https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4864

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **PETITION NO. 8 OF 2020** **IN THE MATTER OF ATRICLES 2 (1), 3 (1), 10 (1), (2), A, B &C, 27 & 73 OF THE CONSTITUTION AND IN THE MATTER OF ARTICLE 20(1). (2), (3) A & B, ARTICLE 21 (1), 22 (1), (2) & 23 (1) & (3) A, B, C, D & E OF THE CONSTITUTION** **AND** **IN THE MATTER OF THE ALLEGED CONTRAVENTION AND VIOLATION OF FUNDAMENTAL RIGHTS AND FRREDOMS OF INDIVIDUALS AS ENSHRINED UNDER ARTICLE 27, 28, 32, 40, 42, 43, 47 AND 70 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF SECTION 41 OF THE PHYSICAL PLANNING ACT CAP, 286 OF LAWS OF KENYA (*Repealed)*** **BETWEEN** **JANE NGIGE ……………………………………………….….…….PETITIONER** **VERSUS** **GIDEON MUNYUA MWANGI (As a Legal representative of the Estate of GEORGE MUNYUA MWANGI)..…………………….……….1ST RESPONDENT** **COUNTY GOVERNMENT OF KIAMBU…………….….….2ND RESPONDENT** **JUDGMENT** 1. Vide an Amended Petition dated the 10/01/2025, the Petitioner seeks the following reliefs: 2. **A declaration that the Petitioners' right to a clean and healthy environment as guaranteed by Articles 42 and 43 of the Constitution of Kenya has been violated by the actions of the Respondents.** 3. **A declaration that the issuance of the Notification for Approval of Development Permission - Change of Use dated 25th September 2018 to the 1st Respondent by the 2nd Respondent in contravention of Article 10 of the Constitution on public participation and Sections 36 and 52 of the Physical Planning Act (Repealed) is illegal, null, and void.** 4. **An order forbidding the 2nd Respondent from issuing a Certificate of Occupation to the 1st Respondent in respect of the Development erected on Plot LR No. 4871/120 located in Kikuyu Area within Kiambu County.** 5. **An order of environmental restoration requiring the 1st Respondent by himself, his agents, employees, and/or representatives to demolish any structures erected on Plot LR No. 4871/120 located in Kikuyu Area within Kiambu County with a view of restoring the environment to its original status. In default of the 1st Respondent complying with the said restoration order, the Petitioners in conjunction with the 2nd Respondent be authorized to appoint an auctioneer to carry out the demolition and restoration at the cost of the 1st Respondent.** 6. **Costs of this Petition.** 7. **Such other orders as this Honourable Court may deem fit to grant.** 8. The Petitioner is a long-term resident, and natives of Link Road in Kikuyu Sub-County within Kiambu County. Their grievance arises from the beginning of the year 2020, when the Petitioner noticed an upcoming construction project on Plot LR No. 4871/120 located in Kikuyu Area within Kiambu County (herein referred to as **“the Development”**). At the time of the commencement of the Development, the nature, design, and magnitude of the Development was not clear to the Petitioners as information surrounding the Development was scanty and unavailable. 9. That the Development continued for an initial period of at least six (6) months up until July 2020 when the construction was halted for a while following a complaint to the authorities. By the time the construction was halted, two floors had been constructed below the ground (as a basement) and three floors above the ground, which caused great concern to the Petitioner. 10. The action and the progress on the Development referred to above forced the Petitioner to make inquiries on, among other issues, the nature of the Development, its owner, and whether the legal requirements in relation to the undertaking of the Development had been complied with. 11. According to the Petitioner the inquiries she undertook revealed that the project consists of a massive eight-floor high-rise apartment which, if completed, would be situated right in the middle of a residential area and would have adverse effects on the Petitioner as well as other residents. 12. This revelation and which is also referred to at paragraph 17 of the Petition prompted the Petitioner to visit the National Environmental Management Authority's (NEMA) Regional Office in Kiambu on 6/07/2020 and 9/07/2020 with a view to inquiring on the Development. The Petitioner was able to obtain, among other documents, the Notification of Approval of Development Permission - Change of Use issued on 25/09/2018 (herein referred to as the **“Change of Use”**). 13. It is the Petitioner’s case that upon reading the documents, she discovered the following material illegalities which include the fact that there is inadequate Licensing/Provision in respect of Water and Sanitation. That while the 1st Respondent undertook that a borehole would be drilled, there is no corresponding survey of existing boreholes/wells in the immediate area. In addition, no license from the Water Resources Authority (WRA) was provided. 14. That there is also the Change of Use Violations where the 1st Respondent did not notify the public of the development proposed to be undertaken in line with the principles of public participation under Article 10 of the Constitution before the grant of the Change of Use by the 2nd Respondent. 15. Additionally, the immediate, easily identifiable neighbours were not invited to submit any objections on the proposed Project. Further that while Clause 12 of the Change of Use approval clearly stipulates that the 1st Respondent shall *observe 50% coverage and plot ratio of 4.0 (maximum 8 stories)*, the 1st Respondent is in total disregard of this condition and is constructing on the entire Property approximated at 100% coverage, building 8 floors complete with two basement floors for parking, which violates the planning permission. 