https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5095

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCEP PETITION NO. E042 OF 2025** **NORTHERN BLOCK RESIDENTS LIMITED ……………………... PETITIONER** **VERSUS** **AIR VIEW PROPERTIES LIMITED …………………..……….. 1ST RESPONDENT** **NAIROBI CITY COUNTY ………………………………..… 2ND RESPONDENT** **NATIONAL ENVIRONMENT** **MANAGEMENT AUTHORITY …………………………..… 3RD RESPONDENT** **RULING** 1. By a Notice of Motion dated 24th October 2025, brought under Rules 4 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, the Petitioner seeks the following orders: * 1. ***Spent.*** 2. ***Spent.*** 3. ***This Honourable Court be pleased to issue a conservatory order restraining the 1st Respondent, its agents, servants and/or employees from commencing, carrying out and/or continuing any construction, renovations or related works on Land Reference Number 17/433 within Kitisuru Estate pending the hearing and determination of the Petition.*** 4. ***Spent.*** 5. ***This Honourable Court be pleased to issue a conservatory order suspending and/or staying the operation and effect of the licenses and approvals issued by the 2nd and 3rd Respondents for the proposed development on Land Reference Number 17/433 within Kitisuru Estate pending the hearing and determination of the Petition.*** 6. ***Any other orders or reliefs that this Honourable Court deems fit to grant.*** 7. ***Costs of this application be provided for.*** 2. The application is based on the grounds appearing on its face together with the Supporting Affidavit of Ruth Ndesandjo, a member of the Petitioner, sworn on even date. **THE PETITIONER’S CASE** 1. The deponent averred that on 24th November 2023, the 1st Respondent, through its developer, Doric Engineering Limited, issued a notice to the Petitioner’s members residing near Peponi Rise, off Peponi Road, informing them of its intention to construct a restaurant and co-working spaces on the suit property, and invited public comments on the proposed Environmental and Social Impact Assessment (ESIA). 2. She further averred that by a letter dated 15th January 2024, Kitisuru Residents Association, a member of the Petitioner, objected to the proposed development on the grounds that the suit property is located within a low-density residential zone in Kitisuru, which is historically designated for single-dwelling residential use under the 2nd Respondent's zoning regulations. She argued that members raised concerns about traffic congestion, noise pollution, water shortages, and the degradation of green spaces in opposition to the project. 3. Despite receiving these objections, the 1st Respondent issued a further notice on 27th February 2024, inviting affected parties to attend a public consultative meeting regarding the proposed development. By a letter dated 5th March 2024, the Petitioner objected to the conduct of the ESIA process on three grounds: failure to publicise the details of the proposed development; omission of material particulars from the notice of 27th February 2024; and the lack of contact information for the affected parties. 4. The deponent asserts that the 1st Respondent neither furnished the requested information nor responded to that letter, nor to the Petitioner's subsequent letter dated 19th March 2024. She explained that the 1st Respondent held a public consultative meeting on 20th March 2024 without sharing any documentation regarding the proposed development. 5. She asserted that the 1st Respondent later obtained building plan approvals from the 2nd Respondent and an ESIA licence from the 3rd Respondent without meaningful consultation with affected residents. She further asserted that the proposed use of the suit property is inconsistent with the applicable zoning and land-use designations and would fundamentally alter the estate's residential character. She argued that the suit property had been cleared and levelled, construction materials were being delivered, and a construction board had been erected, without the Petitioner being given any opportunity to examine the ESIA report. 6. The deponent asserts that the approvals and licences issued by the 2nd and 3rd Respondents are irregular, unlawful, and violate the constitutional rights of the Petitioner and its members. The deponent contends that unless conservatory orders are granted, the Petitioner will suffer irreparable harm that cannot be remedied by damages. Conversely, she argued that granting such orders would not prejudice the 1st Respondent. **THE 1ST RESPONDENT’S CASE** 1. The 1st Respondent filed a Replying Affidavit sworn by Zuber Navaz Madatali Premji, its Project Manager, in opposition to the application. 2. The deponent contends that the application is fatally defective as it offends Sections 125 and 129 of the Environmental Management and Coordination Act, as well as Sections 40(4), 40(7), 76 and 80 of the Physical and Land Use Planning Act. He contended that the Court lacks jurisdiction to hear and determine this matter. He asserted that the Petitioner approached the Court with unclean hands by concealing material facts. 3. He further asserted that the 1st Respondent is the registered owner of L. R No. 17/433, Kitisuru, Westlands, Nairobi, having purchased it in 2019. He argued that the property was in the final stages of development for a Retail Exhibition and Restaurant, with all necessary licences, permits, and approvals obtained in accordance with the relevant procedures. 