https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3230

Okoiti v Ministry of Lands, Public Works, Housing and Urban Development & 30 others (Land Case Petition E052 of 2025) [2026] KEELC 3230 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEELC 3230 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case Petition E052 of 2025 OA Angote, CA Ochieng & CG Mbogo, JJ May 29, 2026 Between Okiya Omtatah Okoiti Petitioner and Ministry of Lands, Public Works, Housing And Urban Development 1st Respondent State Department of Housing and Urban Development 2nd Respondent Director, Slum Upgrading Department 3rd Respondent Affordable Housing Board 4th Respondent Ministry of Environment and Natural Resources 5th Respondent Ministry of Roads and Transportt 6th Respondent Hon Attorney-General 7th Respondent County Government of Nairobi City 8th Respondent National Land Commission 9th Respondent National Environment Management Authority 10th Respondent Raysmagan & Sons Limited 11th Respondent Landmark Holdings Limited 12th Respondent and Langata Reject Ahp Committee 1st Interested Party Langata South and Estate Residents Association (Lasera) 2nd Interested Party Kenya Institute Of Planners 3rd Interested Party Institute of Surveyors of Kenya (Isk) 4th Interested Party Architectural Association Of Kenya (Aak) 5th Interested Party Kenya Private Sector Alliance 6th Interested Party Kenya Alliance of Residents Association (Kara) 7th Interested Party Kenya Airports Authority (Kaa) 8th Interested Party National Construction Authority (Nca 9th Interested Party Water Resources Authority 10th Interested Party Nairobi City Water and Sewerage Company Limited 11th Interested Party Kenya National Highways Authority (Kenha) 12th Interested Party Kenya Urban Roads Authority (Kura) 13th Interested Party Kenya Wildlife Service (Kws) 14th Interested Party Ministry Of Defence 15th Interested Party Ministry of Interior and National Administration 16th Interested Party Kenya Power and Lighting Company 17th Interested Party Kenya Civil Aviation Authority 18th Interested Party Kenya Association of Air Operators 19th Interested Party Judgment A. Background 1.Vide the Petition dated 4th July, 2025, the Petitioner seeks the following reliefs:i.A Declaration that no EIA licence should be issued for the Southlands Affordable Housing Project without following due process, which includes complying with all laws and regulations governing the use of public land in Kenya, and consulting and getting the approval of residents of Estates who will be directly affected by this development, stakeholders and the public.ii.A Declaration that the Respondents’ actions and omissions in approving, facilitating, and proceeding with the impugned development violate the Petitioner’s and other residents’ Constitutional rights under Articles 10, 19, 22, 31, 40, 42, 43, 47, 69, and 70 of the Constitution of Kenya, 2010.iii.A Declaration that the Respondents, by approving and implementing the impugned project without lawful adherence to statutory and environmental safeguards, have violated the Environmental Management and Coordination Act, 1999, by failing to conduct a proper Environmental Impact Assessment (EIA) and obtain an EIA License before commencing construction.iv.A Declaration that the proposed development contravenes the Physical and Land Use Planning Act, 2019, as the Respondents failed to comply with zoning and land-use regulations applicable to Lang’ata, resulting in an unlawful and irregular development process.v.A Declaration that the Respondents have unlawfully converted public land meant for infrastructure into a private development, and an Order directing the restoration of the land to its original public use and purpose.vi.A Declaration that no Environmental Impact Assessment (EIA) licence or approval shall be issued in respect of the Southlands Affordable Housing Project unless and until there is full compliance with the law, including:(i)the conduct of a comprehensive environmental and social impact assessment;(ii)meaningful and effective public participation; and(iii)obtaining the informed approval and consent of all relevant stakeholders, in accordance with Articles 10, 42, and 69 of the Constitution, and the provisions of EMCA.vii.An Order directing the Respondents, jointly and severally, to take immediate steps to restore and rehabilitate the environment by mitigating and remedying the damage already caused by the preparatory works and/or construction activities undertaken thus far in relation to the Southlands Affordable Housing Project, in accordance with the principles of sustainable development and the duty of care under the Environmental Management and Coordination Act (EMCA) and the Constitution.viii.An Order of prohibitory injunction restraining the Respondents, their agents, employees, contractors, developers and/or representatives from commencing, continuing, or undertaking any operations and/or construction activities in relation to the Southlands Affordable Housing Project famously known as the Southlands Affordable Housing Project, pending full compliance with the law, including but not limited to:(a)conducting comprehensive environmental and social impact assessments; and(b)obtaining the express approval of NEMA for the said project.ix.Orders for the issue of a prohibitory injunction restraining the respondents and other parties involved, their agents, employees and/or representatives from in any way continuing with operations and/or construction of the Southlands Affordable Housing Project without following due process under the law, including, first, conducting environmental and social impact assessments of the project and, second, getting the 1st and 2nd Interested Parties express approval for the project.x.An Order of Certiorari quashing the approvals, licenses, and permits, if any, granted for the proposed development by the Respondents in violation of constitutional and statutory provisions.xi.An Order of Prohibition restraining the Respondents, whether by themselves, their agents, employees, or any other person acting on their behalf, from continuing with or undertaking any further excavation, construction or development on the subject land.xii.An Order of Mandamus compelling the 8th Respondent (County Government of Nairobi City) to ensure full compliance with the Physical and Land Use Planning Act, 2019, and revoke any approvals, permits, or authorizations issued contrary to the law.xiii.An Order of permanent injunction restraining the Respondents from undertaking, approving, or facilitating any development on the subject land unless and until full compliance with the Constitution, zoning regulations, environmental protection laws, and public participation requirements is ensured.xiv.An Order that the Officer Commanding Station (OCS), Langata Police Station provides all the necessary support required in execution of the orders granted.xv.An Order that each party shall bear its own costs of this Petition, given the public interest nature of the litigation.xvi.Any other relief that this Honourable Court deems just and fit to grant in the interest of justice. 2.The Petitioner brings this matter before this Court in the public interest, seeking various constitutional reliefs. The Petitioner alleged that the Respondents’ failure to diligently abide by the law collectively amounts to a gross abdication of constitutional and statutory responsibilities, particularly in light of Articles 10, 40, 47, 48, 73, and 232 of the Constitution. 3.It is the Petitioner’s case that the Respondents are undertaking the Southlands Affordable Housing Project in Lang’ata, Nairobi, in blatant violation of the Constitution, environmental laws, and land use regulations. The Petitioner avers that the project involves the construction of 17-floor apartment blocks comprising approximately 15,000 residential units on land forming part of a road and rail reserve, a noise buffer zone, and the wider 120-metre Transafrican Transport Corridor. 4.According to the Petitioner, the project amounts to the unlawful conversion and privatization of public land without compliance with the constitutional and statutory framework governing conversion of public land into private land. They contend that no lawful approval was obtained from the National Land Commission (hereinafter NLC), no Gazette Notice was issued, and no public consultations were undertaken prior to commencement of the project. 5.The Petitioner further avers that the Respondents failed to comply with the mandatory legal process governing conversion of public land into private land. According to the Petitioner, neither the NLC nor the County Government identified the land for conversion, conducted public consultations, published notices in the Kenya Gazette or newspapers of nationwide circulation, or evaluated compliance with Article 62 of the Constitution, Section 12 of the Land Act, county spatial plans, and environmental laws. He insists that the Cabinet Secretary for Lands never approved the conversion through a Gazette Notice and that the land was never lawfully excised from public land for private ownership. 6.The Petitioner contends that the project commenced without compliance with Sections 58 and 59 of the Environmental Management and Coordination Act (hereinafter EMCA), which require an Environmental Impact Assessment (EIA) and the issuance of an EIA licence prior to commencement of projects of such magnitude. He avers that correspondence from NEMA confirmed that the Southlands Affordable Housing Project had not been subjected to the mandatory environmental and social impact assessment process. 7.According to the Petitioner, despite that confirmation, the National Environment Management Authority (NEMA) failed to halt the project and instead merely advised the project proponent to undertake an EIA study while construction was already ongoing. The Petitioner maintains that any EIA process undertaken after commencement of the project is a mere formality incapable of curing the illegality already committed. 8.It is further the Petitioner’s case that the Respondents commenced excavation and construction activities without conducting public participation contrary to Articles 10(2)(a), 69(1)(d), 174(4), 201(a), and 232(1)(d) of the Constitution, Section 3 of EMCA, Sections 55 to 68 and 87 of the Physical and Land Use Planning Act (hereinafter PLUPA), Sections 20 and 21 of the Urban Areas and Cities Act, and Sections 3, 4 and 5 of the Fair Administrative Action Act. 9.The Petitioner claims that residents of Lang’ata including surrounding estates were never informed nor consulted but only discovered the project after noticing surveyors and contractors entering the area. He states that several letters written to various government agencies including their official’s seeking clarification on approvals and compliance went unanswered. 10.The Petitioner reiterates that the ongoing excavation works have already caused environmental degradation and damage to neighboring homes. He avers that those vibrations from the excavations have damaged residential houses adjoining the project site, particularly homes adjacent to the Southern Bypass and Southlands Estate buffer zone. 11.According to the Petitioner, contractors have dumped excavated debris near perimeter walls and residential backyards, thereby affecting visibility, air quality, drainage, and security. He complains of excessive dust pollution, unbearable noise, and degradation of the residents’ peaceful enjoyment of their homes and environment. 12.The Petitioner deposes that the project will impose an unbearable strain on existing infrastructure and social amenities within Lang’ata. He claims that the area already experiences severe water shortages, overstretched sewer infrastructure, and endemic traffic congestion, and that the proposed development will introduce an additional population of approximately 70,000 residents without any demonstrated infrastructural planning. He further states that the project threatens the residents’ rights under Article 43(1)(b) and (d) of the Constitution relating to adequate housing and access to clean and safe water, as read together with Sections 5 and 63 of the Water Act. 13.It is also the Petitioner’s case that the proposed 17-storey buildings will interfere with the privacy and property rights of surrounding residents’ contrary to Articles 31 and 40 of the Constitution. He explains that the high-rise structures will overlook neighboring maisonettes and residential homes, thereby exposing residents to intrusive surveillance, compromising their dignity and privacy. The Petitioner insists that the introduction of high-density affordable housing within an established low-density residential zone will negatively affect property values and economically prejudice homeowners, many of whom are servicing mortgages secured against their properties. 14.The Petitioner additionally contends that the project poses grave environmental and national security risks. He insists that no studies have been undertaken to establish the impact of the development on nearby strategic national installations including Wilson Airport, Nairobi National Park, Lang’ata Barracks, Uhuru Gardens, and Ulinzi Stadium. He explains that the Kenya Civil Aviation Authority itself convened stakeholders within the aviation industry to deliberate on the impact of the project on aviation safety and flight paths. According to the Petitioner, the project threatens environmental sustainability, air traffic safety, and national security interests’ contrary to Articles 42, 69 and 70 of the Constitution. 15.According to the Petitioner, the Respondents have acted in violation of Articles 1, 2, 10, 40(6), 47, 48, 60, 62, 64, 66, 69, 70, 159, 201(d), 227, and 232 of the Constitution, together with Sections 3, 5, 6, 8, 9, 12, 40, 42 to 68, 57, 58, 61 and 87 of the EMCA, PLUPA, the Land Act, the National Land Commission Act, the Fair Administrative Action Act, the Water Act, the Public Finance Management Act, the Leadership and Integrity Act, and the Physical Planning Regulations, 2020. 16.He deposes that the Respondents unlawfully permitted construction on public land, failed to uphold transparency and accountability, disregarded the rule of law, and denied affected residents their constitutional right to a clean and healthy environment and fair administrative action. 1st -7th Respondents 17.In response, the 1st to 7th Respondents through the 1st Respondent’s Principal Secretary, Charles M Hinga swore a Replying Affidavit on the 23rd March, 2026. He deposes that meaningful public participation was undertaken in respect of the Southlands Affordable Housing Project. The process, he explained included household surveys, key informant interviews and public barazas. 18.He states that initial public meetings were convened at Ngei Primary School. However, the sessions encountered disruptions attributed to circulating rumours of displacement which affected attendance and orderly engagement. To ensure inclusivity and effective consultation, the process was subsequently relocated to the respective project sites within Kibra lots 1,2,3,4 and 5 in Mugumo-ini Ward within Langata Constituency. 19.The barazas, he noted, brought together community members, youth leaders, ministry representatives and consultants in open engagements. Participants raised concerns regarding project planning and land use, particularly questions about the extent to which community input would influence decision making and the potential impacts of the project on existing developments. 20.Housing allocation and eligibility emerged as a key area of discussion with stakeholders seeking clarity on prioritization of local residents, affordability parameters and transparent allocation processes. Employment opportunities were also addressed with proposals for prioritization of local youth through established administrative structures including chiefs to enhance community participation in project related economic benefits. Infrastructure and environmental considerations were further highlighted including concerns about traffic management and congestion along Langata Link Road as well as the broader implications of increased development on local services and mobility. 21.According to Mr. Hinga, assurances were provided that no forced displacements would occur and that any allocation of housing units would be conducted transparently through the Boma Yangu Portal which is the established government platform for affordable housing registration and allocation. 