16. The Petitioner assert that these conditions constitute a violation of constitutional rights. In particular, Article 42 the right to a clean and healthy environment, including the right to have the environment protected for the benefit of present and future generations as stipulated under Article 42 of the Constitution. 17. She further invokes the planning laws, to the extent that the Change of Use was issued in contravention of Section 52 of the Physical Planning Act (Repealed), as the 1st Respondent did not notify the public or invite objections from immediate neighbours before the approval was granted by the 2nd Respondent. 18. Further she states that the 2nd Respondent is one of the devolved units established under Article 176, as read together with the First Schedule to the Constitution. It is mandated under Article 186 of the Constitution, as read together with the Fourth Schedule to the Constitution, to provide among other functions, county planning and development including housing. 19. The Petitioner has cited several constitutional provisions as the constitutional and legal foundations of the Petition which include Article 2(1), 3(1), 10, 19, 20, 22, 23, 27, 28, 43, 69, 70, 42, 47, and Section 87 of the County Governments Act, Sections 41 and 52 of the Physical Planning Act Cap 286. 20. In response to the Petition, the 1st Respondent, swore a Replying Affidavit dated 14/05/2025. The deponent, Gideon Munyua Mwangi, deposes on his own behalf and on behalf of Perpetual Wangari Mwangi and Benta Wangui Mwangi in their capacities as the joint administrators and legal representatives of the Estate of the Late George Mwangi Munyua. The deponent establishes this representative capacity by producing a true copy of the Letters of Administration Intestate issued by the Court on 21/11/2022, which is annexed and marked as **"GMM-1"**. The deponent states that he is fully conversant with the facts of the case and makes this solemn oath in opposition to the Further Amended Petition and its Supporting Affidavit sworn by Jane Ngige. He strongly contends that the petition is frivolous, vexatious, actuated by malice, and constitutes a gross abuse of the Court process. He therefore prays that the suit be dismissed with costs and that the Petitioner be compelled to compensate the Estate in damages assessed at Kenya Shillings Two Million, Five Hundred Thousand (Kshs. 2,500,000/=). 21. The deponent challenges the Petitioner's *locus standi* to prosecute the suit, noting that the Further Amended Petition arose after the Court allowed an application to strike out the other forty-seven petitioners. He points to a letter dated 31/05/2022 and various withdrawal notices, annexed collectively as **"GMM-2"**, wherein members of the Magoko Ladies' Group expressly declared they had never authorized the filing of the suit, held meetings to deliberate on the litigation, or instructed the firm of **Okumu Kubai & Company Advocates**. Consequently, the deponent asserts that the authority or resolution marked as **"IN-1 (B)"** in the Petitioner’s papers is a fictitious document and that the sole remaining Petitioner has no authority to sue on behalf of others. 22. The deponent further refutes the Petitioner's claim that she only noticed the construction at the beginning of 2020. He reveals that the Petitioner and her husband, Ngige Mondo, had actually leased a portion of their adjacent land to the Late George Mwangi Munyua for storing construction materials for the project. This transaction is proved by a temporary lease agreement dated 2/05/2019 and its subsequent addendum, witnessed by the Senior Chief of Kikuyu, both of which are annexed and marked as **"GMM-3"**. He adds that all project designs and approvals were public records available at the County Government of Kiambu and NEMA offices. 23. Regarding regulatory compliance, the deponent outlines how the developer diligently addressed all statutory notices. When NEMA issued an Environmental Improvement Notice on 7/07/2020 (annexed as **"GMM-4"**) regarding dust screens and borehole drilling, and the National Construction Authority (NCA) suspended works on 8/07/2020 for want of a project signboard (annexed as **"GMM-5"**), the developer rectified these issues immediately. This resulted in NEMA lifting the suspension order on 13/07/2020, as evidenced by NEMA’s lifting order marked as **"GMM-6"**, and the NCA subsequently issuing a Certificate of Compliance on 11/08/2020, annexed as **"GMM-7"**. 24. The deponent further produces the Environmental Impact Assessment (EIA) License issued to the developer, annexed as **"GMM-8"**, and demonstrates that all authorizations for water supply were properly obtained. This includes a Hydrogeological Survey Report and borehole report submitted to licensing bodies, annexed as **"GMM-9"**; a "No Objection" letter from the Managing Director of Kikuyu Water Company Ltd dated 4/11/2018, annexed as **"GMM-10"**; a Water Resources Authority drilling authorization dated 18/03/2019, annexed as **"GMM-11"**; and a specific NEMA Borehole Drilling License dated 14/07/2020, annexed as **"GMM-12"**. 