Njoroge & 2 others (Suing on their own Behalf and on Behalf of Members of Mugumoini Residents Association) v Muringu & 4 others

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. E030 OF 2026** **DAVIS GEORGE NJOROGE MUNIU - 1ST PLAINTIFF** **JOHN KINYANJUI & PETER KARIUKI** **(suing on their own behalf and on behalf of** **members of MUGUMOINI RESIDENTS** **ASSOCIATION - 2ND PLAINTIFF** **VS** **VIRGINIAH WANJIRU MURINGU - 1ST DEFENDANT** **ROMAN KURIA MUIRURI - 2ND DEFENDANT** **AND** **NAIROBI CITY COUNTY - 1ST INTERESTED PARTY** **NATIONAL ENVIRONMENT** **MANAGEMENT AUTHORITY - 2ND INTERESTED PARTY** **NATIONAL CONSTRUCTION AUTHORITY - 3RD INTERESTED PARTY** **RULING** **(In respect of the Plaintiff's Chamber Summons dated 6/7/2026)** 1. It is the Chamber Summons dated 6/7/2026 filed by the Plaintiff seeking the following orders; 1. The Court do grant leave to the Applicants /Plaintiffs to institute and prosecute the suit on their own behalf and in a representative capacity on behalf of the members of Mugumoini Residents Association 2. Pending the hearing and determination of the suit, temporary conservatory injunctive orders be issued restraining the Respondents, whether by themselves, their servants, agents, employees or contractors, from continuing with any construction or from selling, leasing, occupying or otherwise dealing with the impugned development works on LR No Nairobi Block 110/282 [suit land]. 3. That the interested parties jointly or severally inspect the suit property within such time as the Court may direct and file a report indicating: the approved development plan; the current stage of construction; and whether the development complies with the applicable planning, environmental and building regulations. 4. That the interested parties be restrained from issuing any further approvals or completion certificates in respect of the impugned development without the prior leave of the Court. 5. That the office commanding the Thome Police Post or officer commanding Kasarani Police Station do provide security supervision and all the necessary assistance to ensure compliance with and enforcement of the orders of this Court. 6. Costs be provided for 2. The 1st Applicant is the registered owner of the suit land, LR No Nairobi/Block 110/282, which adjoins the suit land. 3. The Applicants' suit challenges the Respondents' alleged unlawful development on the suit land, asserting that Mugumoini Estate (hereinafter referred to as 'the Estate') is designated as a low-density residential area under the planning and zoning regulations administered by the 1st Interested Party. These regulations permit the construction of townhouses with only ground and first floors. It is further contended that the estate development is restricted exclusively to single-family residential dwellings. It is alleged that the development has not adhered to the prescribed building lines and side setbacks; has exceeded the permitted plot ratio, site coverage, and overall development density; has included the construction of an additional floor beyond the authorised number; and that such construction endangers the property of the 1st Applicant and other residents, as well as their constitutional rights to a clean and healthy environment, privacy, proper ventilation, and quiet enjoyment. 4. Furthermore, allowing the construction of the additional floor to proceed would degrade the neighbourhood's character and reduce the value of surrounding properties. It would also place additional pressure on the estate's existing public utilities, such as the water supply, sewerage system, reticulation, and roads, which are designed to accommodate a low-density residential area. 5. Despite repeated complaints, the interested parties have failed to initiate any enforcement action. Unless restrained, the construction will proceed to completion, thereby rendering the lawsuit nugatory. The Applicants were urged to establish a prima facie case with a high likelihood of success and to show that they risk irreparable harm that damages cannot adequately remedy. 6. The 1st Respondent has filed a preliminary objection against the Suit and the chamber summons on the grounds that; 7. this Honourable Court lacks jurisdiction to entertain the subject matter in dispute as set out in the Plaintiffs’ suit and application both dated 6th July 2026 as the same offend the doctrine of exhaustion of statutory remedies. 8. the Plaintiffs’ suit and application are premature, misconceived, incompetent and improperly before this Honourable Court for failure to exhaust the dispute resolution and enforcement mechanisms established under the Physical and Land Use Planning Act, No. 13 of 2019. 9. the issues raised in the Plaint and the Notice of Motion relate to development permission, enforcement notices, compliance with approved building plans and alleged breaches of planning laws, matters which fall in the first instance within the mandate of the relevant County Planning Authority and the statutory mechanisms established under Sections 72, 78 and 80 of the Physical and Land Use Planning Act. 10. the Plaintiffs have invoked the jurisdiction of this Honourable Court without first pursuing the statutory remedies provided under the Physical and Land Use Planning Act. 11. the Plaintiffs have invoked the jurisdiction of this Honourable Court without first pursuing the statutory remedies provided under the Physical and Land Use Planning Act, contrary to the doctrine of exhaustion as now firmly established in law. 12. in so far as the Plaintiffs challenge the validity, legality and implementation of the Environmental Impact Assessment Licence issued in respect of the suit development and seek enforcement of environmental obligations, such disputes fall within the original jurisdiction of the National Environment Tribunal pursuant to Section 129 of the Environmental Management and Co-ordination Act, Cap. 387. 