22.Further, assurances were given regarding prioritization of local employment opportunities and the integration of appropriate mitigation measures within the ESIA framework to address potential environmental and social impacts. 23.He explains that prior to community consultations, pre-engagement meetings were held with the Langata Deputy County Commissioner and Assistant County Commissioner to ensure administrative coordination and alignment with local governance structures. These engagements culminated in the issuance of an approval letter duly stamped by the Deputy County Commissioner’s office, confirming procedural compliance and authorization to proceed with public participation activities. 24.He states that approximately fifty (50) households were surveyed across areas like Otiende, Gatwekera, Kisumu Ndogo, Laini Saba, Lindi, Soweto East and Mashimoni and contrary to the Petitioner’s assertions regarding the absence of an Environmental Impact Assessment, the Project is compliant with the EMCA. Further, that the 1st Respondent duly submitted the Environmental and Social Impact Assessment report on 21st September 2025 in accordance with statutory requirements. 25.He avers that the report was reviewed by NEMA, which, upon satisfaction that environmental safeguards and mitigation measures had been adequately addressed, issued an Environmental Impact Assessment license in respect of the Project. Further, that the submission of the ESIA report by the State Department for Housing and Urban Development and the subsequent issuance of the license confirm environmental compliance and adherence to the regulatory framework governing sustainable development. 26.He reiterates that the license issued bears License No. NEMA/EIA/PSL/0001425 and Application Reference No. NEMA/ENVIS/SR/00096, authorizing the implementation of the Proposed Southlands Social Housing Project (Kibra Lots 1, 2, 3, 4 & 5) subject to the conditions stipulated therein by NEMA, which regulates environmental compliance and sustainable development in accordance with EMCA. 27.He explains that the said license relates to a project comprising the construction of social and affordable housing units together with associated infrastructure and amenities, located along the Nairobi Southern Bypass Highway within Langata Constituency, Nairobi City County. 28.He argues that the issuance of the said license conclusively confirms that the Project has now received formal environmental approval from the statutory regulator mandated to supervise, license and regulate projects of this nature. Further, that the concerns previously raised regarding the absence of an environmental license have been overtaken by events and no longer subsist as a factual or legal impediment to the continuation of the Project. 29.He reaffirms that following the submission of the Environmental and Social Impact Assessment (ESIA) Project Report on 21st September 2025, the 1st Respondent duly complied with all procedural and substantive requirements necessary for the issuance of an Environmental Impact Assessment License. He confirms that the 1st Respondent promptly initiated the payment process for the requisite license fees through the National Environment Management Authority’s online system, as required. 30.However, the processing of the said payment was materially delayed due to persistent technical challenges within the NEMA online payment system, which was unable to process and confirm the payment despite the same having been initiated and pending from as early as the 21st of September 2025. He reiterates that the delay was therefore wholly administrative and system-related, beyond the control of the 1st Respondent and did not arise from any omission, default or non-compliance on its part. 31.He asserts that subsequent issuance of the Environmental Impact Assessment License on 16th December 2025, merely formalized a process that had been substantively completed by the 1st Respondent several months earlier and confirms continuous compliance. He insists that the continued subsistence of the conservatory orders notwithstanding the issuance of the EIA License serves contrary to the public interest. 32.He contends that unless the Petition is dismissed, the Project will continue to suffer unnecessary delay despite full regulatory clearance, thereby occasioning further loss of public funds, disruption of livelihoods and frustration of the State’s constitutional mandate to provide accessible and adequate housing. 33.Regarding the allegations that the Project is situated on public land designated as a road and rail reserve and noise buffer zone, he insists that the land for the Southlands Affordable Housing Project was lawfully allocated for slum upgrading and affordable housing purposes under the mandate of the State Department for Housing and Urban Development, which is empowered to plan, implement and facilitate affordable housing initiatives in accordance with applicable statutory and planning frameworks. Further, that the allocation of the site for affordable housing purposes was undertaken through lawful governmental processes and does not constitute encroachment on designated transport reserves or buffer zones as alleged. 34.He explains that the Partial Development Plan and Master Plan annexed as part of Exhibit “OOO-1” in the Petitioner’s affidavit expressly designate the site for residential development, thereby confirming its lawful planning status for affordable housing purposes. He further insists that there is no encroachment upon transport reserves or designated buffers. 35.Regarding the Petitioner’s concerns on environmental degradation, water scarcity, sewer overload, privacy infringement, property devaluation, traffic congestion, and security risks, he termed the same unsubstantiated and overstated. 36.He claims that the Project design incorporates sustainable measures, including drainage enhancements, traffic control, and infrastructure upgrades in collaboration with Nairobi City Water and Sewerage Company, Kenya Power and other stakeholders. He reiterates that vibrations and dust from excavations are temporary and managed under standard construction protocols, with no verified damage to adjacent properties. Further, that the Project will enhance housing access for low-income households, create jobs, and improve urban infrastructure, aligning with Articles 43(1)(b) and 60 of the Constitution. 37.With respect to the aviation and defense-related concerns, he insists that consultations were undertaken with Kenya Civil Aviation Authority, as evidenced by the license and correspondence. Further that risk assessments confirmed that the Project complies with aviation safety standards, with building heights and structural parameters adjusted to avoid interference with flight paths serving Wilson Airport. 38.As regards the issues on proximity to military installations, he explains that all relevant consultations were undertaken with the requisite stakeholders and regulatory authorities. Further, that the Kenya Defence Forces, being fully capable of raising objections or concerns where warranted, had not lodged any complaint, objection, or adverse comment regarding the Project. 39.He was emphatic that no evidence had been produced to demonstrate any violation, encroachment or detrimental impact upon either Langata Barracks or the Ulinzi Sports Complex. The absence of such evidence confirms that the Project proceeds in compliance with applicable planning, security and regulatory requirements, with due regard to neighboring installations and public interests. 40.While acknowledging the Petitioner’s locus standi under Articles 22 and 258, he asserts that the Petition lacks merit as it is based on misconceptions and ignores the lawful processes undertaken. Further, that the Project advances public interest by addressing housing shortages in line with national development goals. 41.He argues that prolonged suspension of works heightens safety and security risks on the unoccupied site, including potential trespass, particularly by children, and exposure to hazards arising from existing excavations. Further, that such conditions expose the contractors to continued site liability and may necessitate enhanced insurance coverage due to elevated risk profiles, thereby increasing project costs and eroding public resources without delivering corresponding public benefit. 42.It was his further contention that unless the Petition is dismissed and the subsisting orders lifted, the ongoing restrictions may precipitate contract terminations by contractors and subcontractors. Such terminations may result in litigation and attendant contractual claims, exposing the State Department for Housing and Urban Development to financial liability and loss of public funds. This, he insists, would result in irreparable prejudice to the public interest by undermining the timely and cost-effective implementation of the Project. 43.Mr Hinga argues that should the court find any irregularity or invalidity in the Project’s processes, it should consider the remedial principles governing structural interdicts and declarations of invalidity including proportionality, avoidance of legal vacuums, and protection of public interest. 44.He urges the court to specifically suspend any declaration of unconstitutionality for a period deemed appropriate, to allow relevant authorities to address and if necessary, cure any procedural defects, thereby avoiding disruption to affordable housing initiatives of significant public value contrary to the principles of good governance and constitutional stability. 45.He accedes that the court should therefore make a finding that late compliance is lawful and sufficient, deeming the procedural requirements satisfied notwithstanding the timing of compliance. Further, that any delay in compliance was not attributable to the Respondents but arose from circumstances beyond their control, and ought not to invalidate a project undertaken in the public interest and in compliance with Article 43 and the Affordable Housing Act 2024. 46.He explains that consistent with the principles of accountability and remedial oversight, the Court may require periodic reporting on compliance and remedial measures to ensure transparency and adherence to any conditions imposed. He adds that such reporting would balance the objectives of good governance and oversight while preserving the viability of the Project and its public interest objectives. 47.He clarifies that late compliance, once achieved, should be treated as curing any initial defect where substantive requirements are satisfied. He urged the court to dismiss the Petition. 4th Respondent 48.In response, the 4th Respondent filed Grounds of Opposition premised on the facts to wit:i.The Petition discloses no cause of action against the 4th Respondent.ii.The Petition does not demonstrate how the 4th Respondent has failed to discharge its core mandate of managing the Affordable Housing Fund, as provided for under Sections 8, 17, 26, 27 and 28 of the Affordable Housing Act.iii.The Petitioner has failed to demonstrate the manner in which the 4th Respondent has infringed and/or violated the constitutional and statutory provisions enumerated in the instant Petition. Accordingly, the Petition fails to meet the test set in Anarita Karimi Njeru vs Republic [1979] КЕНC 30 (KLR).iv.The Petition is otherwise frivolous, vexatious and an abuse of the Court process as its sole intention is to frustrate and/or derail the expeditious implementation of the Affordable Housing Project.v.The Petition is misconceived, mischievous and filed in bad faith. 8th Respondent 49.The 8th Respondent responded vide the Replying Affidavit of CS Boniface Waweru, the Acting Director Litigation of the Nairobi City County. He deposes that the Southlands Affordable Housing Project is a national government initiative conceived and executed principally by the 1st to 4th Respondents under the mandate of the Affordable Housing Act, 2024, and implemented through the Affordable Housing Board established under Section 16 of that Act. 50.He explains that the Project falls squarely within the definition of a “strategic national project” under the PLUPA (Classification of Strategic National or Inter-County Projects) Regulations, Legal Notice No. 156 of 2019, read together with the Affordable Housing Act, 2024, specifically under Item 15 thereof in Schedule r.6 and r.7, which classifies national government housing projects as strategic national projects. 51.Further, that development permissions for such projects vest in the Cabinet Secretary for Lands as seen in Section 69(4) of the PLUPA not the County Executive Committee Member, under Section 57(4) thereof. 52.He asserts that the County Government of Nairobi City is not the lead implementing agency for the Project and cannot be primarily liable for decisions made and approvals granted by, and within the mandate of, the national government organs. Further, that the primary responsibility for compliance with planning, environmental and land laws in respect of this Project rests with the 1st to 4th Respondents. 53.CS Waweru denies that the 8th Respondent failed to protect public land. He insists that the allegations in the Petition are directed primarily at the 1st to 4th Respondents and the 9th Respondent, who are the entities vested with management of, and authority over public land under Articles 62 and 67 of the Constitution and Section 8 of the Land Act. 54.He states that under Article 67(2)(p) of the Constitution, the NLC is mandated "to manage public land on behalf of the national and county governments. Further, that Section 5 of the National Land Commission Act vests in the Commission the power to manage, monitor, and to oversight responsibilities over land use planning throughout the country. 55.He clarifies that the County Government's role in public land management is supervisory and contingent upon the NLC's primary mandate. He added that to that extent, the land on which the Project is sited has been lawfully designated for residential development under the applicable Partial Development Plan and the Master Plan, as averred by the 1st to 7th Respondents. He states that the 8th Respondent cannot be said to have failed in its duty, as the County Government relies on and defers to such designations issued under lawful authority. 56.He avers that the 8th Respondent did not issue development permission for the Project in the manner ordinarily required under Section 57(1) & (4) of PLUPA because the Project qualifies as a strategic national project under the applicable Regulations, in respect of which the Cabinet Secretary has power to issue development permission under Section 69 (4) of PLUPA. 57.He argues that to the extent public participation was required in respect of any change of land use or zoning within Nairobi City County, the conduct of public participation in respect of a national government strategic housing project is primarily the mandate of the 1st to 4th Respondents including the Affordable Housing Board. 58.He explains that the Affordable Housing Regulations, 2025 at Section 25(1) & (2), place an explicit obligation on the Affordable Housing Board to conduct public participation before developing an affordable housing scheme. He insists that the primary obligation to conduct public participation in respect of this Project therefore rested with the 4th Respondent (Affordable Housing Board), and not the 8th Respondent. 59.Without prejudice to the foregoing, he confirms that officials of the 8th Respondent, remain committed to promoting public participation in land use planning as required under Articles 10 and 174 of the Constitution. 60.On environmental compliance, he insists that environmental regulation and the issuance of Environmental Impact Assessment Licences are exclusively within the mandate of the 10th Respondent under Sections 58 and 59 of EMCA. Further, that the 8th Respondent has no statutory power to conduct EIA studies or issue EIA licences. 