25. On public participation and planning approvals, the deponent insists that proper procedures were followed. He annexes a copy of the large, visible on-site public notice for change of user as **"GMM-13"**, and a copy of the public notice published in *The Star* newspaper on 7/08/2018, annexed as **"GMM-14"**. He adds that the County Planning Technical Committee recommended the project for approval, leading to the issuance of the Change of User development permission, approved architectural drawings, and a construction permit, which are annexed as **"GMM-15a"**, **"GMM-15b"**, and **"GMM-15c"** respectively. 26. Finally, the deponent points out that NEMA inspectors subsequently confirmed the project observed a 61% plot coverage, which is within lawful limits. He states that the multi-dwelling residential apartments were completed over two years ago, are fully occupied by tenants, and have enhanced the local environment. He argues that the Petitioner has selectively targeted the Estate out of malice while ignoring other multi-dwelling developments in the area. Given that the Estate of the deceased has heavily invested in the property through bank loans and third-party finances, the deponent asserts that granting the demolition and restoration orders sought would unjustly punish the Estate and cause irreparable financial ruin, and he prays for the petition to be dismissed with costs. 27. The 2nd Respondent filed a Replying Affidavit sworn on 29/11/2024 sworn by Hannah Maraga, the Director of Physical and Land Use Planning. She deposes that she is well conversant with the facts of this matter and fully competent to swear the Replying Affidavit. She categorically refutes the allegations leveled against her office, stating that they are false, misleading, and fail to demonstrate any infringement of the petitioners' constitutional rights. The deponent highlights that the photographic evidence marked as **"IN5"** in the petitioners' own bundle of documents actually confirms that the adjacent parcels of land consist of multi-dwelling residential units rather than single-dwelling homes. Furthermore, she denies violating Article 42 of the Constitution, the repealed Physical Planning Act, the County Government Act, or the Environmental Management and Co-ordination Act (EMCA). She maintains that if the petitioners had any legitimate grievances regarding the change of user, their proper recourse was to lodge an appeal before the relevant Liaison Committee rather than abusing the Court process. 28. To demonstrate that the planning approval process was conducted in strict compliance with the law, the deponent outlines the administrative steps taken by her office. She states that the 1st Respondent's application for development permission and change of user on Land Parcel Number L.R. No. 4871/120 was received in August 2018 alongside all requisite planning briefs and proof of advertisement. To support this, she annexes copies of the planning brief dated August 2018 and the public notice published in *The Star* newspaper classified section as **"Exhibit HM1 a and b"**. She points out that no objections were raised by any of the petitioners within the statutory fourteen-day window following the publication of the newspaper advertisement or the posting of the on-site notice. 29. The deponent further details the sequential steps through which the development was formally sanctioned. Following the submission of the application, which was registered under Reference Number KKY-COU-AAA1524, the County Planning Technical Committee convened on 18/09/2018. Under Minute Item Number CPTC/042/2018/159, the committee approved the change of user from a single-dwelling residential unit to multi-dwelling flats, subject to several conditions, including obtaining a NEMA license and observing a maximum plot coverage of fifty percent. The formal notification of this approval, issued on 25/09/2018, is annexed and marked as exhibit **"HM 2"**. 30. Subsequently, the 1st Respondent submitted the required architectural drawings for review. On 14/11/2018, the County Planning Technical Committee, acting on its deliberations from 5/11/2018, issued a notification of approval for the architectural drawings under Minute Number CPTC/043/2018/078, which is annexed and marked as exhibit **"HM 3"**. These drawings, registered under Plan Number KKY-CPD001-AAA3033, were approved subject to standard engineering, environmental, and landscaping conditions. That after the submission of the necessary structural designs, the office issued a formal construction permit on 28/06/2019 under Form CPD002B, which is annexed and marked as exhibit **"HM 4"**. Consequently, the deponent deposes that the petition against the 3rd Respondent is entirely vexatious, frivolous, and an abuse of the Court process, and prays that the same be dismissed with costs. 31. When parties appeared in Court on 27/11/2025 and were directed to filed their written submissions only the Petitioner and the 1st Respondent filed their written submissions. The 2nd Respondent told the Court that they were not going to file and written submissions and that they would rely wholly on the Replying Affidavit sworn on 29/11/2024. On their part the Petitioners filed written submissions dated 7/02/2026 and the 1st Respondent filed their written submissions dated 16/03/2026. **Petitioner’s Submissions** 1. These final submissions are filed by Jane Ngige, who is now the sole remaining Petitioner in this matter, in support of her Further Amended Petition. Addressing the 1st Respondent's challenge regarding her standing, she contends that she possesses the requisite locus standi under Articles 22, 70, and 258 of the Constitution, particularly as a resident living in close proximity to the disputed eight-floor high-rise apartment on Plot L.R. No. 4871/120 in Kikuyu, Kiambu County. Although forty-seven other petitioners withdrew, she argues that her personal rights and interest in the local environment remain directly threatened. To support this position, she relies on **Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR**, in which the Court of Appeal observed that the 2010 Constitution fundamentally transformed the legal landscape by dismantling stringent historical standing rules and broadening access to justice, thereby allowing any individual to bring an action to protect constitutional rights and public interests. 