4. He averred that the 1st Respondent applied for a change of use from single-dwelling to commercial in 2023, in 2023, placed a public notice at the site, and published an advertisement on 23rd May 2023 in a nationwide newspaper, each offering a 14-day period for objections. He stated that no objections were received in response to either notice, and as a result, the 2nd Respondent issued a Change of Use on 20th July 2024. 5. He further averred that upon application, the 2nd Respondent approved the proposal along with the architectural plans and drawings through a Notification of Approval dated 1st November 2023. 6. He explained that the 1st Respondent subsequently engaged an ESIA expert who conducted public participation in accordance with the relevant legislation. He averred that the ESIA Comprehensive Project Report incorporated a stakeholder consultation forum form from the Kitisuru Residents Association dated 20th January 2024. An addendum to the ESIA report was subsequently prepared following NEMA's comments of 17th April 2024, which included the Petitioner's objections, including its letter dated 21st March 2024. Subsequently, the 3rd Respondent issued a NEMA Licence and Approval on 11th June 2024. 7. The deponent asserts that the Petitioner's Supporting Affidavit confirmed that public participation took place, and therefore, the claim that the process is a sham is unfounded. The deponent contends that the Petitioner was granted an opportunity to ventilate its objections but chose not to do so. He argued that, contrary to the Petitioner's averments, the development was nearing completion as shown by annexed photographs. 8. He argued that, based on the advice of the site engineers, any pause at this advanced stage of construction would adversely affect the structural stability of the building, which could require demolishing the entire development. He contended that the Petitioner has not provided any undertaking regarding damages which it would be unable to bear such costs. 9. The deponent asserts that the application should be dismissed on the grounds that the Petitioner is estopped from asserting ignorance of the development after participating in the public consultation process; that it has approached the Court with unclean hands; that it has failed to establish a prima facie case; that it has not demonstrated irreparable injury that cannot be remedied through damages; and that the balance of convenience does not favor it. 10. The application was canvassed by way of written submissions. **THE PETITIONER’S SUBMISSIONS** 1. The Petitioner filed its submissions dated 20th February 2026. 2. On behalf of the Petitioner, Counsel submitted that the sole issue for determination is whether the Court should grant the conservatory orders sought. 3. Counsel submitted that the Petitioner has met the threshold for the grant of a conservatory order. To support this point, reliance was placed on **Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] KEHC 4297 (KLR) and Munya v Kithinji & 2 others [2014] KESC 30 (KLR).** 4. Regarding the issue of prima facie, Counsel relied on **Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR)** to submit that the Petition involves weighty constitutional and statutory violations, including the right to a clean and healthy environment, access to information, fair administrative action, and the failure to conduct meaningful public participation. 5. Counsel further submitted that the 1st Respondent acknowledged in its Replying Affidavit that the Petitioner and its members had raised objections regarding zoning compliance, increased density, traffic congestion, sewerage capacity, and environmental degradation. Counsel argued that despite these objections, the 2nd and 3rd Respondents proceeded to issue the impugned approvals and licences. 6. Counsel argued that crucial documents related to the development were withheld from the Petitioner despite repeated requests and were only disclosed through the Replying Affidavit filed after the Petition. It was also submitted that the public participation meetings held were a sham, as the Respondents failed to demonstrate how the Petitioner's concerns were incorporated in the approval process. To support this argument, reliance was placed on **Gakuru & others v Governor Kiambu County & 3 others [2014] KEHC 7516 (KLR),** where the Court stated that public participation must be real and not illusory. 7. On whether the Petitioner would suffer prejudice if the conservatory orders are not granted, Counsel relied on the photographs annexed to the replying affidavit to submit that since the Petition was filed, the 1st Respondent had deliberately intensified construction efforts to complete the development before its determination. It was submitted that if construction is allowed to continue to completion, the character of the neighbourhood would be permanently altered, infrastructure would be strained beyond repair, and the Petition would be rendered nugatory. To support this argument, reliance was placed on **Judicial Service Commission v Speaker of the National Assembly & another [2013] KEHC 911 (KLR)**. 8. Counsel submitted that the 1st Respondent would not suffer any prejudice, as any financial loss was self-inflicted, since it proceeded with construction despite being aware of the Petitioner's objections. Conversely, the Petitioner and its members would suffer irreparable prejudice, as violations of constitutional rights cannot be adequately compensated by damages. To support this argument, reliance was placed on **Law Society of Kenya v Attorney General & 3 others; Katiba Institute & 6 others (Interested Parties) [2023] KEELC 20583 (KLR)**. 