61.He confirms that as averred by the 1st to 7th Respondents, an Environmental and Social Impact Assessment report was duly submitted to NEMA on 21st September, 2025 and a valid EIA License (No. NEMA/EIA/PSL/0001425) was issued on 16th December, 2025. Further, that the County Government admits that to this extent the requirements of the law have been complied with. He disputes that the County Government of Nairobi City was the body responsible for conducting or approving the EIA. 62.On the allegation of violations of Articles 40 and 62 of the Constitution, he denies that the 8th Respondent facilitated the unlawful alienation of public land. He explains that the conversion of public land, if any such conversion is required, must follow the process set out in Section 12 of the Land Act, which primarily involves the National Land Commission and the Cabinet Secretary for Lands, not the County Government. 63.He insists that the allegation that the project site is a "road and rail reserve" or "noise buffer zone" is a matter for determination by this court upon proper evidence. 64.As regards the allegations of violations of Articles 47 of the Constitution on fair administrative action, he denies that the 8th Respondent undertook any unfair administrative action against the Petitioner or the residents of Langata. He insists that the allegations of unfair administrative action in the Petition should be directed principally at the 1st to 4th and 10th Respondents, not the County Government. 65.He denies that the 8th Respondent issued any development permission, approval, or authorization for the Project. Further, that the Petitioner’s claim that his right to information as guaranteed under the Constitution was violated. 66.He contends that the 8th Respondent did not violate any provisions of the Constitution of Kenya, 2010 or any statute cited in the Petition and sought for the dismissal of the Petition. 10th Respondent 67.Vide its response, the 10th Respondent, concedes to its description noting that it is the principal instrument of the Government in the implementation of environmental policies and in the coordination of environmental matters in Kenya. 68.It denies the allegations that it failed, refused, or neglected to protect the environment in relation to the Southlands Affordable Housing Project, and averred that it has at all material times acted diligently, lawfully and within the confines of its statutory mandate. 69.It states that prior to the commencement of the impugned development, the project proponent duly submitted the requisite Environmental Impact Assessment documentation in compliance with Part VI of EMCA and the Environmental Impact Assessment and Audit Regulations, 2003. 70.It contends that upon a comprehensive technical review of the Project Report and the Environmental Impact Assessment Study Report, and being satisfied that the statutory and regulatory requirements had been met, it proceeded to issue an Environmental Impact Assessment Licence authorising the construction of the Affordable Housing Project, subject to express conditions intended to mitigate environmental impacts as well as safeguard the public interest. 71.It argues that the said Environmental Impact Assessment License, which constitutes the legal foundation for the environmental approval of the project, has not been expressly challenged, impugned, or subjected to any specific prayer for quashing or nullification within the body of the Petition, and therefore remains valid and binding in law. 72.It reiterates that nonetheless, in the event that any party was aggrieved by the decision to issue the said license, Section 129 of EMCA provides a clear and specific appellate mechanism to the National Environment Tribunal, and no evidence has been placed before this Court to demonstrate that the Petitioners invoked or exhausted the said statutory remedy prior to instituting these proceedings. 73.It acknowledges that certain preliminary works had commenced at the project site at the time when the Environmental Impact Assessment process was ongoing. It confirms that an application for approval had already been duly lodged and was under active technical review in accordance with the EMCA and the applicable Regulations. 74.According to the 10th Respondent, upon conclusion of the statutory review process, and upon being satisfied that the Environmental Impact Assessment Study Report adequately identified potential environmental impacts together with appropriate mitigation and monitoring measures, it proceeded to issue the Environmental Impact Assessment License subject to specific and enforceable conditions. 75.The 10th Respondent asserts that the issuance of the License regularised the environmental compliance framework governing the project going forward and placed the development under the Authority’s continuing supervision, inspection and enforcement jurisdiction. 76.It was argues that at all material times, the 10th Respondent exercised its mandate within the confines of the law and in furtherance of sustainable environmental management. 77.In answer to the allegations of violation of Articles 10, 40, 42 and 47 of the Constitution, the 10th Respondent denies infringing or threatening to infringe any constitutional right, and averred that the issuance of an Environmental Impact Assessment License constituted an administrative action undertaken strictly within statutory parameters and in furtherance of the constitutional obligation under Article 69 to ensure sustainable development and environmental protection. 78.It insists that on matters pertaining to land tenure, classification of public land, road and rail reserves, aviation safety, and national security, fall within the mandate of other statutory and constitutional bodies, and that the role of the 10th Respondent is confined to environmental regulation as provided EMCA. 79.It argues that the Petition does not plead with precision any specific act or omission attributable to the 10th Respondent, which amounts to a violation of the Constitution, and therefore fails to meet the established threshold for constitutional litigation as developed by the superior courts. 80.It reiterates that the declaratory, prerogative or restorative orders sought in the Petition are unavailable against it, in the absence of proof of illegality, irrationality, procedural impropriety or breach of statutory duty on its part. 1st and 2nd Interested Parties 81.The 1st and 2nd Interested Parties responded vide the affidavit of Fred Muriungi, a resident of Southlands Estate, Langata and the Chairman of the 1st and 2nd Interested Parties, who was duly authorised to swear the same affidavit on behalf of the residents of Southlands Estate and the larger planned estates within Langata to wit, Southlands Estate, Civil Servants Estate, Rubia Estate, Uhuru Gardens I and II, Masai Estate, Onyonka Estate, Jambo Estate, Akiba Estate, Ngei Phase I and II Estates, Moi Estate, SunValley Estate I and II, Camp David, Royal Park, KMA, Park Estate I and II, amongst others. 82.He explains that in 1980, Southlands Housing Development Limited, the developer of Southlands Estate, submitted its subdivision plans of land parcel number 737 measuring 2.686 ha to the relevant authorities for approval. Further, that the then authorities approved the construction of Southlands Estate, subject to the developer leaving open spaces and a buffer zone for the residents as common area, which areas were to be enjoyed by all residents. 83.He avers that the developer was mandated to surrender the title of the common areas to the Government of Kenya to be held in trust for the benefit of the residents. He states that in 1981, the developer commenced construction of the estate and a Certificate of Lease registered as Nairobi/Block 72/737 was issued on 6th March, 1981 to the developer. Further, that the construction of the estate was completed in 1984. 84.He contends that on 2nd April 1985, the developer surrendered the original lease together with the estate’s open spaces and buffer zone to the Commissioner of Lands, who was to hold the same in trust for the residents of Southlands Estate as public utility land. It was his explanation that according to the residents, the cost of those common areas had been incorporated into the purchase price of their homes, making them beneficiaries of the trust. Further, consequently, he maintained that any dealings affecting the open spaces or buffer zones required the written consent of the homeowners and that the land could not lawfully be alienated without such consent. 85.He reaffirms that the 20-metre buffer zone is a separately registered public utility area serving Southlands Estate and forms the main access corridor to the residents’ houses. Further, that according to the residents, the buffer zone accommodates essential infrastructure including the estate’s sewerage system, drainage network, storm water channels, and water lines, and also serves as an emergency access route in the event of disasters such as fire. He further states that the area has, for nearly forty (40) years, been fenced and used by residents for security, recreation, landscaping, and gardening. 86.He contends that the proposed Affordable Housing Project would unlawfully interfere with the buffer zone and substantially prejudice the estate residents by obstructing access to their homes, thereby undermining the planned layout of the estate, and interfering with the environmental and aesthetic character that informed their purchase of the properties. He maintains that the only developments originally contemplated behind their houses were a road, a railway line, and that the area also functions as a fire escape and noise buffer zone for the estate. 87.He insists that the proposed road and railway line were originally intended to be situated 90 metres away from the 20-metre buffer zone, but that the railway project was later abandoned and replaced by the Southern Bypass constructed in front of the residents’ houses. 88.He further points out that the status of the buffer zone had previously been the subject of litigation in Waithira & 3 others vs Kenya National Highways Authority (Environment & Land Case 911 of 2013) [2025] KEELC 1337 (KLR) (12 March 2025) (Judgment), where the court found that the plaintiffs had encroached onto the buffer zone. 89.He sought to rely on a Nairobi City Council letter dated 30th August 2002, which allegedly recommended that the area comprising the 20-metre buffer zone and the 90-metre railway/road reserve was unsuitable for development and instead proposed that the space be retained and extended to the residents as green spaces and children’s playing grounds. 90.He claims that the Government now intends to construct the Southlands Affordable Housing Project on land comprising the estate’s 20-metre buffer zone together with the adjoining 90-metre railway line and road reserve, which he described as public utility land that has been enjoyed by residents of Southlands, Civil Servants, Uhuru Gardens I, Uhuru Gardens II and Maasai Estates for over forty (40) years. He maintains that the proposed development amounts to an encroachment onto the buffer zone, which he describes as a narrow strip unsuitable for such construction. 91.He further alleges that there had previously been attempts by individuals acting fraudulently and in collusion with government officials to illegally acquire the buffer zone and adjoining reserve land, but that the issue had already been determined by Justice Samson Okong’o (as he then was), in a judgment delivered on 6th October 2021, where the court reportedly held that the disputed stretch of land was held in trust for the residents of Southlands Estate as public open space. 92.In addition, he maintains that these unscrupulous persons had constructed multi-storied flats/apartments on the stretch where there is a sewerage line and a water line. He claims that the government demolished these buildings on grounds that they were built on top of the sewerage and water line serving the residents of the Langata Estates. Further, that these demolitions are well documented in all mainstream media. 93.He states that it is comical that the same government that demolished the multi-storied private properties worth millions illegally constructed on the 20-metre buffer zone and the 90-metre stretch reserved for the railway line/road reserve now turns around and purports to construct similar flats on the contested land in the name of Affordable Housing. He asserts that in furtherance of the demolitions then, the government did degazette the parcels that had illegally been grabbed on the area vide Gazette Notice dated 17th July, 2017. 94.He is categorical that there was no public participation, stakeholder consultation or meaningful engagement with the residents of Southlands Estate, Civil Servants Estate, Rubia Estate, Uhuru Gardens I and II, Masai Estate, Onyonka Estate, Jambo Estate, Akiba Estate, Ngei Phase I and II Estates, Moi Estate, SunValley Estate I and II, Camp David, Royal Park, KMA, Park Estate I and II. 95.He maintains that the project began in March 2025, when the residents woke up to find excavators clearing the vegetation and flowers to their shock and dismay. He explains that he approached the strangers who were excavating to enquire why they were clearing the residents’ buffer zone but his queries were met with resistance and silence with no explanation at all. 96.He deposes that he subsequently contacted the Ward Administrator, as he had previously done during an earlier attempted land grabbing which had allegedly been halted by the Government, but the Ward Administrator informed him that she had informally learnt that the Government intended to construct affordable housing units on the disputed stretch of land and promised to provide further details once available. He confirms that a few days later, he received the already approved Southlands Affordable Housing Project Master Plan from the local administrator without any accompanying explanation. 97.According to the deponent, scrutiny of the Master Plan revealed that the Respondents had approved the Southlands Affordable Housing Project comprising Lots 1 to 5 with approximately 60 residential blocks and 15,960 residential units on land which, he asserts, had previously been considered unsuitable for such development from a planning perspective. 98.He further avers that the surrounding Lang’ata estates, including Southlands Estate, Civil Servants Estate, Rubia Estate, Uhuru Gardens I and II, Maasai Estate, Onyonka Estate, Jambo Estate, Akiba Estate, Ngei Phases I and II, Moi Estate, Sun Valley Estate I and II, Camp David, Royal Park, KMA and Park Estates, collectively comprised about 5,300 residential units with an estimated population of 30,000 persons already sharing strained infrastructure and social amenities. He cites water shortages, reliance on water bowsers, traffic congestion along Kitengela Road and frequent power blackouts as evidence of existing infrastructural pressure. 99.He further contends that the proposed project intended to accommodate an additional population of approximately 60,000 persons, which in his view far exceeded the carrying capacity of the existing infrastructure. He reaffirms that the Respondents were always aware that the area designated as Lots 1 to 5 constituted public utility land and a residents’ buffer zone serving estates developed over forty years ago along the bypass and link road. 100.The deponent reiterates that to date, the residents have never been approached by the relevant authorities for any engagement regarding the project. Instead, he complains that excavation works were undertaken at night using heavy machinery which caused vibrations in their homes, excessive noise and bright floodlights directed towards their bedrooms, thereby affecting their dignity, comfort and standard of living. According to the deponent, residents, including school-going children, were unable to sleep properly or comfortably undertake home studies until conservatory orders were issued by the court. He explains that the excavation had encroached onto the residents’ buffer zone and overlooked their bedrooms and living rooms. 101.He claims that the developers erected a construction advertisement board containing scanty information and lacking references to approvals from NEMA and the National Construction Authority. Further, that the board described the project as a slum upgrading or social housing project rather than an affordable housing project despite Southlands Estate never having been a slum, and maintained that the two categories of projects carried different social and environmental implications. 