2. The Petitioner asserts that the Notification for Approval of Development Permission and Change of Use, dated 25/09/2018, was issued by the 2nd Respondent in total secrecy and in clear violation of the constitutional and statutory requirements for public participation. Specifically, she argues that the 1st Respondent failed to adequately consult contiguous neighbors as required under Sections 41(3) and 52 of the repealed Physical Planning Act (Cap 286). There is no proof of public meetings, local notices in Kiswahili, or standard postings at the Chief's office. To underscore the severity of this omission, the Petitioner cites **Irungu v Hayer Marquis Limited & 2 Others [2025] KEELC 6602 (KLR),** where the Court held that the burden lies squarely on the project proponent to prove that qualitative public participation was conducted. She also points to **Mwingi Court Residents Associations v Barasa t/a Gabasa (K) Enterprises & 3 Others [2025] KEELC 6766 (KLR)** to show that uncontroverted allegations of a lack of stakeholder consultation must stand as unchallenged facts when Respondents fail to provide contrary evidence. Furthermore, to define what constitutes genuine public engagement, she relies on the guiding principles set out by the Supreme Court in **British American Tobacco Kenya, PLC vs Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & Another; Mastermind Tobacco Kenya Limited [2019] eKLR,** alongside the South African decision in **Doctors for Life International vs. Speaker of the National Assembly and Others (CCT12/05) [2006] ZACC 11**, which both establish that public entities must ensure citizens have the necessary information and effective opportunities to participate meaningfully in governance. 3. In addition to the public participation failures, the Petitioner argues that the project's approvals are fundamentally illegal because the development permission was granted nearly eleven months before the environmental clearance was obtained. The Change of Use was issued on 25/09/2018, whereas the Environmental Impact Assessment (EIA) license was only secured on 21/08/2019. This sequence violates Section 36 of the repealed Physical Planning Act and Regulation 4 of the Environmental (Impact Assessment and Audit) Regulations (Legal Notice 1 of 2003), which mandate that an environmental assessment must be completed and approved before any license is issued or project is implemented. 4. The Petitioner also identifies a serious breach of the approved planning conditions. While Clause 12 of the Change of Use strictly restricted the development to a maximum of fifty percent plot coverage, photographic evidence demonstrates that the construction covers nearly the entire plot, and the 1st Respondent's own pleadings admit to sixty-one percent coverage. Furthermore, the Petitioner highlights inadequate licensing and planning regarding water and sanitation, noting a total lack of Water Resources Management Authority (WRMA) licenses or nearby borehole surveys. 5. Ultimately, the Petitioner submits that these collective statutory breaches, planning violations, and procedural illegalities actively infringe upon her right to a clean and healthy environment as guaranteed by Articles 42 and 43 of the Constitution. She maintains that allowing the massive, unregulated high-rise development to proceed without proper environmental and public safeguards will cause continuous environmental degradation in the residential area. Consequently, she prays that the Court grant the declarations sought and issue a mandatory environmental restoration order. This order would require the 1st Respondent to demolish all structures erected on Plot L.R. No. 4871/120 to restore the land to its original status, with the costs of such restoration to be borne entirely by the 1st Respondent should they fail to comply voluntarily. **1st Respondent’s Written Submissions** 1. In response the 1st Respondent in their submissions strongly opposes the Further Amended Petition, initially brought by forty-eight individuals but now prosecuted solely by Jane Ngige after the other forty-seven petitioners formally withdrew. The 1st Respondent reveals that these withdrawals occurred because the members of the Magoko Ladies' Group never authorized the suit, held no meetings to deliberate on filing a case, and did not instruct the petitioners' advocates, rendering the initial authority or resolution fraudulent. Furthermore, the 1st Respondent contends that the current Petition is frivolous, vexatious, and malicious. Far from being unaware of the development on Plot L.R. No. 4871/120 in Kikuyu, Kiambu County, the remaining Petitioner had actual knowledge of the project and even leased out space to the developer for the storage of construction materials. 