9. Counsel argued that conservatory orders serve the public interest, asserting that the public is best protected when constitutional safeguards are upheld. To support this point, reference was made to the case of **Save Lamu & 5 others v National Environmental Management Authority (NEMA) & another [2019] KENET 98 (KLR).** 10. Counsel submitted that public interest does not justify completing an unlawful development simply because construction has commenced; rather, it supports lawful and transparent planning processes, meaningful public participation, the protection of environmental rights, and the preservation of the neighbourhood character pending the determination of the Petition. **THE 1ST RESPONDENT'S SUBMISSIONS** 1. The 1st Respondent filed its submissions dated 24th February 2026. 2. On behalf of the 1st Respondent, Counsel submitted that the Petitioner has not met the threshold for the grant of a conservatory order. To support this point, Counsel relied on **Giella v Cassman Brown [1973] EA 358** and **Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR),** where the Court of Appeal held that the three conditions for granting interlocutory relief must be satisfied sequentially and distinctly. 3. Counsel submitted that while the Petitioner has not presented any credible evidence of non-compliance, the 1st Respondent has presented documentary evidence demonstrating full compliance, including public notices, a Change of User approval, a development approval, approval of the architectural plans and drawings, an ESIA Comprehensive Project Report incorporating a stakeholder consultation forum form from the Kitisuru Residents Association dated 20th January 2024, an addendum ESIA report prepared in response to NEMA's comments of 17th April 2024 and a NEMA Licence and Approval. 4. Counsel further submitted that the incomplete and unsigned ESIA consultation forms relied upon by the Petitioner are misleading, as the 1st Respondent had filed the duly completed and stamped forms in its Replying Affidavit. 5. Counsel submitted that the Petitioner failed to demonstrate an injury that cannot be compensated by damages. To support this point, reliance was placed on **Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR).** Counsel submitted that any prejudice claimed by the Petitioner was speculative, whereas the harm to the 1st Respondent was real and demonstrable, with construction having commenced over two years prior, with only roofing works remaining. Counsel argued that halting the construction at this stage would compromise the structural integrity of the nearly completed building. 6. Counsel submitted that the balance of convenience favours the 1st Respondent, who had lawfully undertaken and substantially completed the development based on validly issued approvals and licences, and who had not been shown to be in breach of any statutory or regulatory requirement. To support this point, reliance was placed on **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 [2025] KEELC 128 (KLR),** where the Court declined to grant conservatory orders halting construction, given the substantial financial investments already incurred and the developers' demonstrated statutory compliance. Further reliance was placed on **Bamburi Wananchi Cooperative Savings and Credit Society Limited & 26 others v Attorney General & 45 others [2025] KEELC 5090 (KLR),** where the conservatory orders sought to restrain construction were dismissed for lack of merit. 7. Counsel further submitted that the Petitioner has not demonstrated its ability to compensate the 1st Respondent if the Petition ultimately fails. In light of the foregoing, Counsel argued that any financial loss to the 1st Respondent would be irreversible. Counsel contended that the 2nd and 3rd Respondents have not disputed the validity of the licences and approvals issued. It was further contended that the Petition, was filed more than two years after the commencement of construction and when the development was substantially complete, lacked credible evidence of illegality or procedural impropriety. In conclusion, Counsel urged the Court to dismiss the application with costs. **THE 2ND RESPONDENTS SUBMISSIONS** 1. The 2nd Respondent filed its submissions dated 16th March 2026. 2. On behalf of the 2nd Respondent, Counsel submitted that the Petitioner has not met the threshold for the grant of conservatory orders as outlined in **Giella v Cassman Brown [1973] EA 358.** Further reliance was placed on **Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others** and **Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] KECA 606 (KLR)**, where the Court of Appeal confirmed that the three conditions must be satisfied sequentially and distinctly. 3. Regarding the prima facie case, Counsel submitted that the Petitioner admitted that it was not involved in the primary approvals process. Counsel further submitted that the Petitioner waited for two years before lodging its claim. It was submitted that the Petitioner failed to disclose that Kitisuru Residents Association, its constituent member, actively participated in the public participation process from the outset. 4. Relying on **Mrao v First American Bank of Kenya Limited & 2 others [2003] eKLR,** Counsel submitted that a prima facie case requires more than just an arguable case; it must be supported by evidence of an infringement of a right and a likelihood of success at trial. In the matter at hand, Counsel contended that the Petitioner has not established a prima facie case with a probability of success. 