102.He notes that the board described the site as a “proposed site for construction,” which residents understood to mean that the project was still undergoing planning and approval processes and remained open to objections on legal, environmental and community grounds. Despite this, excavation and foundation works allegedly continued unabated. 103.He further claims that that residents petitioned their elected leaders through a letter dated 8th March, 2025 protesting the project and later held peaceful demonstrations at local administrative and assembly offices, which demonstrations were covered by mainstream media stations. Further, despite those protests, the excavation and site clearance works continued, prompting the residents to seek legal redress. He notes that Senator Okiya Omtatah had also filed proceedings before the National Environment Tribunal and obtained conservatory orders, which were later set aside without participation of the residents or the Petitioner, thereby allowing excavation works to continue. 104.He clarifies that the designated buffer zone had originally served as a recreational area, children’s play area and noise buffer, and that the project would result in loss of those amenities. He further contends that the proposed high-rise development would overshadow and fundamentally alter the low-density residential character of the surrounding estates which had existed for over forty years and had informed residents’ decisions to invest in the area. 105.According to him, the construction works had also blocked fire escape routes with iron sheets, caused loss of green cover, interfered with water, sewerage and stormwater drainage infrastructure, created large water-filled craters attracting mosquitoes and vermin, and generated vibrations leading to cracks in houses and compromising structural integrity. He alleges that the ongoing construction had exposed residents, particularly vulnerable groups such as children, the elderly and the sick, to adverse health effects arising from persistent dust, air and noise pollution. 106.He was emphatic that the children were the most affected as they were unable to study and complete school assignments due to the noise and dust as heavy excavation is done at night using heavy machinery that causes vibrations. Further, that floodlights are used by the contractor at night facing the master and children’s bedroom windows. 107.He states that senior citizens and retirees have suffered emotional distress as a direct result of the invasion of their front yards, especially because they have no resources to seek alternative accommodation. He said that the ones who were relying on rent to feed themselves after retirement have now received vacation notices from their tenants. 108.The deponent avers that there was no demonstrated demand or need for affordable housing within Lang’ata, which he described as already overcrowded and strained in terms of infrastructure and social amenities. He asserts that the project would effectively create a slum environment within established residential estates and undermine residents who had invested in low-density neighbourhoods such as Southlands Estate, Civil Servants Estate, Rubia Estate, Uhuru Gardens I and II, Maasai Estate, Onyonka Estate, Jambo Estate, Akiba Estate, Ngei Phases I and II, Moi Estate, Sun Valley Estate I and II, Camp David, Royal Park, KMA and Park Estates. 109.He further states that the project would encroach on land reserved for potential future expansion of the Southern Bypass and argued that what Lang’ata youth required were jobs and business opportunities rather than additional housing units. 110.He also avers that the project was likely to significantly reduce property values within the area, citing media reports projecting a decline of between 30% and 50% due to the introduction of high-density multi-storey housing within a predominantly low-density upscale residential area. 111.According to the deponent, the project would also worsen traffic congestion, given the proposed 15,960 residential units compared to the existing 5,300 units within the area, and exacerbate the already severe water shortages experienced by residents who only receive water once a week. 112.Additionally, he states that the proposed 17-floor towers would obstruct sunlight and airflow to neighbouring maisonettes, interfere with residents’ privacy by overlooking bedrooms and living rooms, and negatively affect senior citizens and vulnerable persons who depended on adequate sunlight and ventilation. 113.He maintains that the sustainability and low-density character of Lang’ata estates built over more than forty years was being eroded by what he termed an illegal project. He further raises concerns that the project site lay within the flight path of Wilson Airport and near Nairobi National Park and the Army Ulinzi Barracks, thereby raising safety and regulatory concerns. 114.He reaffirms that the Respondents could not claim prejudice or financial loss since the project was being undertaken using public funds without adherence to due process, including proper needs assessment and public participation involving the residents most affected by the project. According to the deponent, meaningful stakeholder consultation and public participation should have been undertaken before commencement of excavation and foundation works, particularly with residents of the affected estates. 115.He argues that although the Respondents had analysed the likely negative impacts of the project and acknowledged that its success depended on proper planning, infrastructure investment and community engagement, they nonetheless proceeded with the project without adequately involving the residents most affected. 116.He further states that the stakeholder engagement meetings conducted were non-inclusive and undertaken after groundbreaking and approval of the master plan. He deposes that the affected residents sought cessation of the allegedly illegal activities, compensation and surcharge against the proponents of the project. 11th Interested Party 117.The 11th Interested Party, through Ms Sylvia Khayeli Muhanji, a Civil Engineering Officer, swore a Replying Affidavit on the 16th October, 2025. She deposes that the 11th Interested Party, Nairobi City Water and Sewerage Company Limited (hereinafter “NCWSC”), is a limited liability company wholly owned by the County Government of Nairobi City, statutorily mandated to provide water and sewerage services within Nairobi City County under the Water Act, 2016 and other relevant legal and regulatory frameworks. 118.She explains that the role and statutory duty of the 11th Interested Party within the urban infrastructure framework is to ensure the provision of clean, adequate, and sustainable water supply and sewerage services, in strict compliance with the Constitution of Kenya, particularly Article 43(1)(d) thereof on the right to water and sanitation; the Water Act, 2016 and the Water Act (Services) Regulations,2024; the Nairobi Water Services Provision Agreement (SPA); the Guidelines issued by the Water Services Regulatory Board (WASREB); and the National and Urban Water Development Planning Norms and Standards. 119.She states that the 11th Interested Party is not, and was never, a principal party to the conception, initiation, planning, and/or implementation of the Southlands Affordable Housing Project and as such it has been wrongly joined and/or sued in the instant proceedings. 120.She deposes that under Rules 2 and 5(d)(i) and (ii) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, an Interested Party is a person or entity with an identifiable stake or legal interest in the proceedings, and that the power to join or strike out parties is a judicial function exercisable only by the court. Consequently, it was contended that the Petitioner improperly joined the 11th Interested Party without leave of the court. She hence sought for its name struck out from the proceedings and/or for the Petition to be dismissed as against it. 121.Without prejudice to the foregoing, it argues that, while the houses are available for all Kenyans who have met the criteria set for applying for allocation of affordable houses, the members of the 1st and 2nd Interested parties represent a small group of people in one locality as compared to the national outlook and demographic representing the multitude of people from all over Kenya and therefore the interest of the multiple number of Kenyans across the country should take precedence. 18th Interested Party 122.The 18th Interested Party, responded vide the Replying Affidavit of David Ondieki, Manager Air Navigation Services, MET and Aerodromes Regulation at the Kenya Civil Aviation Authority, sworn on the 12th September, 2025. He deposes that the 18th Interested Party is a state corporation established under Section 4 of the Civil Aviation Act, Cap 394 whose functions are to provide aviation regulatory oversight, air navigation services and aviation training in Kenya. 123.He explains that in undertaking regulatory oversight, the 18th Interested Party is mandated under the Civil Aviation Act and Regulations, specifically the Civil Aviation (Aerodromes) Regulations, 2013 to control developments within and in the vicinity of aerodromes in order to permit the intended aeroplane operations to be conducted safely and prevent aerodromes from becoming unusable by growth of obstacles. 124.Further, accordingly, persons intending to undertake constructions and installations near aerodromes are required to obtain clearances from the 18th Interested Party and to ensure the constructions/installations comply with the specifications and conditions prescribed by the 18th Interested Party. 125.He explains that in defining the specifications, the 18th Interested Party is guided by the Civil Aviation Act, the Civil Aviation (Aerodromes) Regulations, 2013 and Standards and Recommended Practices issued by the International Civil Aviation Organization, the United Nations Specialized Agency on Aviation pursuant to the Convention on International Civil Aviation Convention that Kenya is a signatory. 126.It was the 18th Interested Party’s case that the 2nd Respondent vide the letter dated 18th February 2025, communicated its intention to develop housing units in Kibra Southland Site and sought guidance on height limitations as well as on any other concerns that would affect airspace clearance and flight path safety of Wilson Airport. 127.He avers that the 2nd Respondent further submitted a formal height application through the online portal maintained by the 18th Interested Party, and upon consideration of the said application, the 18th Interested Party granted an initial height approval of 15 metres, on 13th March 2025. 128.He states that the 2nd Respondent thereafter requested for a review of the approved height restriction. Further, that in order to determine the viability of the proposed new height, the 18th Interested Party commissioned an aeronautical study, whose objectives were to assess the impact of the proposed housing project on aviation safety at Wilson Airport, evaluate the feasibility of the proposed height structures and to consider stakeholder concerns. 129.He claims that the study adopted a consultative approach and considered both written and oral views and perspectives of aviation players and air operators, key government institutions involved in aviation and operation of aerodromes, security sectors, meteorological sector and the concerned project proponents. He confirms that the outcome of the study was that a maximum height structure of 29 metres was allowable together with mitigation measures without compromising aviation safety. 130.Further, vide the letter dated 15th August 2025, the 18th Respondent communicated to the 2nd Respondent its decision pursuant to the outcome of the aeronautical study. He further confirms that the decision granted a height approval of 29 metres above ground level together with mitigation measures. 131.It is his contention that the 18th Interested Party has now commenced the process of monitoring the implementation of the mitigation measures in line with the approval to ensure aviation safety is safeguarded. He disputes that contrary to the Petitioner’s averments, adequate stakeholder consultations have been made in as far as the implication of the housing project on aviation and the operations of Wilson Airport is concerned and, the appropriate mitigation measures put in place, communicated to the 2nd Respondent as well as the stakeholders. 132.He insists that the 18th Interested Party is committed to ensuring aviation safety and will continue monitoring the implementation of the mitigations recommended to ensure that the proposed housing project is done within the relevant aviation safety standards. Petitioner’s further affidavit 133.The Petitioner filed a further affidavit in response to the Respondents’ and Interested Parties’ affidavits. 134.Addressing the 1st Respondent, the Petitioner notes that the Replying Affidavit sworn by Charles M. Hinga failed to demonstrate compliance with the legal and constitutional requirements governing the project. The Petitioner reiterates that no feasibility studies had been undertaken prior to commitment of public funds to the Lang’ata Affordable Housing Project and maintained that such studies were mandatory to ensure proper planning, value for money, risk assessment, transparency, technical viability and sustainability of the project. 135.According to the Petitioner, the Respondents had failed to place before the court any feasibility study, while the ESIA reports relied upon could not substitute proper feasibility assessments. 136.The Petitioner further faults the 1st Respondent for allegedly failing to demonstrate compliance with public procurement requirements relating to the engagement of REDSSED Company Limited as ESIA consultant. He contends that no tender documents, evaluation records, contracts or procurement approvals had been produced, thereby rendering the procurement process unlawful and tainting the resultant ESIA reports. 137.The Petitioner additionally maintains that the project was not subjected to meaningful and legally compliant public participation across the policy design, budgeting and procurement phases. He argues that no evidence had been produced demonstrating public participation during conceptualization, feasibility assessment, budget formulation, budget approval or procurement stages, and that the purported public participation exercises undertaken later during implementation could not cure the alleged defects in the earlier stages. 138.The Petitioner further challenges the authenticity and validity of the public participation reports and ESIA documents annexed by the 1st Respondent. He asserted that the reports contained internal inconsistencies, placeholder dates marked “XXX,” identical photographs, identical stakeholder analyses and substantially similar minutes across different project sites, thereby suggesting fabrication rather than genuine public participation. 139.The Petitioner also notes that the ESIA reports were unsigned and vaguely dated contrary to the Environmental (Impact Assessment and Audit) Regulations, and consequently maintained that the license issued on 16th December, 2025 was void ab initio for having been founded on defective and allegedly fabricated documentation. 140.He deposes that the 10th Respondent's response is a belated, contrived, and legally untenable attempt to defend an indefensible position being the issuance of an invalid Environmental Impact Assessment License No. NEMA/EIA/PSL/0001425 on 16th December ,2025 (post-commencement of works and during subsisting conservatory orders of 11th December, 2025), based on fatally defective, unsigned, and misrepresented reports. 141.The Petitioner avers that on 24th April, 2025, he filed Tribunal Case No. 6 of 2025 challenging the ongoing construction of the Southlands Affordable Housing Project on the basis that the project was proceeding without an Environmental Impact Assessment License, which was struck out on 14th May, 2025. He stated that the ruling confirmed that the project was ongoing without environmental approval and further established that the Tribunal lacked jurisdiction to address the constitutional violations alleged, thereby leaving him without an effective remedy before the Tribunal thus compelling him to seek redress before this court. 