2. Regarding the allegations of inadequate water, sanitation, and environmental licensing, the 1st Respondent asserts that all requisite statutory approvals were fully complied with and obtained. While NEMA and the National Construction Authority (NCA) initially served notices in July 2020 regarding minor issues such as the lack of dust screens and a proper project signboard the developer promptly rectified these oversights. Consequently, the Kiambu County Director of Environment lifted all suspension orders, and the developer secured an NCA Certificate of Compliance alongside the primary Environmental Impact Assessment (EIA) License. To address water needs, the 1st Respondent submits that the 1st Respondent further submits that the Change of Use from a single residential dwelling to multi-dwelling apartments was conducted in strict compliance with the law. Public participation was robustly facilitated through a large, highly visible onsite public notice and a statutory advertisement published in *The Star* Newspaper on 7th August 2018. The development applications were subsequently vetted and recommended for approval by the County Planning Technical Committee, resulting in the lawful issuance of development permissions, approved architectural plans, and a construction permit. Because neither the Petitioner nor any neighbor lodged an objection within the statutory fourteen-day advertising window, and because the Petitioner failed to utilize the established administrative dispute channels by appeals to the Liaison Committee, the planning permissions stand as legally binding. the developer conducted a Hydrogeological Survey, obtained a no objection letter from the Kikuyu Water Company Ltd on the condition of maintaining a dual supply, and received official drilling authorization (Ref No: WRMA/30/NRB/3BA/19369/G) from the Water Resources Authority (WARMA), followed by a specific NEMA borehole drilling license. 3. The 1st Respondent further submits that the Change of Use from a single residential dwelling to multi-dwelling apartments was conducted in strict compliance with the law. Public participation was robustly facilitated through a large, highly visible onsite public notice and a statutory advertisement published in *The Star* newspaper on 7/08/2018. The development applications were subsequently vetted and recommended for approval by the County Planning Technical Committee, resulting in the lawful issuance of development permissions, approved architectural plans, and a construction permit. Because neither the Petitioner nor any neighbor lodged an objection within the statutory fourteen-day advertising window, and because the Petitioner failed to utilize the established administrative dispute channels by appeals to the Liaison Committee, the planning permissions stand as legally binding. 4. On the constitutional allegations, the 1st Respondent argues that the Petition fails to meet the threshold of precision and proof required for constitutional litigation. Under the authority of the seminal case **Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272**, a party seeking constitutional redress must plead their case with a reasonable degree of precision, clearly identifying the provisions violated and the exact manner of infringement. This standard is reinforced by **Kiambu County Tenants Welfare Association vs Attorney General & Anor (2017) eKLR**, which dictates that simply citing constitutional articles is insufficient without establishing the nature and extent of the injury suffered. The 1st Respondent also relies on **Kiarie & Another v Moderm Precast (K) Ltd & 2 Others [2022] KEHC 12618 (KLR)** and **Mumo Matemo v Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR** the latter of which incorporates the holding in **Thorp v Holdsworth (1876) 3 Ch D 637 at 639** to emphasize that procedural rules and precise pleadings are vital tenets of substantive justice. Additionally, citing the Supreme Court decision in **Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others,** the 1st Respondent argues that there must be a clear link between the aggrieved party, the constitutional provision, and the manifestation of the violation, which the Petitioner has failed to prove regarding Articles 42 and 43 of the Constitution. 5. Finally, the 1st Respondent submits that the demolition and restoration orders sought by the Petitioner are entirely impractical, malicious, and have been overtaken by events. The high-rise apartment building is fully complete and has been occupied by residential tenants for over two years. The Petitioner has acted in bad faith by concealing that the immediate neighborhood is characterized by numerous other multi-story residential buildings, including a massive government affordable housing development comprising over one thousand, one hundred and forty units. Because the developer successfully resolved previous localized issues regarding the sewer system, and because the Petitioner has failed to demonstrate any tangible environmental harm or personal loss, the 1st Respondent prays that the Court dismiss the Further Amended Petition with costs, in line with the established principle that costs follow the event. **Issues for Determination** 1. Having carefully considered the pleadings, the Replying Affidavits, and the rival submissions, three issues crystallise for determination: 2. *Whether the sole surviving Petitioner, Jane Ngige, possesses the requisite locus standi to prosecute the Further Amended Petition after the withdrawal of the other forty-seven petitioners* 3. *Whether the process leading to the issuance of the Notification for Approval of Development Permission – Change of Use dated 25/09/2018 complied with Article 10 of the Constitution on public participation and with Sections 41, 36 and 52 of the repealed Physical Planning Act; and,* 4. *Whether, on the totality of the evidence, the Petitioner has established a violation of the right to a clean and healthy environment under Articles 42 and 43 of the Constitution sufficient to warrant the drastic remedy of demolition and restoration.