13. by virtue of the provisions of the Physical and Land Use Planning Act and the Environmental Management and Co-ordination Act, this Honourable Court lacks original jurisdiction to entertain the Plaintiffs’ suit and application and the Plaintiffs may only approach this Honourable Court as an appellate Court and on points of law only. 14. Consequently, the Plaint dated 6th July 2026 and the Notice of Motion dated 6th July 2026 are incompetent, bad in law and liable to be struck out with costs. 15. In further opposition to the Chamber summons aforestated, the 1st Respondent filed a replying affidavit sworn on 6/7/26 by Geoffrey Rutere, the contractor undertaking the project and an employee of the 1st Respondent. In summary, he stated as follows; 1. The suit land is owned by the 1st and 2nd Respondents. 2. As an application seeking injunctive relief, it is incompetent and fatally defective because the Applicants have invoked the wrong procedure, namely a chamber summons instead of a notice of motion, as outlined in the Civil Procedure Rules. 3. Applicants have bypassed the mandatory statutory dispute resolution mechanisms established by law. 4. To the extent that the Applicants' grievances pertain to the change of use, planning approvals, development control, and environmental compliance, all of which fall within the statutory mechanisms established under Physical and land Use Planning Act [PLUPA] and the Environmental Management and Co-ordination Act [EMCA], the suit is deemed premature due to the failure to exhaust the internal procedures outlined in those Acts of Parliament. 5. On 17/7/24, the 1st Respondent applied for a change of user from the 1st Interested Party, from a single-dwelling residential unit to multi-dwelling residential units. 6. Upon consideration, the 1st Interested Party approved the change of user on 23/7/2024 under PLUPA-COU-002242-N. 7. The 1st Respondent then submitted building plans for the proposed construction of the two townhouses under PLUPA-BPM- 005418-N on 26/8/24. 8. The building plans were approved on 28/11/24, and construction commenced in earnest. 9. With reference to application No. PLUPA-BPM-007324-N dated 7/6/25, the 1st Respondent sought and obtained an amendment to the approved development plans, which was approved on 26/11/25. The requisite approved architectural and structural drawings were also approved. 10. In compliance with the provisions of EMCA, the 1st Respondent sought and obtained the Environmental Impact Assessment Licence No. NEMA/EIA/PSL/38561, under reference No. NEMA/EIA/PSR/57907, on 20/5/2025, authorising the construction of two multi-storey townhouses together with related facilities. 11. A certificate of compliance was sought and obtained from the National Construction Authority, confirming that the project complies with Section 5 of the NCA Act and with Regulation 17 of the National Construction Authority, Regulation 2014. 12. The development is being undertaken in compliance with the law; 13. Regarding the matter of estate regulations and the constitution, the 1st Respondent asserts that she obtained her property well prior to the establishment of the estate association, and as such, she is neither a member nor subject to the covenants outlined therein. 14. Furthermore, the Applicants were unable to demonstrate that any sanctioned physical planning plan, county-approved development control framework, or associated restrictions on planning and property titles were enforceable or binding on the 1st Respondent. In any event, estate rules and regulations cannot override statutory approvals, licences, and permits lawfully issued by competent authorities charged with development control and the development frameworks. 15. There has been no enforcement notice, stop order, compliance notice, demolition notice, or any directive requiring the suspension, alteration, or demolition of the development. Nor have the Applicants demonstrated any adverse report from any statutory authority indicating that the development violates the law, approved permits, or any regulatory requirement. 16. All approvals issued so far remain valid, subsisting and binding, and have never been revoked, suspended or successfully challenged in a Court of law. 17. No expert report has been produced to substantiate the allegations concerning diminished privacy, reduced natural light, inadequate ventilation, or compromised quiet enjoyment of the Applicants' property. Furthermore, it is averred that a multistory residential development with additional floors is situated behind the Applicants' property. 18. There is no evidence of imminent or irreparable injury that cannot be adequately compensated through an award of damages. 