court has considered the competing technical opinions. Determining the applicable ratio is a technical planning exercise within the mandate of the County Government. The Petitioner's architecture, Mr. Jared Momanyi, whose observations formed the basis of many allegations, did not swear an affidavit nor prepare an expert report. 5. The 2nd Respondent contended that the development application underwent technical evaluation, the applicable planning standards were considered, and that a post approval inspection confirmed compliance with the approved parameters. 6. The Petitioner has not demonstrated that the 2nd Respondent ignored the mandatory statutory requirement or miscalculated the plot ratio. The Petitioner’s case is based on the opinion of its own planner, which differs from that of the County Planner and the 1st Respondent expert. The Court’s role is limited to determining whether that discretion was exercised lawfully and in accordance with the applicable statutory framework. 7. While the Court does not discount the Petitioner’s expert evidence, a divergence of professional opinion does not, on its own, establish illegality. The burden of proving that the approved ratio violated mandatory planning standards rested on the Petitioner. Based on the evidence and the technical reports on record, the Court is not satisfied that the Petitioner has discharged that burden on a balance of probabilities. **ROAD SETBACK** 1. The Petitioner contends that the development violates Regulation 7 of the Physical and Land Use Planning (Building) Regulations 202 regarding road setback requirements. The Petitioner’s Planner contends that the development should have observed a nine-meter road setback. 2. The 1st Respondent’s planning expert stated in his report that, when applying the planning standards adopted by the County Government, the required setback was six metres and not nine metres. 3. The inspection conducted by the 2nd Respondent found that the approved front setback measured approximately 7.2 meters and complied with the approved plans. The inspection concluded that the development complied with the approved plans and the applicable setback parameters. 4. The Petitioner has not demonstrated that the 2nd Respondent applied the wrong planning standard or that its technical assessment was erroneous or inaccurate. The existence of conflicting expert opinions on its own does not establish that the statutory authority acted unlawfully. Consequently, I find that the allegation is not proved on a balance of probabilities. **Riparian reserve** 1. The Petitioner contends that the 1st Respondent's development encroaches upon the riparian reserve adjoining the suit property. It was further contended that the 1st Respondent’s development left a setback of approximately 4 meters from the highest water mark, which falls below the 10 to 30 metres specified by the Water Act and the Physical and Land Use Planning Act. It is not in dispute that the Water Resources Authority, in its letter dated 27th August 2024, stated that a riparian reserve of 10 metres to a maximum of 30 metres from the highest flood mark should be observed. The 1st Respondent contended that WRA had confirmed that the 1st Respondent had complied with the prescribed riparian coordinates. The 2nd Respondent’s report indicates that the riparian way leave ranges between 33 metres and 17 metres. Although the Petitioner alleges encroachment on the riparian reserve, it has not produced any survey report, hydrological assessment or evidence from the Water Resources Authority contradicting the pegging undertaken by that authority. Based on the evidence presented by the parties, this Court finds that the Petitioner has not discharged the burden of proving that the impugned development encroaches on a riparian reserve. **Whether the change of user approval was lawfully granted** 1. The Petitioner contends that the change of user approval granted on 13th October 2023 was unlawfully granted. It was argued that the 1st Respondent had already commenced construction in May 2023 and had obtained the development approval on 25th September before obtaining the requisite change of user Approval. According to the Petitioner, this sequence contravened the Physical and Land Use (Development Permission and Control) Regulations 2021, which require that where a proposed development entails a change of user, the approval of such change must precede the grant of the development permission. The Petitioner further contends that the application for change of use was not subjected to publication and public participation. 2. The 2nd Respondent maintains that the application for change of user was processed in accordance with the Physical and Land Use Planning Act and the applicable regulations. The 1st and 2nd Respondents maintain that the approval was lawfully granted under the Physical and Land Use Planning Act after the relevant planning requirements had been assessed. 3. Regulation 4 of the Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021 requires that a Change of User approval be obtained wherever the proposal consists of a significant change of the registered use of the land, while Regulation 15 (2)(e) provides that an application for development permission must be accompanied with a Change of User approval, where one is required. Regulation 15 (2) (g) and (h) further require that in an application for change of user, be accompanied by a copy of a notice published in at least one newspaper of nationwide circulation, such publication to have run for at least fourteen consecutive days prior to the date the application is submitted, together with a copy of an on-site notice inviting comments from members of the public. 4. The documentary evidence shows that the Development approval was issued on 25th September 2023 whereas the Change of User approval was granted on 13th October 2023. The Respondents did not dispute the chronology. It is also evident that the EIA Licence was issued on 2nd November 2023. From the foregoing it is clear that the planning authority approved the change of user before the environmental licensing process had been concluded. 