* **Analysis and Determination** 1. On the question of standing, the 1st Respondent's strongly opposes the Further Amended Petition, initially brought by forty-eight individuals but now prosecuted solely by Jane Ngige after the other forty-seven petitioners formally withdrew. The 1st Respondent contend that the withdrawal of forty-seven co-petitioners and the disavowal of authority by the Magoko Ladies' Group renders the remaining suit an abuse of process which cannot succeed in constitutional environmental litigation of this nature. Kenyan jurisprudence has decisively moved away from restrictive standing rules. In **Matemu v Trusted Society of Human Rights Alliance & 5 Others (Civil Appeal 290 of 2012) Petition No. 19 of 2012)** the Court of Appeal was emphatic that the 2010 Constitution liberalised access to Courts so that any person, acting in their own interest or in the public interest, may approach the Court to protect constitutional rights. That liberalisation is reinforced by Article 70 of the Constitution, which specifically extends standing in environmental matters to any person alleging that a right to a clean and healthy environment has been, is being, or is likely to be denied, violated, infringed or threatened, without the requirement of proving personal loss or injury that would ordinarily attach under the common law. 2. Thus, a resident living in the immediate vicinity of an eight-floor high-rise, whose amenity, water table, drainage and physical safety are directly implicated by the development, plainly falls within this class, regardless of the fate of her co-petitioners' authority to sue. However, the 1st Respondent's procedural challenge is not entirely without force when weighed against the precision doctrine established in **Anarita Karimi Njeru v The Republic (1976-1980) KLR 1272,** where the Court of Appeal held that a party seeking constitutional redress must 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. This principle, tempered by **Mumo Matemu's** clarification that precision need not be mathematical, nonetheless obliges the Petitioner to demonstrate a discernible nexus between herself, the impugned conduct, and the constitutional provision said to be violated a nexus that is more readily established here given her proximity to the plot than it would be for the withdrawn petitioners collectively invoking a generalized harm. 3. Turning to public participation, the evidentiary record substantially undermines the Petitioner's claim of total exclusion, even as it exposes genuine irregularities. The 2nd Respondent has produced a planning brief, an on-site notice, and a newspaper advertisement published in The Star on 7/08/2018, none of which attracted any objection within the statutory fourteen-day window a factual matrix that, if credited, would satisfy the threshold. Yet the burden of proving that participation was substantively meaningful, and not merely formalistic, rests on the project proponent and approving authority, as affirmed in **Irungu v Hayer Marquis Limited & 2 Others (Environment & Land Petition E034 of 2021) [2024] KEELC**, and uncontroverted allegations of inadequate consultation of contiguous neighbours, as in **Mwingi Court Residents Associations v Barasa t/a Gabasa (K) Enterprises & 3 Others [2025] KEELC 6766 (KLR)**, must stand where unrebutted by cogent evidence. The Supreme Court's guidance in **British American Tobacco Ltd v Cabinet Secretary (Civil Appeal 112 of 2016) [2017] KECA 763 (KLR)** is instructive here: participation is not a matter of box-ticking but demands that the public be given real and sufficient information and a genuine opportunity to shape the outcome. This echoes the reasoning of the South African Constitutional Court in **Doctors for Life International v. Speaker of the National Assembly, et al. [2006] ZACC 11**, where Ngcobo J held that the duty to facilitate public involvement will often require a meaningful opportunity to be heard in the making of laws that will govern them, a formulation of comparative persuasive value in reviewing administrative and planning processes that affect a residential community's living environment. 4. However, as international law expert Philippe Sands notes in **Principles of International Environmental Law**, ***"the right to participate is predicated on the active vigilance of the citizen, who cannot sleep on their rights and then claim exclusion."***Because the Petitioner failed to submit any objections within the statutory fourteen-day window or exhaust her administrative remedies before the local Physical Planning Liaison Committee, she cannot now claim her right to participation was violated. 