19. Conversely, the halt to construction activities is causing substantial financial losses to the 1st Respondent, attributable to expenditure on consultants, labourers, approvals, and construction works. Any further disruption is likely to result in financial setbacks, project delays, contractual liabilities, and increased construction costs, notwithstanding the development's compliance with all applicable regulations and laws. 20. Upon the granting of an interlocutory injunction, the 1st Respondent submitted that the Applicants have not established a prima facie case with a probability of success, have failed to demonstrate any irreparable harm that cannot be remedied through damages, and that the balance of convenience strongly supports permitting the continuation of the construction, which has involved significant investments. 21. The Court was urged to dismiss the application dated 6/7/26. 16. The application was opposed by the 1st Interested Party via the Replying affidavit sworn by Wilfred Masinde, the Deputy Director, Development Inspection and Planning Litigation in the Nairobi City County Government, the 1st Interested Party. He averred as follows; 1. Agreed with the 1st Respondent that the change of user, development permissions, and amended development permission were sought and granted by the 1st Interested Party on 23/7/24, 28/11/24, and 26/11/25, respectively, in accordance with the area's development control policy and Zoning Regulations. 2. The approval was conditional upon the Project proponent undertaking an EIA and obtaining a NEMA licence before the commencement of the works. 3. The policy permits the development of two townhouses on a parcel of land with a minimum plot size of 0.25 acres. As the subject land is 0.5 acres, the proposed development of two townhouses was permitted. 4. Following concerns raised by the residents of the estate regarding the development, a site visit was conducted by its officers, who compiled a report finding that the developer is implementing the development in accordance with the approved plans, which provide for two townhouses of two floors each. The development complies with zoning regulations and is therefore not out of character. 5. That on 9/7/26, the developer was issued with a stop order by the 1st Interested Party, enabling the 1st Respondent to provide a site status report. Upon satisfaction, the 1st Interested Party cleared the construction to proceed. 6. In conclusion, the construction ought to be allowed to proceed. 17. The 2nd and 3rd Interested Parties did not oppose the application and the Preliminary Objection. 18. On 21/07/2026, the Court directed that the preliminary objection dated 17/07/2026 and the chamber summons dated 6/07/2026 be heard and determined together by way of written submissions. Despite these directions, only the 1st Respondent and the 1st Interested Party have complied. I have read and considered their submissions. **Analysis and determination** 1. I will deal with the preliminary objection at the outset, for obvious reasons. If it succeeds, the suit and the chamber summons shall stand dismissed. If it fails, I will proceed to determine the chamber summons on its merits. 2. The issues for determination are; 1. Whether leave should be granted in favour of the Applicants to bring a representative suit 2. Whether the preliminary objection is merited 3. Whether the orders sought in the chamber summons are merited. 4. Costs of the preliminary objection and the chamber summons. **Whether leave should be granted to the Applicants to bring a representative suit.** 1. It is disclosed in the plaint that the Applicants are suing on their own behalf and on behalf of the members of the Mugumoini Residents Association. 2. Order 1 Rule 13 of the Civil Procedure Rules allows for filing of a representative suit subject to leave of the Court. It states as follows; ### “**Appearance of one of several Plaintiffs or Defendants for others [Order 1, rule 13]** (1)Where there are more Plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more Defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.(2)The authority shall be in writing signed by the party giving it and shall be filed in the case. 1. Based on various decided judicial decisions, certain characteristics of a representative suit can be identified. The parties involved must share a common grievance, and the relief sought must be advantageous to all individuals whom the Plaintiff intends to represent. Additionally, the number of parties must be sufficient to render individual joinder impractical or inconvenient. Permission must be obtained for the suit to proceed as a representative action. All interested and affected parties must be duly notified of the proceedings. In the context of public interest litigation, the locus standi requirement has been relaxed, and the scope has been expanded to permit parties to approach the Court to enforce rights impacting the general public. 2. In this case, the Applicants have averred that they have brought the suit on their own behalf and on behalf of the residents' association. The Court is satisfied that the group fits the description set out above. 