5. Regarding irreparable harm, Counsel submitted that the Petitioner has not demonstrated actual and real loss likely to occur, as opposed to remote or speculative injury. To support this point, reliance was placed on **Nguruman Limited v Jan Bonde Nielsen and Vivo Energy Kenya Limited v Maloba Petrol Station & 3 others [2015] eKLR**. 6. Counsel further submitted that the Petitioner's case, insofar as it is based on public interest grounds, would fail the test of irreparable harm, as any breach of law identified by the Court could be remedied by restoring the situation to its original state. Counsel also submitted that the Petitioner has not approached the Court with clean hands, having been indolent and concealing material facts, including the active participation of its constituent member in the approval process. 7. Regarding the specific approvals granted by the 2nd Respondent, Counsel submitted that the change of user and development approvals were issued in accordance with the procedure outlined in Sections 57 and 58 of the Physical and Land Use Planning Act. Counsel submitted that the approvals were subject to conditions, including that the development maintains the residential character and densities of the area and is not subject to complete redevelopment. It was also submitted that any alleged breach of those conditions is a matter for revocation under Section 57(5)of the Act, not a ground to suspend the approvals by conservatory order. Counsel maintained that due process was followed in all respects. 8. Counsel submitted that the Applicant has not met the threshold for the grant of the orders sought It was submitted that the 1st Respondent, through its financial investment, and the 2nd Respondent, through the public had incurred expenses in the approval process and would suffer harm if the orders sought are granted. Relying on **Films Rover International v Cannon Film Sales Ltd [1986] 3 All ER 772,** Counsel submitted that the Court should opt for the course with the lesser risk of injustice. In conclusion, Counsel urged the Court to dismiss the application with costs. **ANALYSIS AND DETERMINATION** 1. Having considered the application, the respective affidavits, and the rival submissions, the only issue for determination is whether the Petitioner has met the legal threshold for the grant of conservatory orders. 2. Article 23(3) of the Constitution empowers a Court to grant appropriate relief in any proceedings brought under Article 22 when there has been a violation or a threat of violation of a fundamental right or freedom. 3. The law governing the issuance of conservatory orders is well settled. In **Judicial Service Commission v Speaker of the National Assembly & Another (2013) eKLR, c**onservatory orders were defined as follows: ***“Conservatory orders, in my view, are not ordinary civil remedies but are remedies*** *provided* ***for under the Constitution, the supreme law of the land. They are not remedies between one individual against another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders, which may only attach to a particular person.*** 1. In **Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 Others [2014] eKLR,** the Supreme Court underscored the public law nature of conservatory orders and stated that: ***“Conservatory orders bear a more decided public-law connotation; for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory stay orders, therefore, are not, unlike interlocutory injunctions, linked to such private party issues as “the prospects of irreparable harm’ occurring during the pendency of a case; or ‘high probability of success’ in the Applicant’s case for orders of stay. Conservatory orders consequently should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.”*** 1. Similarly, in **Invesco Assurance Co. Ltd v MW (Minor suing through next friend and mother HW) [2016] eKLR**, the Court described a conservatory order as: ***“A conservatory order is a judicial remedy granted by the court by way of an undertaking that no action of any kind is taken to preserve the subject until the motion of the suit is heard. It is an order of status quo for the preservation of the subject matter.”*** 1. The criteria for granting conservatory orders was outlined in **Board of Management of Uhuru Secondary School v. City County Director of Education and 2 Others (2015) eKLR** as follows: ***“a) First, an Applicant must demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he/she is likely to suffer prejudice.*** ***b) The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights.*** ***c) Thirdly, the Court should consider whether, if an interim conservatory orders is not granted, the Petition or its substratum will be rendered nugatory.*** ***d) The final principle for consideration is whether the public interest will be served or prejudiced by the decision to exercise discretion to grant or deny a conservatory order.”*** **WHETHER THE PETITIONER HAS DEMONSTRATED A PRIMA FACIE CASE WITH A LIKELIHOOD OF SUCCESS** The first issue for determination is whether the Petitioner has established a prima facie case warranting the grant of conservatory orders. In **Kevin K Mwiti & Others vs Kenya School of Law & Others (2015) eKLR,** the Court held that: ***“……..A prima facie case, it has been held, is not a case which must succeed at the hearing of the main case. However, it is not a case which is frivolous. In other words, the Petitioner has to show that he or she has a case that discloses arguable constitutional issues.”