142.The Petitioner emphasizes that the Tribunal’s ruling preceded both the purported submission of the ESIA Reports on 21st September, 2025 and the issuance of the NEMA license on 16th December, 2025. He therefore maintained that as at 14th May, 2025, there was no NEMA decision capable of appeal, while construction was ongoing without environmental approval, and the Tribunal had correctly found that it lacked jurisdiction to intervene. 143.The Petitioner insists that NEMA failed in its constitutional and statutory mandate by allowing commencement of the project without a prior ESIA license, issuing a license based on allegedly defective and unsigned documents, ignoring earlier admissions that no ESIA had been undertaken, and issuing the license despite subsisting conservatory orders. According to the Petitioner, such conduct amounted to an abdication of NEMA’s duty to protect the environment and uphold constitutional rights. 144.The Petitioner further asserts that Section 58 of EMCA is mandatory and does not permit post-commencement “regularization” of projects undertaken without an EIA license. He argues that the EIA process is intended as a pre-commencement safeguard and that any license issued after construction has begun is null and incapable of curing the initial illegality. The Petitioner maintains that construction had commenced by March 2025, whereas the ESIA reports were only purportedly submitted in September 2025 and the license issued in December 2025. 145.Additionally, the Petitioner challenges the validity of the ESIA reports, contending that they were unsigned, undated and contained inconsistent and allegedly fabricated public participation records, including future-dated public barazas and placeholder entries marked “XXX.” 146.According to the Petitioner, no evidence had been produced demonstrating compliance with the statutory requirements governing public participation under EMCA and the Environmental Impact Assessment Regulations, thereby rendering the alleged public participation process a sham. 147.Further, he argues that the doctrine of exhaustion and Section 129 of EMCA did not bar the present proceedings since, as previously asserted, there was no appealable NEMA decision in existence at the time the construction allegedly commenced or when the Petition and Tribunal proceedings were instituted. 148.The Petitioner maintains that the dispute raised broader constitutional and environmental questions, including unlawful commencement of construction, defective ESIA processes, lack of public participation, procurement irregularities and violation of environmental rights, matters said to fall within the jurisdiction of this court rather than the Tribunal. 149.He reiterates that the ESIA license and reports were fundamentally defective and incapable of curing the alleged illegality surrounding the project. He further insists that the project commenced before issuance of any license, that the ESIA reports were unsigned, undated and founded on fabricated public participation records, and that the purported “regularization” by NEMA had no basis in law. He faults NEMA for allegedly failing to coordinate with other relevant agencies despite the project’s proximity to sensitive installations and environmental resources, including Wilson Airport, Nairobi National Park and nearby rivers. 150.He also asserts that the procurement of the ESIA consultant was unlawful for want of compliance with Article 227 of the Constitution and the Public Procurement and Asset Disposal Act, while the ESIA reports themselves were said to be substantively inadequate for failing to address issues such as resettlement, environmental impact, infrastructure strain and affordability concerns. He further maintains that the impugned license was issued in defiance of subsisting conservatory orders and that NEMA had failed to place before the court material documents demonstrating any lawful or comprehensive technical review of the project. 151.It is his contention that no feasibility studies were conducted prior to the commencement of the Lang’ata Affordable Housing Project, despite such studies being necessary under the public finance and governance framework to ensure proper planning, value for money, risk assessment, transparency, technical viability and sustainable use of public resources. He argues that feasibility studies are essential in determining whether a project is practical, economically viable and capable of successful implementation, and that failure to undertake them exposed the project to risks of inefficiency, wastage of public funds and poor service delivery. 152.It is his assertion that the project was not subjected to meaningful and comprehensive public participation across the various stages of project development. According to him, public participation ought to have been undertaken during the policy design, budgeting and procurement phases, including during conceptualization, feasibility assessment, environmental evaluation and budget approval processes. He contends that no evidence had been produced demonstrating such participation or compliance with procurement requirements under Article 227 of the Constitution and the Public Procurement and Asset Disposal Act. 153.In response to the Replying Affidavit sworn by David Ondieki on behalf of the 18th Interested Party, the Petitioner challenges the adequacy of the aviation safety approvals and consultations allegedly undertaken by the Kenya Civil Aviation Authority (KCAA).While acknowledging KCAA’s statutory mandate, the Petitioner contended that the affidavit narrowly focused on height approvals while ignoring broader and cumulative aviation safety risks associated with high-density developments around Wilson Airport, including land-use encroachment, infrastructure inadequacies, congestion, emergency response limitations and increased disaster risk. In support of those assertions, the Petitioner relied on two peer-reviewed studies concerning Wilson Airport and aviation safety. 154.The Petitioner further asserts that the studies demonstrated that land-use changes and high-rise developments around Wilson Airport posed significant threats to aviation safety, particularly along flight paths and approach routes. He contends that Wilson Airport had suffered substantial land loss over the years and continued to face severe infrastructural deficiencies, including inadequate airfield capacity, navigational aids, emergency response facilities, firefighting infrastructure and congestion management systems. 155.According to the Petitioner, the proposed Southlands Affordable Housing Project, comprising approximately 15,960 units and accommodating between 60,000 and 80,000 residents, would significantly exacerbate those risks by increasing population density, waste generation, bird-strike risks and pressure on already overstretched airport infrastructure. 156.The Petitioner additionally faults the 18th Interested Party for allegedly failing to produce the aeronautical study said to have informed the impugned approvals, together with supporting material relating to the methodology, consultations, mitigation measures and cumulative risk assessments. He contends that no meaningful stakeholder engagement had been demonstrated with affected residents, environmental experts, aviation stakeholders or relevant public agencies. 157.He consequently urges the court to apply the precautionary principle on the basis that the project posed serious and potentially irreversible environmental and aviation safety risks which had not been adequately assessed or mitigated. B. Submissions The Petitioner’s submissions 158.Vide submissions dated 31st March 2026, the Petitioner submitted that contrary to the 10th Respondent’s objection, he had pleaded the constitutional violations against it with sufficient precision to the threshold in Anarita Karimi Njeru vs Republic [1979] KLR 154, being that the 10th Respondent unlawfully issued an EIA licence despite existing court orders, licensed a project that had commenced without an Environmental and Social Impact Assessment (ESIA), and failed to ensure meaningful public participation. 159.On the issue of exhaustion of remedies under Section 129 of EMCA, he argued that the doctrine does not require a party to pursue a remedy that is manifestly inadequate or that cannot provide the relief sought. He pointed out that he had filed Tribunal Case No. 6 of 2025 before the National Environment Tribunal challenging the ongoing construction at the project , but the Tribunal struck out the matter for want of jurisdiction, leaving this Court as the only available forum. 160.The Petitioner further submitted that the project was illegal ab initio because preliminary works commenced before the issuance of an EIA licence contrary to Section 58 of EMCA. He argued that the EIA process is supposed to operate as a preventive planning tool intended to identify risks and integrate mitigation measures before project approval and construction. Further, it cannot be regularized retrospectively through subsequent licensing. 161.Additionally, he submitted that conducting feasibility studies before committing public funds is mandatory under the principles of governance, leadership, public finance, and public service and the Public Finance Management Act, 2012. 162.It was also the Petitioner’s submission that the Environmental and Social Impact Assessment (ESIA) Reports for Kibra Lots 1-5 are invalid since they are not compliant with statutory requirements, including Regulation 18(2) of the Environmental (Impact Assessment and Audit) Regulations, 2003, which requires the ESIA reports to be signed by the proponent and environmental impact assessment experts involved in its preparation. He relied on the case of Republic v NEMA ex parte Greenbelt Movement [2014] eKLR, where the Court held that compliance with regulatory requirements, including the signing of reports, is mandatory. 163.In addition, he submitted that there was no compliance with the publication requirements under Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003, which requires Publication of notice in the Kenya Gazette, in at least two newspapers of nationwide circulation, Radio announcements and at least three public meetings with affected parties with a notice of meetings at least one week in advance. 164.He challenged the procurement of REDSSED Company Limited as the ESIA consultant, arguing that its engagement violated Article 227 of the Constitution and the Public Procurement and Asset Disposal Act, 2015. He maintained that no evidence had been tabled to show that the consultancy was procured through an open and competitive tender process as required by law. 165.He also contended that the Respondents violated Article 10 of the Constitution and Section 59 of EMCA by failing to conduct meaningful public participation and by fabricating records to create the illusion of compliance. He insisted that meaningful public participation must cover the full six-phase development cycle: Policy Design, Budget Formulation, Budget Approval, Budget Execution, Audit, and Parliamentary Oversight. 166.He pointed out that the five separate "Public Participation Reports” annexed by the Respondents for Kibra Lots 1-5 encompasses Identical Photographs which capture the same people and venue yet they allegedly document five separate barazas held at different locations. Further, that the minutes annexed to each report are substantially identical and that the dates of these meetings are indicated as "XXX" a placeholder indicating that the date was not filled in at the time of printing. 167.The Petitioner also submitted that the project site forms part of the Transafrican Transport Corridor Road and Rail Reserve as per his Exhibit “000-1” and therefore constitutes public land under Articles 62 and 66 of the Constitution and that its conversion for the impugned project was unlawful for want of compliance with the Constitution and the National Land Act. 168.He submitted that while the demolition of structures on government land may be lawful in principle, the Respondents' failure to meaningfully engage affected parties constitutes a violation of their rights to dignity and fair administrative action under Articles 28 and 47 of the Constitution. 169.On aviation safety at Wilson Airport, he relied on two peer-reviewed academic studies, conducted on Wilson Airport by (Kanyi, Kamau & Mireri, 2016), annexed as Exhibit “000-3” to argue that the project posed serious safety risks. It was his submission that although the Respondents claimed to have obtained approvals and conducted risk assessments with KCAA, no aeronautical study had been produced before the Court. He argued that the alleged approvals were internally inconsistent regarding permissible building heights, approving 9-10 storeys) while permitting 17-storey towers (=50–60 m) in the same flight path zone. 170.He urged the Court to invoke the precautionary principle under EMCA and make a finding that the Project poses an unacceptable risk to aviation safety at Wilson Airport. 171.With regard to the EIA Licence No. NEMA/EIA/PSL/0001425 issued on 16th December 2025, he submitted that it is null and void for having been issued in defiance of this Court's conservatory orders of 11th December 2025. Further, that it cannot cure the initial illegality of commencing construction without a licence, which action violated Article 42 of the Constitution and undermines the Respondents’ claim to advance Article 43 rights. 172.He also contended that while the Respondents urge the court to issue structural relief instead of halting the project, such interdicts are appropriate only where a public authority has acted in good faith and where the violations are capable of being cured but this is a case of fundamental, deliberate, and pervasive violations of the Constitution and statutory law including fabrication of public participation records which he urged the court to direct the Directorate of Criminal Investigations to investigate. The 1st-7th Respondents’ submissions 173.Vide submissions dated 19th March 2026, the 1st to 7th Respondents submitted that they undertook a multi-layered and exclusive public participation process that meets both the qualitative and quantitative threshold established in British Tobacco Kenya PLC vs Cabinet Secretary For Health & 2 others [2019] eKLR and in Mui Coal Basin Local Community & 15 others vs Permanent Secretary Ministry of Energy [2015] eKLR. 174.Further, they argued that the Petitioner did not demonstrate any deliberate exclusion of stakeholders/any procedural defect that would vitiate the public participation process. 175.On the contention that the project proceeded without an EIA, they submitted that having duly submitted an ESIA report on 21st September 2025 in compliance with EMCA, the issue is overtaken by events and NEMA had issued an EIA license on 16th December 2025 confirming that all environmental safeguards and mitigation measures were satisfactory. They explained that delay in issuance of the license was administrative, arising from technical challenges with NEMA’s payment system. 176.On the allegation that the project is developed on public land, they submitted that the land on which the project sits was lawfully allocated for slum upgrading and affordable housing purposes.Further, that it is designated as such in the Partial Development Plan and Master Plan and there is no evidence of deviation from approved planning frameworks. 177.They also submitted that the petition lacks precision, coherence and evidential foundation and does not disclose any violation /threatened violation of constitutional rights that meets the standard established in Anarita Karimi Njeru vs Republic [1979] 1 KLR 154 (supra) and reaffirmed in Mumo Matemu vs Trusted Society for rights alliance & 5 others [2013] eKLR; Communications Commission of Kenya & 5 Others vs Royal Media Services Ltd & 5 others [2014]eKLR and in Omondi & another vs Attorney General & 2 others [2025]KEHC 9956(KLR), that a constitutional petition must demonstrate a coherent linkage between alleged violators and the reliefs sought. 178.Further, they stated that, if the orders sought are issued, they would have the effect of halting a public housing project undertaken pursuant to the State’s obligations under Article 43(1)(b) of the Constitution and in doing so, the court would interfere with a policy and resource allocation decision lawfully made by the relevant state organ, contrary to Article 20(5)(c) of the Constitution, which provides a constitutional restraint on judicial intervention in matters of resource allocation, and in effect reflects on the doctrine of separation of powers. 