3. Drawing from the case of Kenya Airports Authority v. Mitu-Bell Welfare Society & 12 others [2016] EKLR, the Court emphasised the importance of appropriate representative capacity when managing large groups. The Court also reaffirmed that, although collective actions are encouraged, the party advocating on behalf of the group must have proper authorisation, and the structure of the representation must be explicit to ensure that the judgment effectively binds all members of the class. 4. The Court observes that the Applicants have sworn a verifying affidavit confirming their authority to initiate this litigation. However, pursuant to the precedent set by the Court in Kenya Airports Authority [supra], the Court hereby orders the Applicants to submit the official authorisation in writing within fourteen days. The application is therefore allowed for leave to file a representative suit, subject to the submission of the necessary written approval from the relevant authority. **Whether the preliminary objection is merited** 1. It is a general principle of law that a Court’s jurisdiction derives from the Constitution, a statute, or both. See Samuel Kamau Macharia & Anor –vs- Kenya Commercial Bank Limited & 2 Others [2012] eKLR 2. It is trite law that the jurisdiction of this Court derives from Article 162(2) of the Constitution read together with the provisions of Section 13 of the ELC Act. 3. According to the ELC Act, the Court may make any order and grant any relief as the Court deems fit and just, including (a) interim or permanent preservation orders, including injunctions; (b) prerogative orders; (c) awards of damages; (d) compensation; (e) specific performance; (g) restitution; (h) declarations; or (i) costs 4. It is the case of the 1st Respondent and the 1st Interested Party that the appropriate forum for adjudication of the Plaintiffs' grievances, which pertain to planning, zoning, and development disputes, would have been the National Environmental Tribunal [NET] and the Liaison Committee. Additionally, it is asserted that the Plaintiffs have prematurely invoked this Court's original jurisdiction. 5. Pursuant to section 61(4) of the Physical and Land Use Planning Act [PLUPA], any party adversely affected by the Liaison Committee's decision has the right to lodge an appeal with the Environmental Land Court (ELC). Similarly, a party aggrieved by a decision of NET may appeal to this Court. In the view of the 1st Respondent and the 1st Interested Party, the Plaintiffs have instituted this suit in an attempt to bypass the statutory mechanisms established under Sections 61(3) and 61(4) of the PLUPA, as well as section 129 of the EMCA. 6. As to why the Plaintiffs failed to move the Liaison Committee and the NET, the answers are found in the provisions set out below; Section 61(3) and (4) of PLUPA provides as follows; An Applicant or an interested party that is aggrieved by the decision of a county executive committee member regarding an application for development permission may appeal against that decision to the County Physical and Land Use Planning Liaison Committee within fourteen days of the decision by the county executive committee member and that committee shall hear and determine the appeal within fourteen days of the appeal being filed.(4)An Applicant or an interested party who files an appeal under sub-section (3) and who is aggrieved by the decision of the committee may appeal against that decision to the Environment and Land Court. 1. Equally under section 129 of the EMCA provides as follows; “Any person who is aggrieved by—(a)the grant of a licence or permit or a refusal to grant a licence or permit, or the transfer of a licence or permit, under this Act or its regulations;(b)the imposition of any condition, limitation or restriction on the persons licence under this Act or its regulations;(c)the revocation, suspension or variation of the person's licence under this Act or its regulations;(d)the amount of money required to paid as a fee under this Act or its regulations;(e)the imposition against the person of an environmental restoration order or environmental improvement order by the Authority under this Act or its Regulations, may within sixty days after the occurrence of the event against which the person is dissatisfied, appeal to the Tribunal in such manner as may be prescribed by the Tribunal.(2)Unless otherwise expressly provided in this Act, where this Act empowers the Director-General, the Authority or Committees of the Authority or its agents to make decisions, such decisions may be subject to an appeal to the Tribunal in accordance with such procedures as may be established by the Tribunal for that purpose.(3)Upon any appeal, the Tribunal may—(a)confirm, set aside or vary the order or decision in question;(b)exercise any of the powers which could have been exercised by the Authority in the proceedings in connection with which the appeal is brought; or(c)make such other order, including orders to enhance the principles of sustainable development and an order for costs, as it may deem just;(d)if satisfied upon application by any party, issue orders maintaining the status quo of any matter or activity which is the subject of the appeal until the appeal is determined;(e)if satisfied upon application by any party, review any orders made under paragraph (a).(4)Any status quo automatically maintained by virtue of the filing of any appeal prior to the commencement of subsection (3) shall lapse upon commencement of this section unless the Tribunal, upon application by a party to the appeal, issue fresh orders maintaining the status quo in accordance with subsection (3)(a). 