5. However, the existence of an irregular sequence of approvals does not by itself render the change of user approval unlawful. Although the Petitioner submitted that the application was not properly advertised and that objections were ignored, the record shows that a public notice inviting objections was published on 19th September 2023. The Petitioner acknowledged that it had lodged objections. The Petitioner did not present evidence showing that the statutory notice was not complied with or that the decision-making process violated any mandatory procedural requirement under the Physical and Land Use Planning Act or the Regulations. Similarly, the evidence does not establish that the approval was procured through fraud or in contravention of any mandatory provision or that the County Government lacked jurisdiction to grant the approval. 6. Development control is a specialized statutory function entrusted to county governments under the Physical and Land Use Planning Act Consequently, judicial intervention is only warranted where it is shown that the planning authority acted without jurisdiction, acted irrationally, ignored material evidence or reached a decision so unreasonable that no tribunal properly would have reached it. I find that the Petitioner has not demonstrated that the change of user itself was unlawfully issued to warrant this Court’s intervention. **WHETHER THE ENVIRONMENTAL IMPACT ASSESSMENT LICENCE WAS LAWFULLY ISSUED** 1. The Petitioner challenges the E1A Licence issued by the 3rd Respondent, contending that construction had begun contrary to Section 58 of EMCA and the environmental impact assessment and audit regulations. The Petitioner contends that construction commenced sometime in May 2023. While this has not been supported by evidence, it is undisputed that the impugned construction began before the EIA license had been issued. The 3rd Respondent did not dispute that construction activities had commenced before the EIA licence was issued. Section 58 of the Environmental Management and Co-ordination Act prohibits the commencement of a project prior to the issuance of an EIA licence. 2. The evidence on record shows that upon becoming aware of the construction, the 3rd Respondent issued an improvement notice directing the 1St Respondent to stop construction pending compliance with the statutory requirements. The commencement of the activities was inconsistent with Section 58 of EMCA and the Environment (Impact Assessment and Audit) Regulations. 3. There is no evidence that the improvement notice was ignored, withdrawn unlawfully, or that NEMA acted outside its statutory mandate in subsequently issuing the licence. The critical issue is whether non-compliance automatically renders every subsequent approval unconstitutional and subject to quashing. 4. The Petitioner has not demonstrated that the environmental assessment was fundamentally defective, that the relevant environmental considerations were ignored or that the licence was procured by fraud or procedural impropriety. The Court therefore finds that while the commencement of construction before obtaining the EIA licence was irregular, the irregularity does not in the circumstances of this case justify the nullification of the licence. **WHETHER THERE MEANINFUL PUBLIC PARTICIPATION IN THE APPROVAL OF THE DEVELOPMENT** 1. The Petitioner contends that there was no meaningful public participation before the approvals were granted. Conversely, the Respondents assert that the statutory notices were issued, objections were invited and considered, and the approval process was carried out in accordance with the applicable legislation. 2. Public participation is a fundamental constitutional principle that underpins governance and administrative decision-making. Public participation is not an abstract or inflexible concept. Its occurrence depends on the nature of the decision, the applicable statutory framework and the opportunities afforded to affected persons to present their views. 3. The three-judge bench in the case of **Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 17 others [2015] eKLR**, held that: ***“Fourth, public participation does not dictate that everyone must give their views on an issue of environmental governance…A public participation programme, especially in environmental governance matters must, however, show intentional inclusivity and diversity. Any clear and intentional attempts to keep out bona fide stakeholders would render the public participation programme ineffective and illegal by definition. In determining inclusivity in the design of a public participation regime, the government agency or Public Official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account.”*** 1. The Court is called upon to determine whether there was meaningful public participation. The 1st Respondent produced a copy of a public notice dated 12th September 2023 notifying members of the public of the proposal to change the use of L.R No. 209/9943 from a single dwelling unit to multi-dwelling units (apartments). It also presented a copy of the Standard Newspaper of 13th September 2023, containing a similar notice inviting objections and comments from the public. The Petitioner presented a letter dated 23rd September 2023 setting out its objections to the change of user. The Petitioner acknowledges that a public notice inviting objections to the proposed change of user was published and that the Petitioner submitted objections to the proposed development. The 3rd Respondent acknowledged receipt of the Petitioner’s objections dated 23rd September 2023 and confirmed that regulatory action has been taken in response. 2. The gravamen of the complaint is not that it was denied an opportunity to object, but rather that its objections were not accepted. The mere fact that an objector’s view is not accepted does not, without more, establish that the decision-making process was unlawful or that the objections were not considered. Consequently, the mere fact that the statutory authorities ultimately approved the project notwithstanding the Petitioner’s objections cannot, on its own, amount to a violation of Article 10. This Court therefore finds that the Petitioner has not proved its claim under this head. **WHETHER THE PETITIONER’S CONSTITUTIONAL RIGHTS WERE VIOLATED** 1. The Petitioner alleged that the Respondents violated its rights under Articles 31, 40, 42, 46 and 47 of the Constitution. Regarding Article 42, which provides the right to a clean and healthy environment, the Petitioner must demonstrate through credible evidence actual or threatened environmental harm attributable to the impugned conduct. 2. The Petitioner complained of diminished ventilation, water pollution, and risk of waterborne diseases. However, no environmental audit, environmental impact assessment, scientific report, or air and water quality analysis was produced to demonstrate that the alleged environmental harm existed. 