5. Kenyan environmental scholarship, notably the writing of Professor Patricia Kameri-Mbote and Collins Odote on environmental governance and the constitutionalisation of environmental rights in Kenya, has consistently argued that Article 42 must be read together with Article 10's national values, so that public participation in planning and environmental decision-making is not a mere procedural Courtesy but a substantive precondition to the legality of the resulting authorisation; that scholarly position finds firm doctrinal support in the authorities cited above and guides this Court's approach to the change-of-use approval 6. The more troubling illegality, however, lies not in participation but in sequencing and compliance. It is undisputed that the Change of Use was granted on 25/09/2018, roughly eleven months before the EIA licence issued on 21/08/2019, an inversion of the mandatory order established under Section 36 of the repealed Physical Planning Act and Regulation 4 of the Environmental (Impact Assessment and Audit) Regulations, both of which require environmental clearance to precede, not follow, implementation of a development. This is not a mere technical slip; it defeats the very purpose of environmental impact assessment as a precautionary and preventive tool, a purpose recognised internationally in Principle 17 of the Rio Declaration on Environment and Development and echoed in Principle 21 of the Stockholm Declaration, both of which anchor the polluter-prevents-first ethic that Kenya's EMCA and the Constitution have domesticated. 7. Similarly, the admitted breach of the 50% plot-coverage condition in the 1st Respondent's own submissions conceding 61% percent coverage against a stipulated maximum constitutes a material departure from the terms of the very permission relied upon to legitimise the development, bringing to mind the participatory and precautionary principles embedded in the Aarhus Convention and Article 24 of the African Charter on Human and Peoples' Rights, both of which Kenya, as a norm-exporting jurisdiction on environmental constitutionalism, has drawn upon in shaping Articles 42, 69 and 70. At the same time, the 1st Respondent's evidence of subsequent regularisation the NEMA and NCA compliance certificates, the hydrogeological survey, the WRA drilling authorisation, and the Kikuyu Water Company's no-objection letter together with the undisputed fact that the building has stood complete and tenanted for over two years, brings to the fore the constitutional protection of property under Article 40 and the broader international recognition of the right to property in Article 17 of the Universal Declaration of Human Rights. 8. A Court exercising its remedial discretion in environmental constitutional litigation must therefore weigh the precautionary and restorative imperative of Article 42 against the disproportion of ordering wholesale demolition of a completed, occupied, and largely regularised structure, mindful that demolition is a remedy of last resort reserved for cases where no lesser measure can vindicate the constitutional right. Balancing these considerations, and mindful of the need to build coherent and proportionate jurisprudence in Kenya's developing body of planning and environmental constitutional law, the Court must consider the appropriate orders to issue. In the prevailing circumstances the Court has observed that the sequencing of the Change of Use approval ahead of the EIA licence contravened Section 36 of the repealed Physical Planning Act and Regulation 4 of the Environmental (Impact Assessment and Audit) Regulations, and that the 1st Respondent’s construction beyond the sanctioned plot coverage breached Clause 12 of the approval, rendering the development permission voidable rather than void ab initio. 9. The right to property, protected under Article 17 of the Universal Declaration of Human Rights and Article 14 of the African Charter on Human and Peoples' Rights, must be harmonized with environmental protection. As pioneering environmental jurist Edith Brown Weiss writes in her theory of intergenerational equity, ***"each generation holds the Earth in trust for future generations, requiring us to conserve options, quality, and access, but without halting necessary sustainable development."*** Demolishing a fully completed, occupied multi-dwelling apartment block in a high-density zone where the government itself has built a 1,140-unit housing development would violate the principle of proportionality. In **Kiarie & another v Moderm Precast (K) Ltd & 2 others [2022] KEHC 12618 (KLR),** the Court cautioned that; ***"The law cannot be used to engineer economic ruin under the guise of environmental protection when minor infractions can be mitigated through compensatory or regulatory compliance."*** 1. Thus, to resolve these issues and establish a balanced ecological-developmental jurisprudence, this Court is of the view that the prayers for demolition and restoration are overly harsh and instead prefers to issue orders structured under the DENT (Development, Environment, Necessity, and Technology) framework. Balancing sustainable development with strict compliance. 