1. It is mutually agreed between the 1st Respondent and the 1st Interested party that approvals were sought and granted in respect of the change of use from a single dwelling to townhouses; development permission and its subsequent amendment were also granted by the 1st Interested party. The Court notes that the EIA and the NCA certifications were likewise sought and obtained. 2. It is also not in dispute that the 1st Respondent's construction is on the 2nd floor. The Court has perused the photographs annexed to the Applicants' affidavit and agrees with the Applicants that the existing residential houses comprise the ground and 1st floors. The Court understands the Applicants' grievance, inter alia, to be the construction of an additional floor, in this case the 2nd floor. It is their case that this floor is problematic because it will block ventilation and natural light and alter the character of their house designs. 3. The Applicants state that they observed the construction of the additional floor and subsequently sent correspondence to the 1st Respondent and the 1st Interested Party, enquiring into the reasons for the extension. The Court observes that the letters, authored by the Applicants' legal representatives and addressed to the aforementioned parties, are dated June 19, 2026, and July 6, 2026. 4. Reviewing the approval dates for the amendment to the building permit issued on 7/6/25, it becomes evident that, a full twelve months later, the Applicants are beyond the permissible time frame with both the Liaison Committee and the NET. Consequently, these forums are no longer available for the Applicants to voice their grievances. Should the Applicants be held accountable for this time bar? I think not. The 1st Respondent has failed to demonstrate to the Court that she notified the Applicants of the amendment to the building plans issued on 7/6/25, nor that public participation was duly conducted. In the Court's view, this is one of the cases to which an exemption from the doctrine of exhaustion applies. 5. The Court has noted that the objector has not filed a defence to the Plaintiff, and therefore the Court is unable to determine how the Defendant will plead to the Plaintiff's suit, leading to the assumption that the facts pleaded are correct. 6. In the end, I find that the preliminary objection is unmeritorious. It is dismissed. **Whether the orders sought in the chamber summons are merited.** 1. The principles that guide the Court in determining an application of such nature are found in the celebrated case of Giella vs Cassman Brown & Co Ltd [1973] EA 358 as follows: - 2. First, the Applicant must show a prima facie case with a probability of success. 3. Secondly, an interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable harm which would not be adequately compensated by an award of damages. 4. Thirdly, if the Court is in doubt, it will decide an application on a balance of convenience. 5. Has the Applicant established a prima facie case with a probability of success? A prima facie case was defined by the Court of Appeal in Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others (2003) eKLR as follows: - “a prima facie case in a civil application includes but is not confined to a genuine and arguable case”. It is a case which, on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 1. On the face of the case, the Applicants have informed the Court that they were not consulted with respect to the development and, more particularly, the amendment of the building plans to add an additional floor. The 1st Respondent failed to produce evidence of notice to the Applicants. Noting that public participation is now a constitutional tenet, the Court concludes that this is a triable issue that calls for further inquiry. 2. Regarding irreparable harm, the Applicant has averred that the construction changes the character of the estate, diminishes its livability, thereby devaluing it and making it incapable of compensation in terms of damages. In my view, this is a weak point, as property valuations can be estimated mathematically. 3. That said, the balance of convenience favours the granting of the temporary injunction in view of my holding on the issue of prima facie. 4. The Court notes that, as this is a development dispute, time is of the essence in resolving the matter. Accordingly, the injunction is limited to 6 months, within which the Applicants ought to prosecute the plaint to its logical conclusion. 5. In the end, I allow the application as follows; 1. Prayers a, b and e are hereby allowed. 2. In the interests of expeditious disposal of the matter, the prayer for an injunction is limited to 6 months from the date of this ruling, within which time the Plaintiffs ought to have prosecuted the case to its logical conclusion. 3. The Applicants to file and serve the Resolution by the Association mandating them to file suit within 14 days. 4. Costs shall be in favour of the Applicants payable by the 1st Respondent. 6. Orders accordingly **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered online in the presence of:** 1. Mr Makori HB for Mr Kinyanjui for the Plaintiffs 2. Ms Juma HB for Mr Muturi for the 1st Defendant 3. N/A for the 2nd Defendant 4. N/A for the Interested Parties 5. C/A - Mr Amos