3. It is noteworthy that the 3rd Respondent acknowledged receiving complaints concerning dust and construction hours and demonstrated that it investigated those complaints, convened meetings between the parties, and issued regulatory directions where necessary. 4. The fact that a regulator received complaints does not, in itself, establish a constitutional violation. Regulatory oversight is intended to address such complaints and ensure compliance with environmental standards. 5. The Court is therefore not persuaded that the evidence establishes a violation of Article 42 of the Constitution. 6. Regarding Article 47, which provides for fair administrative action, the Petitioners contend that the 2nd and 3rd Respondents violated Article 47 by granting approvals to the 1st Respondent contrary to the law. 7. It was also argued that the 2nd Respondent failed to give the Petitioner written reasons for the decision in issuing the approvals. No evidence was produced to show that the 2nd Respondent denied the Petitioner an opportunity to present its concerns. The record shows that the Petitioner lodged objections, which were received by the regulatory agencies. The 3rd Respondent investigated the complaints and halted the construction pending compliance. Equally, the 3rd Respondent issued an improvement notice directing that construction cease pending compliance with the statutory requirements. Thereafter, the Authority continued to engage the parties regarding complaints concerning construction hours and other environmental concerns. 8. Although the Petitioner faults the Respondents for ultimately reaching a decision adverse to its interest, Article 47 does not guarantee that every objection lodged before a public authority must succeed. Procedural fairness requires that objections be received and considered. It does not require that the decision maker necessarily agree with the objector. 9. The Petitioner failed to demonstrate that it requested reasons for the decision and that such a request was refused. Similarly, the Petitioner did not demonstrate that the approvals were issued in bad faith for an improper purpose or in excess of jurisdiction. The Court therefore finds that the alleged violation of Article 47 has not been established. 10. The Petitioner also alleged that the approvals were issued without meaningful public participation, contrary to Article 10 of the Constitution. The Court has already found that there was public participation. 11. Regarding Article 31, the Petitioner asserts that the proximity of the proposed development to its boundary wall violates the privacy of its residents. The Petitioner did not present any evidence demonstrating that the approved building design results in unlawful overlooking, surveillance, or intrusion into private spaces. The 1st Respondent’s evidence that no balconies or windows directly overlook the Petitioner’s property was not rebutted by expert or photographic evidence. The violation, therefore, has not been proven. 12. Regarding Article 40 on the right to property, the Petitioner contends that the development will reduce the value of its property and diminish its enjoyment. No valuation report was produced to demonstrate diminution of value. The alleged loss remains speculative. Article 40 protects the rights of both the Petitioner and the 1st Respondent. The Court must therefore balance the competing proprietary rights of neighbouring land owners. 13. Regarding Article 46, the Petitioner contends that prospective purchasers of units within the 1st Respondent's development may be prejudiced by the alleged planning irregularities. Article 46 protects consumers in their relationship with suppliers of goods and services. The Petitioner has not demonstrated that it is a consumer within the meaning of Article 46 or that any of its customers' rights have been infringed. The Petitioner's constitutional standing cannot be extended to litigate speculative claims on behalf of unidentified future purchasers who are not parties to these proceedings. Having considered the evidence on record, this court finds that the Petitioner has not proved on a balance of probabilities that the Respondent's violated its rights under Articles 10, 31, 40, 42, 46 or 47 of the Constitution, **WHETHER THE PETITIONER IS ENTITLED TO THE ORDERS SOUGHT** 1. The Petitioner seeks an order prohibiting the 1st Respondent from continuing with construction until the approvals granted by the 2nd and 3rd Respondents are subjected to public participation. Having found that the approvals have not been demonstrated to be invalid and the allegation of public participation has not been proven, there is no legal basis for restraining the continuation of the approved development. 2. The Petitioner also seeks to set aside the development approval PLUPA –BPM – 003050. Having found that no sufficient grounds have been established to invalidate the development approval, this prayer equally fails. For similar reasons, the Court finds no sufficient basis has been established for quashing the EIA Licence issued by the 3rd Respondent. 3. The Petitioner sought general damages for the alleged constitutional violations. For damages to issue, the Petitioner must establish the existence of a constitutional infringement before the Court can consider awarding damages. Since the Court has found that no constitutional violation has been proven, there is no basis upon which an award of general damages can be made. 4. The Petitioner claimed special damages amounting to Kshs 9,600,000/= being loss of rental income from two apartments. The Petitioner presented emails exchanged in August and November 2024, evidencing that the residents of Units 1110 and 1102 vacated their respective apartments. It is trite that special damages must be specifically pleaded and strictly proved. The claim for future rental losses is speculative and not amenable to the strict proof special damages demand, and cannot succeed. 5. In the end, this Court finds that the amended Petition lacks merit and is hereby dismissed. Each party to bear its own cost. **JUDGEMENT SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY, 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF:** Amingo for the Petitioner Mohammed for the 1st Respondent Ms Shisia holding brief for Murango for the 2nd Respondent Karimu for the 3rd Respondent Vena- Court assistant