*** 1. In the matter at hand, the Petitioner contends that the 1st Respondent conducted a sham public participation process, that crucial documents were withheld from the Petitioner and its members despite repeated requests, and that the approvals and licences issued by the 2nd and 3rd Respondents violated the applicable statutory and regulatory framework, thereby violating the constitutional rights of the Petitioner and its members. In this regard, the Petitioner annexed to the supporting affidavit copies of correspondence between the parties, the impugned notices and photographs of the suit property. 2. The 1st Respondent presented public notices, a Change of User approval, a development approval and architectural plan approval. They also present an ESIA Comprehensive Project Report incorporating a stakeholder consultation forum form from the Kitisuru Residents Association dated 20th January 2024, an addendum ESIA report prepared in response to NEMA's comments dated 17th April 2024, and a NEMA Licence and Approval. 3. The 2nd Respondent argued that the change of user and development approvals were issued in accordance with the procedures prescribed under Sections 57 and 58 of the Physical and Land Use Planning Act and were subject to conditions, including that the development maintain the residential character and densities of the area. 4. The gravamen of the Petition is that the public participation process was conducted without adequate disclosure of the details of the proposed development; that the Petitioner's letters of 5th March 2024 and 19th March 2024 received no response; and that the public consultative meeting of 20th March 2024 was held without any documentation being shared. 5. In **Gakuru & others v Governor Kiambu County & 3 others [2014] KEHC 7516 (KLR),** the Court held that public participation must be real and not illusory or treated as a mere formality. The issue of whether the process met that standard raises an arguable issue beyond mere assertion. 6. At this interlocutory stage, this Court finds that the Petitioner has raised constitutional and statutory questions of sufficient weight to constitute an arguable prima facie case with a likelihood of success. **WHETHER THE DENIAL OF CONSERVATORY ORDERS WOULD PREJUDICE THE PETITIONER OR UNDERMINE CONSTITUTIONAL VALUES** 1. The Petitioner claims that since the Petition was filed, the 1st Respondent has intensified construction activities in a deliberate attempt to complete the development before its determination. It was argued that if the construction proceeds to completion, the character of the neighbourhood would be permanently altered, rendering the Petition nugatory. 2. The 1st Respondent presented evidence, supported by the advice of site engineers, indicating that the development is nearing completion with only roofing works remaining, and that any halt at this advanced stage would adversely affect the structural integrity of the building and could necessitate the demolition of the entire structure. 3. The proposed development involves changing the use from residential to commercial, in an area the Petitioner claims is designated for low-density single-dwelling residential use. If that claim is ultimately upheld at the hearing of the Petition, the harm caused by allowing the development to proceed in the meantime would be difficult to rectify. 4. This Court finds that the Petitioner's complaint is based on the right to a clean and healthy environment, access to information, and fair administrative action. The denial of conservatory orders in circumstances where the substantive questions raised by the Petition remain unresolved would result in the permanent alteration of the suit property and the surrounding neighbourhood before those questions are settled. Accordingly, the second condition is satisfied. **WHETHER THE PETITION WILL BE RENDERED NUGATORY IN THE ABSENCE OF CONSERVATORY ORDERS** 1. The 1st Respondent's evidence shows that the development is in its final stages, with only roofing works remaining. This Court finds that if construction is allowed to be completed before the Petition is determined, the main reliefs sought, including orders to suspend approvals and licences and to stop construction, will become an academic exercise. The third condition is met. **WHETHER THE PUBLIC INTEREST FAVOURS THE GRANT OF CONSERVATORY ORDERS** 1. The Petitioner contends that the public interest justifies the granting of conservatory orders. The 2nd Respondent maintains that the approvals were granted following due process, and that the conditions attached to the approvals, including the requirement that the development maintain the residential character and densities of the area, provide adequate safeguards. 2. This Court finds that the public interest favours the issuance of the conservatory orders sought pending the hearing and determination of the petition. The fourth condition is satisfied. 3. The upshot of the foregoing is that the application is merited and is hereby allowed in the following terms. 1. ***A conservatory order is hereby issued restraining the 1st Respondent, its agents, servants and employees from continuing any construction, renovations, or related works on Land Reference Number 17/433, Kitisuru, Westlands, Nairobi, pending the hearing and determination of the Petition.*** 2. ***Each party shall bear its own costs.*** **RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 31ST DAY OF JULY, 2026.** **…………………………………….** **HON. T. MURIGI** **JUDGE** **IN THE PRESENCE OF**: Ayieko Owino holding brief for Kiarie for the Petitioner Lilan holding brief for Zahid for the 1st Respondent Moses Muiruri for the 2nd Respondent Karimu for the 3rd Respondent