179.They further submitted that continued suspension of the project has occasioned substantial financial loss to the public, undermining prudent financial management. Further, that it exposes the project to deterioration while simultaneously increasing the risk of contractual disputes, claims and possible termination of contracts, including the disruption of the livelihood of workers. 180.They argued that in the event the court finds any procedural irregularity in the implementation of the project, the appropriate remedy lies not in outright invalidation/continued suspension but in the application of structural and proportionate remedies. To this end, they relied on the Supreme Court case of Cabinet Secretary for the National Treasury and Planning & 4 others vs Okoiti & 52 others; Bhatia (Amicus Curiae) (Petition E031, E032 & E033 of 2024 (Consolidated)) [2024] KESC 63 (KLR) (29 October 2024) (Judgment) where the Supreme court held that courts in granting constitutional remedies must be guided by the principles of proportionality, public interest and the need to avoid legal vacuum/disruption of governance. 181.They urged the court to suspend any declaration of invalidity for a reasonable period to allow the relevant authorities to regularize any procedural shortcomings and find that any procedural lapses have since been cured through subsequent compliance and where necessary, issue supervisory structural orders requiring periodic reporting to ensure continued compliance while preserving the viability of the project. The 4th Respondent’s submissions 182.Vide the submissions dated 24th March, 2026, the 4th Respondent aligned itself with the submissions of the 7th Respondent and submitted that the Petitioner failed to demonstrate the manner in which it violated the Constitution and statutory provisions enumerated in the Petition as none of the allegations touch on its core mandate which is under Section 16 of the Affordable Housing Act; to oversee the development of the affordable housing, institutional housing and associated social and physical infrastructure by managing the affordable housing fund. 183.It further submitted that the subject project aligns with the Government of Kenya’s Affordable Housing plan and the vision 2030, wherein the social pillar prioritizes the provision of decent housing to address housing deficit thus its implementation is for the general public interest and halting it, would be a violation to Kenyans’ right to adequate housing under Article 43 (1)(b) of the Constitution. 184.It also submitted that Section 44 of the Affordable Housing Act allows for engagement of private contractors in the implementation of Affordable housing projects thus the project consultants were duly hired. The 8th Respondent’s submissions 185.Vide its submissions dated 1st April 2026, the 8th Respondent acknowledged that housing is a shared function between the national and county governments as per Part 2 of the Fourth Schedule to the Constitution of Kenya. However, it submitted that the Affordable Housing Programme is within the former’s domain, being a national policy priority anchored under the Affordable Housing Act, 2024, a position it pointed out was affirmed in Okoiti & 6 Others vs Cabinet Secretary for the National Treasury and Planning [2023] KEHC 25872 (KLR). To this end, it argued that it cannot be held primarily liable for decisions made within the exclusive mandate of the national government organs and the 4th Respondent. 186.In submitting that the Petitioner did not plead with precision the specific constitutional rights it allegedly violated, the 8th Respondent adopted and relied on the 1st to 7th Respondents submissions on the issue and reiterated that the Petitioner only made sweeping allegations against it , “that it failed to protect public land entrusted to its care under the law from encroachment by the impugned Southlands Affordable Housing Project.” It insisted that there is no clear nexus between the alleged violation, the constitutional provision invoked, and the relief sought. 187.The 8th Respondent also submitted that the management of public land is vested in the 9th Respondent, pursuant to Article 67(2)(a) of the Constitution and Section 5(a) of the National Land Commission Act and where such land is alleged to have been unlawfully converted to private land, the proper remedy under Section 12 of the Land Act, 2012 and Section 5(f) of the National Land Commission Act is to compel the 9th Respondent to exercise investigative and corrective mandate, and not to direct remedial action against it. 188.With regard to its role in the development control and planning compliance, it submitted that while Section 56(1) of PLUPA gives it power to control land use and development within its jurisdiction, Section 69 (4) of the said Act creates an exception for projects of strategic national importance, vesting development permission authority in the Cabinet Secretary and that in the instant case, the subject project falls within this exception. 189.On the allegation that it violated Article 10 of the Constitution which calls for public participation, the 8th Respondent submitted that Regulations 25(1) & (2) of the Affordable Housing Regulations, 2025 (Legal Notice No. 114 of 2025), enacted under the Affordable Housing Act, 2024, imposes the obligation to conduct public participation in respect of affordable housing schemes to the Affordable Housing Board. 190.On the allegation that it failed to respond to inquiries from the Petitioner regarding approvals and compliance thus it breached Article 47 of the Constitution, the 8th Respondent reiterated that it has not received any specific inquiry for information from the Petitioner, that it failed to respond to. Further, that it has not made any administrative decision against the Petitioner, that would bring it within the scope of Section 4(3) of The Fair Administrative Action Act which requires that written reasons be given for administrative decisions affecting a person's rights. 191.It urged the Court to weigh the broad public interest in the provision of affordable housing to Nairobi's residents, noting that it has a constitutional obligation under Article 43(1)(b) of the Constitution, to facilitate the progressive realization of the right to accessible and adequate housing for its residents. It further urged the court to consider that Nairobi City County has a massive housing deficit owing to population surge which as per the County Integrated Development Plan 2023-2027 is projected to reach approximately 5 million by 2027, with housing demand far outstripping supply. 192.Citing the case of Cabinet Secretary for the National Treasury and Planning & 4 others vs Okoiti & 52 others; Bhatia (Amicus Curiae) (Petition E031, E032 & E033 of 2024 (Consolidated)) [2024] KESC 63 (KLR) (29 October 2024) (Judgment) in which the Supreme Court emphasized, that courts must be guided by principles of proportionality, public interest, and the need to avoid disruption of governance when granting constitutional remedies, it submitted that if the court finds any procedural infirmity in the implementation of the Project, the appropriate remedy is not to halt it but rather to make a decision that is proportionate and forward-looking, directing compliance rather than punishing retroactively. The 10th Respondent’s submissions 193.Vide submissions dated 16th January 2026, the 10th Respondent stated that the project proponent submitted the requisite Environmental Impact Assessment Project Report and Study Report in compliance with Part VI of EMCA and the Environmental Impact Assessment and Audit Regulations, 2003 and being satisfied that all statutory requirements had been met, it issued an Environmental Impact Assessment Licence subject to express conditions aimed at safeguarding environmental integrity including public interest. 194.It argued that its decision was grounded in law, informed by expert analysis, and guided by the constitutional imperative of sustainable development and that the Petitioner has failed to demonstrate any illegality, irrationality, or procedural impropriety in the said decision-making process thus its decision stands unimpeachable. 195.It also submitted that Section 129 of the EMCA provides a clear appellate mechanism to the National Environment Tribunal for any person aggrieved by the issuance of an Environmental Impact Assessment License, a statutory mechanism that the Petitioner did not invoke yet courts have firmly settled that where a statute provides a clear procedure for redress, that procedure must be strictly adhered to. 196.The 10th Respondent also submitted that the petitioner failed to identify any specific violation against it in the petition ,thus it falls below the threshold established in the Anarita Karimi Njeru vs Republic case(supra). It further submitted that the Petitioner did not demonstrate any infringement of the right to a clean and healthy environment and that issues relating to land tenure, planning approvals, aviation safety, infrastructure, and national security fall within the mandates of other entities, and it cannot be held liable for matters beyond its statutory mandate. The 1st and 2nd Interested Parties’ submissions 197.Vide submissions dated 23rd March 2026, the 1st and 2nd Interested parties submitted that the buffer zones and open spaces surrendered to the Commissioner of Lands formed part of the consideration paid by residents for their homes and was intended for common use as public amenities. They argued that under Article 62 of the Constitution such land constitutes public land and cannot lawfully be alienated for private development without due process. Relying on the case of Waithira & 3 others vs Kenya National Highways Authority [2025] KEELC 1337,where the court affirmed that buffer zones are held in trust and cannot be encroached upon, they maintained that the Respondents’ attempt to convert the buffer zone into private housing units violated the constitution and zoning regulations under PLUPA. 198.They also cited the decisions of Dorcas Atieno Rajoru & 145 others vs Mjahid Sub-chairman Harambee Maweni Committee SHG & 2 others (2016) eKLR, Kipsirgoi Investments Ltd vs Kenya Anticorruption Commission [2011] KECA 326 (KLR) and Republic vs Commissioner of Lands & 4 others ex parte Associated Steel Mill (2014) eKLR, to submit that public land must only be used for the purpose for which it was acquired. 199.They submitted that the project was commenced without the mandatory Environmental and Social Impact Assessment contemplated under Section 58 of EMCA , and in disregard to residents’ rights to a clean and healthy environment under Articles 42 and 69 of the Constitution. According to them, the project unlawfully introduced high-density housing within a low-density residential zone thereby interfering with essential amenities, and violated their right to property under Article 40 of the Constitution as the project caused a depreciation of their property values by an estimated 30–50%. 200.They also argued that the project was unconstitutional for lack of meaningful public participation as required under Articles 10 and 174 of the Constitution. Relying in the cases of Robert N. Gakuru & Others vs Governor Kiambu County & 3 others [2014] eKLR and Mui Coal Basin Local Community & 15 Others vs Permanent Secretary Ministry of Energy and 17 Others [2015] eKLR, they submitted that public participation must be inclusive, rather than a mere procedural formality. 201.Additionally, they claimed that the project infringed on the residents constitutional rights to dignity, by interfering with their privacy as the project contemplates towering 17-floor blocks overlooking their bedrooms. Further, that the Respondents’ arbitrary decisions without consultation infringed on their right to fair administrative action and are in contempt of Articles 73 ,232 and 201 of the Constitution which requires prudent use of public funds. Consequently, they urged the court to find that the project was void ab initio. The 11th Interested Party’s submissions 202.Vide their submissions dated 19th March 2026, the 11th Interested Party submitted that the Petitioner failed to establish any cause of action against it, given that its role as a water service provider in a development project is post-approval of infrastructure planning. 203.It explained that the same entails that after a project approval, a developer applies for connection, and pursuant to its mandate under the Water Act, and its license from the Water Services Regulatory Board (WASREB), it conducts a feasibility study to determine the capacity of the existing network and the necessary upgrades required. 204.It also argued that the right to water under Article 43(1)(d) of the Constitution is a progressive right, and that the Project presents an opportunity for it to strategically expand and modernize the water and sewerage infrastructure in Langa’ta. While it acknowledged infrastructure challenges in the area, such as low water pressure, it submitted that they are as a result of historical under-investment and that the instant project provides the impetus for the government to prioritize and fund the necessary upgrades, thereby creating a "win-win" outcome for the entire community. 205.On whether the Petitioner met the threshold for the grant of injunctive and prohibitory orders, it submitted that the Petitioner failed to meet the principles for the grant of an interlocutory injunction as established in Giella vs Cassman Brown & Co. Ltd [1973] EA 358 and that these orders, if granted, would cause irreparable harm to the public interest. The 12th Interested Party’s submissions 206.Vide its submissions dated 19th March 2026,the 12th Interested Party relied on the cases of Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 others [2013]KECA 445 KLR, Kenya Youth Parliament & 2 others vs Attorney General & another Petition No.101 of 2011 eKLR, to urge this court to apply the rational basis test established in the said decisions and allow the project to continue in public interest since from a proportionate standpoint, the benefit of allowing the project to continue outweighs the risks the petitioner alleges. 207.It also argued that the project not only fulfils the Government’s Constitutional obligation under Article 42(1)(b) of the Constitution but it also embodies the principles of economic and social equity envisaged in Article 21 (2) of the Constitution as it addresses the inadequate housing issues, spurs economic growth through job creation and infrastructure development. C. Analysis And Determination 208.Having considered the Petition, the respective affidavits, Grounds of Opposition, Response to Petition and rival submissions, the following are the issues for determination:i.Whether the Petition is barred by the doctrine of exhaustion?ii.Whether the constitutional threshold for a constitutional petition has been metiii.Whether the Southlands Affordable Housing Project constitutes a public purpose development?iv.Whether the impugned development unlawfully interferes with or alienates land reserved for public use?v.Whether the Respondents adhered to the Constitutional principles on public participation during the conception and implementation of the project and if, the EIA Licence No. NEMA/EIA/PSL/0001425 issued on 16th December 2025 is valid?vi.Whether the Petitioner and the 1st and 2nd Interested Parties have established the alleged constitutional violations?vii.What are the appropriate reliefs? I. Whether the Petition is barred by the doctrine of exhaustion? 209.The 10th Respondent contended that the Petition offends the doctrine of exhaustion for failure to invoke the dispute resolution mechanisms established under EMCA. Its position is that any grievance relating to the issuance of an Environmental Impact Assessment (EIA) licence ought first to have been pursued before the National Environment Tribunal under Section 129 of EMCA before this Court could properly be approached. 