2. On the rights of the Petitioner, there is no denying that the Petitioner's rights under Articles 42 and 43 have been partially infringed by these breaches, essentially this means that the public participation was partially but not wholly absent. At the same time since the process of approval came after the development it is imperative to have the 1st Respondent directed to undertake and file with the 2nd Respondent and NEMA a comprehensive environmental audit addressing storm-water management, borehole sustainability, and structural conformity with the approved architectural drawings. Following this the 2nd Respondent given its powers has to impose remedial conditions including partial demolition or setback correction of any non-conforming portion exceeding the fifty percent coverage limit. This disposition affirms that Article 70 standing is generously construed for genuine environmental grievances, that sequencing and coverage violations are justiciable illegalities independent of the participation question, and that demolition remains a proportionate remedy calibrated to the specific illegality proved rather than an automatic consequence of any planning irregularity. **Final Orders** 1. Having found that the Change of Use approval was issued out of the sequence mandated by Section 36 of the repealed Physical Planning Act and Regulation 4 of the Environmental (Impact Assessment and Audit) Regulations, and that the development departed materially from the plot-coverage condition attached to that approval, while also finding that the Petitioner has not established a total absence of public participation and that the structure has stood complete, occupied, and substantially regularised for over two years, the Court proportions its remedy to the illegality actually proved rather than granting the wholesale demolition sought. Accordingly, it is hereby ordered: 2. ***A declaration is issued that the issuance of the Change of Use approval dated 25/09/2018 ahead of the Environmental Impact Assessment licence obtained on 21/08/2019 contravened Section 36 of the repealed Physical Planning Act and Regulation 4 of the Environmental (Impact Assessment and Audit) Regulations, and is to that extent unlawful.*** 3. ***A declaration is issued that the 1st Respondent's construction at approximately 61% percent plot coverage, against the 50% maximum stipulated in Clause 12 of the Change of Use approval, constitutes a breach of the terms of that approval. Therefore the 1st Respondent is ordered to pay a compensatory environmental penalty of Kenya Shillings One Million (Kshs. 1,000,000/=) to the Kiambu County Environmental Trust Fund within sixty (60) days for exceeding the 50% plot coverage limit.*** 4. ***A declaration is issued that the Petitioner's rights under Articles 42 and 43 of the Constitution have been infringed to the limited extent found in Orders 1 and 2 above.*** 5. ***The prayer for an order compelling wholesale demolition of the structures on Plot LR No. 4871/120 is declined.*** 6. ***The 1st Respondent shall, within ninety (90) days of this Judgment and at its own cost, commission a joint, comprehensive environmental and structural audit of the development to ensure the borehole, waste management systems, and sewer lines strictly comply with EMCA standards and file with the 2nd Respondent and NEMA a comprehensive post-construction environmental audit addressing storm-water management, borehole sustainability and water supply adequacy, structural conformity with the approved architectural drawings, and the extent of the coverage excess over the sanctioned 50%.*** 7. ***The 2nd Respondent, upon receipt of the audit in Order 5, shall within thirty (30) days determine and impose such remedial conditions as are necessary to bring the development into conformity with the approved plot ratio and coverage, which conditions may include structural setback, partial removal of any non-conforming extension, or such other measure as is proportionate, and shall communicate its determination to the parties.*** 8. ***In default of the 1st Respondent complying with Orders 5 and 6 within the timelines set, the Petitioner and the 2nd Respondent are authorised to appoint a licensed auctioneer or contractor to effect the remedial or corrective works determined under Order 6, at the cost of the 1st Respondent, recoverable as a civil debt.*** 9. ***The 2nd Respondent is restrained from issuing a Certificate of Occupation in respect of the development on Plot LR No. 4871/120 until the audit required under Order 5 is filed and the remedial conditions, if any, imposed under Order 6 are certified complete.*** 10. ***A declaration is hereby issued that the 2nd Respondent (Kiambu County Government) must henceforth establish and publicize an accessible, available, affordable user-friendly digital physical planning registry to ensure local residents can easily access and object to proposed changes of user, fulfilling the constitutional necessity of public participation.*** 11. ***In default of the 1st Respondent paying the environmental penalty within the stipulated period, the 2nd Respondent is authorized to place a statutory charge over Plot L.R. No. 4871/120 until full payment is made.*** 12. ***For the avoidance of doubt, nothing in this Judgment disturbs the water and borehole licences, the EIA licence, or the NCA Certificate of Compliance already issued to the 1st Respondent, save to the extent that the audit under Order 5 identifies specific non-compliance requiring correction.*** 13. ***Given the divided outcome and the public-interest character of the litigation, each party shall bear its own costs.*** 14. Orders Accordingly. **DATED, SIGNED AND DELIVERED AT THIKA ON THIS 27TH DAY OF JULY 2026.** ………………….. **MOGENI J** **JUDGE** **In the Presence of:** **Petitioner - Absent** **Mr. Ian Luanda for 1st Respondent** **2nd Respondent – Absent** **Mr. Melita - Court Assistant** ………………….. **MOGENI J** **JUDGE**