210.In response, the Petitioner maintained that the doctrine of exhaustion is inapplicable in the circumstances of this case. He argued that at the time construction commenced, there was no EIA licence or decision in existence capable of being appealed against under Section 129 of EMCA. 211.According to the Petitioner, he had in fact moved the National Environment Tribunal vide Tribunal Case No. 6 of 2025 seeking to challenge the ongoing construction works, but the Tribunal struck out the matter for want of jurisdiction on the basis that there was no decision by NEMA or the Director General capable of founding an appeal under Section 129 of EMCA. It was therefore argued that the statutory mechanism was unavailable and incapable of providing an effective remedy. 212.The doctrine of exhaustion requires a party to first utilize and exhaust an alternative dispute resolution or statutory mechanisms established by legislation before invoking the jurisdiction of the courts. The rationale for the doctrine was explained by the Court of Appeal in Muthinja & another v Henry & 1756 others (Civil Appeal 10 of 2015) [2015] KECA 304 (KLR) (30 October 2015) (Judgment) where it observed that:“It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 213.Similarly, in William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others: Muslims for Human Rights & 2 Others (Interested parties) [2020] eKLR, a five-judge bench held as follows:“The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts…” 214.The Court went on to outline the exceptions to the rule as follows:“As observed above, the first principle is that the High Court(read ELC) may, in exceptional circumstances consider and determine that the exhaustion requirement would not serve the values enshrined in the Constitution or law and allow the suit to proceed before it. It is also essential for the Court to consider the suitability of the appeal mechanism available in the context of the particular case and determine whether it is suitable to determine the issues raised. The second principle is that the jurisdiction of the Courts to consider valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interests the party wishes to advance in a suit must not be ousted. The rationale behind this precept is that statutory provisions ousting the Court’s jurisdiction must be construed restrictively. This was extensively elaborated by Mativo J in Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018] eKLR. In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion…” 215.Section 129 of EMCA provides for appeals to the National Environment Tribunal by any person aggrieved by, inter alia, the grant or refusal of a licence, the imposition of conditions, revocation or variation of licences, environmental restoration orders, or decisions made by the Director General, the Authority, or its committees and agents. 216.In the instant suit, the material before the Court shows that the Petitioner, before approaching this Court attempted to invoke the jurisdiction of the National Environment Tribunal through Tribunal Case No. 6 of 2025. However, the Tribunal struck out the matter after finding that there was no decision or EIA licence in existence capable of triggering its appellate jurisdiction under Section 129 of EMCA. 217.Indeed, the Court is alive to the fact that the EIA licence relied on by the Respondents was only issued during the pendency of these proceedings on 16th December, 2025. In those circumstances, the allegation that the Petitioner failed to exhaust the statutory mechanisms under EMCA is unfounded. 218.Further, the Court notes that the present Petition, as framed, transcends a mere challenge to the issuance of an Environmental Impact Assessment licence. The Petition raises broader constitutional, environmental, planning and public law grievances relating to the alleged unlawful conversion of public utility land, the alleged commencement of construction works without prior environmental approval, the alleged absence of meaningful public participation, and the alleged constitutional violations. 219.The Petitioner further seeks declaratory reliefs, orders of certiorari, prohibition and mandamus, together with injunctive and restorative orders, including restoration of the environment and public land to its alleged original use. 220.Such grievances cannot be wholly or adequately addressed within the narrow appellate mandate conferred upon the National Environment Tribunal under Section 129 of EMCA. 221.Consequently, and in light of the facts of this case, the Court is satisfied that the Petition falls within the recognized exceptions to the exhaustion doctrine as articulated in William Odhiambo Ramogi & 3 Others vs Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) (supra). 222.Accordingly, the plea that the Petition is incompetent for failure to exhaust the statutory mechanisms under EMCA is without merit and is hereby rejected. II. Whether the constitutional threshold for a constitutional Petition has been met? 223.Vide their respective responses and submissions, the Respondents contended that the Petition fails to meet the constitutional threshold of precision established in Anarita Karimi Njeru vs Republic [1979] KECA and subsequently reaffirmed in Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR. 224.The 1st to 7th Respondents in particular submitted that the Petition lacks precision, coherence and evidential foundation and fails to establish a proper nexus between the alleged constitutional violations, the respective Respondents and the reliefs sought. The 4th Respondent similarly argued that none of the allegations pleaded touch on its statutory mandate under Section 16 of the Affordable Housing Act, while the 8th and 10th Respondents maintained that the allegations against them were generalized, sweeping and incapable of sustaining constitutional reliefs. 225.The Petitioner and the 1st and 2nd Interested Parties dispute that position. They maintained that the Petition clearly identifies the impugned project, the specific constitutional and statutory provisions allegedly violated, the factual basis of the dispute and the manner in which each Respondent is said to have participated in or facilitated the alleged violations. 226.It is now trite that a Petition must be pleaded with sufficient clarity to enable both the court and the opposing parties understand the nature of the complaint, the constitutional provisions invoked, and the manner of their alleged violation. Speaking to this, the court in Anarita Karimi Njeru vs Republic(supra), stated that:“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.” 227.Similarly, the Supreme Court in Communications Commission of Kenya & 5 others vs Royal Media Services Ltd & 5 others (Petition 14, 14A, 14B & 14C of 2014 (Consolidated)) [2014] KESC 53 (KLR) (29 September 2014) (Judgment) observed that:“Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru v Republic (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement.” 228.Applying the foregoing principles, this Court must be careful not to conflate the question of precision with that of evidentiary sufficiency or ultimate proof. The inquiry at this stage is not whether the Petitioner has proved the alleged constitutional violations, but whether the Petition discloses, with reasonable clarity, the complaint before the Court, the constitutional provisions invoked, the impugned conduct complained of, and the manner in which the alleged violations are said to have commenced. 229.In the present matter, the Petitioner has identified the specific project complained of, namely the Southlands Affordable Housing Project situated within Lang’ata, Nairobi. He has identified the particular decisions, actions and omissions said to be unlawful, including the alleged commencement of excavation and construction works prior to issuance of an Environmental Impact Assessment Licence, unlawful conversion and use of public utility land, failure to undertake meaningful public participation, non-compliance with planning and zoning requirements, environmental degradation and infrastructural strain, and the alleged failure by various public authorities to discharge their statutory and constitutional mandates. 230.The Petition further specifically invokes various constitutional provisions allegedly violated, including Articles 10, 19, 22, 31, 40, 42, 43, 47, 69 and 70 of the Constitution, together with the alleged breaches of EMCA, PLUPA, the Land Act, the Fair Administrative Action Act, the Water Act and other statutory frameworks governing environmental management, land use planning and public administration. 231.The Petitioner has also linked those alleged violations to identifiable Respondents and Interested Parties, including the alleged role of the 1st to 7th Respondents in implementation of the project, the role of the 8th Respondent in planning and land use governance, and the role of the 10th Respondent in the issuance of the impugned EIA License. 232.The factual substratum underpinning the Petition is similarly detailed. The Petition sets out the alleged historical status of the disputed land as public utility land and buffer zone, the chronology of the project’s implementation, the alleged commencement of excavation before the requisite processes mandated by EMCA, the alleged lack of public participation involving residents of the affected estates, and the alleged environmental, infrastructural, privacy and aviation-related impacts of the project. 233.Indeed, the extensive responses filed by the Respondents themselves, demonstrate that they fully understood the nature of the case mounted against them and were able to respond comprehensively thereto. That, in itself, strongly militates against the contention that the Petition is vague or incapable of reasonable response. 234.In the premises, this Court is satisfied that the Petition meets the requisite threshold of specificity and precision required in constitutional litigation. Whether the Petitioner ultimately proves the alleged constitutional and statutory violations is a separate question to be determined on the merits upon evaluation of the evidence placed before Court. III. Whether the Southlands Affordable Housing Project constitutes a public purpose development? 235.The Petitioner stated that the parcel of land upon which the Southlands Affordable Housing Project sits constitutes public land lawfully reserved for public utility purposes, including a transport corridor. He contended that the land is at risk of unlawful alienation through an alleged fraudulent scheme in which the national government uses public money to fund private developers to construct housing units without adhering to the lawful procedure for converting public land into private use. 236.He further alleged a collusive arrangement where after erecting houses, private developers irregularly and unlawfully privatize public land by selling the units to private home owners, thereby defrauding taxpayers, and depleting Kenya’s very limited reserve of public land. 237.The Petitioner invites this Court to determine whether the land upon which the impugned Project is being undertaken constitutes public land and, if so, whether the Respondents have unlawfully converted such land into private use. 238.On their part, the 1st and 2nd Interested Parties contended that the area designated for the Southlands Affordable Housing constitutes public utility land and that it is a buffer zone serving estates developed along the bypass and link road. 239.They outlined a detailed history of the land, explaining that in 1980, Southlands Housing Development Limited, the developer of Southlands Estate, submitted its subdivision plans of land parcel number 737 measuring 2.686ha for approval which was approved by the then local authority subject to the developer leaving open spaces and a buffer zone for the residents as common areas. 240.They claimed that the developer subsequently surrendered its title of the common areas to the Government of Kenya to be held in trust for the benefit of the residents and in 1981, it commenced construction of the estate and a Certificate of Lease registered as Nairobi/Block 72/737 was issued to it on 6th March, 1981.They argue that since the cost of the common areas had been incorporated into the purchase price of their homes, the common area could not lawfully be alienated without their consent. 241.In opposition, the 1st to 7th Respondents insisted that the land in contention was lawfully allocated for slum upgrading and affordable housing purposes under the mandate of the State Department for Housing and Urban Development, which is empowered to plan, implement and facilitate affordable housing initiatives, through lawful governmental processes and that it does not constitute encroachment on designated transport reserves or buffer zones as alleged. They insist that the Partial Development Plan and Master Plan contained in the Petitioner’s Exhibit “OOO-1” expressly designates the site for residential development. 242.On its part, the 8th Respondent denied facilitating unlawful alienation of public land and avers that conversion of land, if any, involves the 9th Respondent. 243.Affordable housing stands as a cornerstone in the pursuit of securing economic and social rights guaranteed under the Constitution. Economic and social rights are intended to secure human dignity, social inclusion and equitable access to the basic necessities essential for a dignified life. 244.The Court takes judicial notice of the fact that the Affordable Housing Programme (AHP), introduced under the “Big Four Agenda” and linked to Kenya Vision 2030, was conceived as a national public programme intended to address housing shortages and improve access to decent housing for low-income Kenyans. The social pillar of Vision 2030 specifically identifies development of quality and affordable housing as a national priority. 245.The constitutional foundation for affordable housing is found in Article 43(1)(b) of the Constitution of Kenya which provides that every person has the right:“(b)to accessible and adequate housing, and to reasonable standards of sanitation.” 246.To give effect to that constitutional guarantee, Parliament enacted the Affordable Housing Act. Section 3 of the Act expressly provides that its objectives are to give effect to the right to accessible and adequate housing and reasonable standards of sanitation; to impose a levy to facilitate the provision of affordable and institutional housing; and to create a legal framework for the implementation of affordable housing programmes and projects. 247.The Act further provides that its implementation shall be guided by the national values and principles of governance under Article 10(2)(b) of the Constitution, the principles of public finance under Article 201, and the values and principles of public service under Article 232 of the Constitution. 248.According to the Act, “affordable housing” is housing that is adequate and costs not more than thirty percent of a person’s monthly income to rent or acquire, while an “affordable housing scheme” includes not only housing units but also associated social amenities, infrastructure and land development necessary for social welfare. 249.Further, the Affordable Housing Fund established under Section 8 of the Act is a public fund administered through statutory structures and financed through the Affordable Housing Levy, parliamentary appropriations, grants and public finance mechanisms. 250.The purpose of the Affordable Housing Fund under Section 10 is expressly stated to include provision of funds for the design, development and maintenance of affordable housing, institutional housing and associated social and physical infrastructure. 251.Importantly, the Act repeatedly frames affordable housing as a matter of public welfare and social infrastructure rather than purely private enterprise. Section 17 establishes the Affordable Housing Board “to oversee the development of affordable housing, institutional housing and associated social and physical infrastructure in Kenya.” 252.Section 46 further requires the Board to ensure community support, local labour participation and integration of social objectives in implementation. Section 47 additionally prioritizes squatters and settlement residents where projects are implemented on occupied land. 253.Similarly, Sections 53 and 54 provide that transfer and registration of ownership remain subject to approval and oversight by the Affordable Housing Board, and the Registrar is expressly prohibited from registering transfers without the Board’s written consent. 254.The Affordable Housing Regulations, 2025 further operationalize that framework. Part VI, Regulation 18 of the Affordable Housing Regulations, 2025, governing transfer of ownership of an affordable housing unit provides that where the owner of an affordable housing unit intends to sell the unit or any interest therein, the owner must first apply for the consent of the Board in writing, specifying the reasons for the intended sale. 255.Pursuant to the aforesaid Regulation, the Board is then required to determine whether the owner has been in possession of the unit for at least five years after the completion of the payment obligations for the affordable housing unit; and whether the proposed price falls within the prevailing market price range for similar affordable housing units as determined by a registered valuer. The Regulations further provide that even where consent is granted, the unit may only be sold to a person who satisfies the eligibility criteria prescribed for the respective category of affordable housing unit. 256.Those provisions are significant. They demonstrate that affordable housing units are not intended to operate as entirely unrestricted commodities in the open land market under the ordinary incidents of absolute private ownership contemplated under general land law. Rather, the ownership model is statutorily regulated in order to preserve the social and public character of the programme. 257.Under the Land Act and the Land Registration Act, ownership ordinarily carries broad incidents of proprietorship, including the right to freely transfer, alienate, charge or otherwise deal with land, subject only to general statutory limitations. By contrast, the Affordable Housing Act and the Affordable Housing Regulations, 2025 create a qualified and controlled tenure framework where allocation is eligibility-based; acquisition is tied to social and income categories; transfers are restricted and subject to Board approval; the Board retains continuing supervisory authority; and the units are protected from speculative resale and market distortion. 258.The restrictions under Sections 53 and 54 of the Affordable Housing Act therefore reinforces the conclusion that affordable housing is fundamentally a public welfare and social policy instrument rather than a purely commercial housing enterprise. The objective is not merely to facilitate unrestricted private accumulation of property, but to ensure long-term accessibility, affordability and retention of housing stock for the target social groups contemplated under Article 43 of the Constitution. 259.Against that statutory background, affordable housing plainly falls within the definition of “public purpose” under the Land Act and PLUPA. According to those statutes, public purposes" means the purposes of:“(a)transportation including roads, canals, highways, railways, bridges, wharves and airports;(b)public buildings including schools, libraries, hospitals, factories, religious institutions and public housing;................(g)any other analogous public purpose.” 260.Affordable housing directly corresponds with those categories because it is a state backed housing programme intended to fulfil Article 43 rights as evinced by the fact that it is funded and regulated through public law mechanisms; it is aimed at addressing national housing deficits and social welfare concerns; and it includes social housing and housing for low-income and vulnerable persons. 261.Further, under the Physical and Land Use Planning (Classification of Strategic National or Inter-County Projects) Regulations, Legal Notice No. 156 of 2019, affordable housing projects are expressly classified as Strategic National Projects under the category of Housing Projects. 262.The classification of affordable housing projects as strategic national projects is legally significant. It demonstrates that Parliament and the regulatory framework recognize affordable housing not merely as private real estate development, but as infrastructure and social policy intervention of national importance tied to socio-economic rights, urban planning, settlement policy and public welfare objectives. 263.Based on the legal provisions governing affordable housing, the Court finds that affordable housing is indeed a public programme grounded in constitutional, statutory and public policy objectives. 264.The Court however reiterates that the mere fact that a programme pursues a public purpose does not exempt it from compliance with constitutional safeguards, statutory procedures, environmental obligations and the requirements of lawful and accountable governance. IV. Whether the impugned development unlawfully interferes with or alienates land reserved for public use? 265.Once land acquires the legal status of public land, it is protected by constitutional safeguards relating to public trust, public administration, and lawful use. Article 62(1) of the Constitution defines public land to include inter alia:“b)land lawfully held, used or occupied by any State organ, except any such land that is occupied by the State organ as lessee under a private lease;c)land transferred to the State by way of sale, reversion or surrender;h)all roads and thoroughfares provided for by an Act of Parliament” 266.In Kiluwa Limited & another vs Business Liaison Company Limited & 3 others (Petition 14 of 2017) [2021] KESC 37 (KLR) (6 August 2021) (Judgment), the Supreme Court clarified that Article 62 was intended to clearly delineate and consolidate the category of public land so as to protect it from irregular privatization and unlawful alienation, by stating thus:“What article 62 of the Constitution does is to clearly delimit the frontiers of public land by identifying and consolidating all areas of land that were regarded as falling under the province of “public tenure.” 267.We are in agreement with the Petitioner to the extent that where land has acquired the status of public land, any attempt to alter, redesignate or convert such land from one category to another must comply strictly with the constitutional and statutory safeguards governing public land administration. This position was reaffirmed by the Supreme Court in The Matter of the National Land Commission [2015] KESC 3 (KLR) where it stated thus:“ 232.Section 9 of the Act provides for the conversion of land from public to private, and vice versa, with a specific provision that any major transaction involving conversion of public land to private land, requires the approval of both the National Assembly and the County Assembly.” 268.The Affordable Housing Act has introduced a distinct statutory framework governing ownership and occupation within affordable housing schemes. To this end, Section 54 of the Affordable Housing Act establishes mechanisms through which housing units developed under the affordable housing programme remain subject to continuing statutory regulation and control by the State, including restrictions relating to allocation and transfer. 269.In our view, the statutory framework contemplated under the Affordable Housing Act creates a unique tenure structure that differs from the absolute private ownership contemplated under Article 40 of the Constitution, by preserving a continuing element of public control over the land and housing units developed thereon. 270.On the contention by the 1st and 2nd Interested Parties that the land was surrendered for a specific and exclusive public utility purpose and therefore ought to continue being utilized solely for that purpose, particularly as a buffer zone, we have carefully considered the material placed before the Court in support of that assertion. 271.The Interested Parties referred us to two decisions in support of the proposition that land parcel number 737 has been litigated upon and that courts have consistently held that upon its subdivision, land reserved for public utility purposes was surrendered and that it cannot lawfully be allocated for any other use. 272.The contention is fortified by The Physical and Land Use Planning Act (The Physical and Land Use Planning (General Development Permission and Control) Regulations) which provides as follows at Regulation 10:“(1)Subdivision schemes under regulation 7 may be subjected to surrender of land for public use in accordance with section 58 and paragraph 7 of the Third Schedule to the Act.(2)Where required by the county executive committee member, in consultation of the county director of physical and land use planning, suitable and adequate land shall be surrendered by the applicant at no cost to the County Government for open spaces, amenities, recreational facilities, excluding road reserves, a public purpose relating to the area to be subdivided or for road-widening.(3)Land surrendered in subregulation (2) shall be utilized for the planned purpose…” 273.We have considered the aforementioned provision and the judgement dated 6th October 2021 issued by Hon. Justice S. Okong’o (as he then was), in Kisumu Guest House Limited vs L. Ouma & 12 others [2021] eKLR, which we have appraised and we note that although the learned judge found that the Plaintiff in the matter had encroached on part of Plot No.733 which had been set aside for public use, there was no certainty as to the planned purpose that the land was set aside for. The learned Judge noted as follows:“It is also not disputed that in the sub-division scheme, the company set aside portions of Plot No. 737 for use by the 94 of 186 residents of the Estate as open spaces, roads and such like.” 274.We have also considered the Judgement delivered by Lady Justice Lucy Mbugua in Waithira & 3 others vs Kenya National Highways Authority ( [2025] KEELC 1337 (KLR),which was also relied on by the 1st and 2nd Interested Parties to persuade us that the land where Southlands Housing Programme is situate was set aside for a specific purpose and that it cannot be put to any other use. In the matter, while the learned judge found that the 1st Plaintiff’s parcel, Land Reference No. Nairobi/Block 72/3074 had encroached on the Defendant’s buffer zone, the specificity of the use of the buffer zone arising from the subdivision of land parcel number 737 did not arise. The court concluded as follows:“This far, I make a finding that the Defendant should go ahead and hive off part of the suit land that encroaches on the buffer zone as Article 40 of the Constitution does not extend protection to land that is unlawfully acquired.” 275.In our view, the principle emerging from the foregoing decisions is that land reserved for essential public utility functions cannot be arbitrarily alienated or allocated to private individuals. They do not speak to the 1st and 2nd Interested Parties’ view that public land surrendered for a particular purpose cannot be used by the government in a manner inconsistent with the purpose for which it was reserved for. This position was affirmed by the Apex Court in Dina Management Ltd vs County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment). 276.Further, the 1st and 2nd Interested Parties produced a Partial Development Plan which is undated, unsigned and unauthenticated and which they claim was supplied to them by the area Ward Administrator upon inquiry regarding the project. In our view, the said Partial Development Plan has no evidentiary value in the absence of authentication by the issuing authority or any accompanying official certification establishing its source. 277.Further, the 1st and 2nd Interested Parties did not place before the Court a formal instrument of surrender, approved subdivision scheme, planning approval conditions or any other primary documentary evidence conclusively demonstrating the exact purpose for which the land was allegedly reserved or surrendered to the Government. In the absence of such documentary evidence, the Court is unable to conclusively determine that the suit property was indeed set aside as a buffer zone incapable of any subsequent public development. 278.The 1st and 2nd Interested Parties also made reference to a letter dated 30th August 2002 authored by the predecessor of the 8th Respondent in which it was allegedly recommended that the area was unsuitable for development. While we acknowledge the contents of the said correspondence, we note that institutional mandates regarding strategic installations has significantly evolved since the coming into force of the Affordable Housing Act as read together with PLUPA and its regulations. 279.In this regard, we make reference to Section 69 of PLUPA which provides as follows:“(1)The Cabinet Secretary shall consider and offer policy guidance to any public institution proposing a project of strategic national importance.(2)Any inter-county physical and land use development projects shall be approved in accordance with section 33.(3)The Cabinet Secretary shall within sixty days of the enactment of this Act make regulations prescribing for the projects that may be classified as strategic national or inter-county projects.(4)The Cabinet Secretary may consider and approve development permission for any development to be carried out within the prescribed projects of strategic national importance.” 280.The regulations contemplated under Section 69 of PLUPA are the Physical and Land Use Planning (Classification of Strategic National or Inter-County Projects) Regulations. Under Regulation 2, “strategic national projects” are interpreted to mean:“projects identified as strategic national projects by the national and county governments under the Act, the Intergovernmental Relations Act (Cap. 265F) or any other written law.” 281.Under Schedule 6(9) of the said Regulations, projects for the following types of housing are classified as strategic installations:a.“Affordable housing projectsb.County slum redevelopment projectsc.County government housing including institutional housing, government pool housing, and civil or state officers housing.” 282.Therefore, Section 69 of PLUPA and the regulations thereunder contemplate that prescribed strategic national projects may be considered and approved through the national planning framework under the authority of the Cabinet Secretary.This is a shift from the development permission regime ordinarily applicable to private developments under Sections 57 and 58 of the Act, for which the 8th Respondent would ordinarily issue development permission for the Project. 283.In our view, since the Project qualifies as a strategic national project, it is the Cabinet Secretary who has the mandate to issue development permission and not the County Government. It is therefore our finding that the 8th Respondent had no mandate to issue development permission for the impugned affordable housing development which is a strategic installation. V. Whether the Respondents adhered to the Constitutional principles on public participation during the conception and implementation of the project and if, the EIA Licence No. NEMA/EIA/PSL/0001425 issued on 16th December 2025 is valid? 284.Article 2, sub-section 4 of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), 1998 defines the public as:“one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups.” 285.Under Article 10 of the Constitution, public participation is a fundamental principle of governance. Article 69 specifically references the public participation in environmental management by requiring the state to encourage public participation in the management, protection and conservation of the environment. Article 47 makes reference to Fair Administrative Action. 286.These constitutional dictates are reinforced by the provisions of EMCA and the Environment and Land Court Act, both of which require the Environment and Land Court, in the exercise of its jurisdiction to be guided by the principles of sustainable development, which include public participation in development of policies, plans and processes for the management of the environment. 287.Other than the Constitution and EMCA, Principle 10 of the Rio Declaration on Environment and Development, which is applicable by dint of Article 2(5) and 2(6) of the Constitution, provides that:“Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.” 288.A five-judge bench of the High Court in the case of Mohamed Ali Baadi and others vs Attorney General & 11 others [2018] eKLR, succinctly explained the rationale of having public participation as a constitutional imperative as follows:“It may be tempting to ask why the law and indeed the Constitution generally imposes this duty of public participation yet the State is generally a government for and by the people. The people elect their representative and also participate in the appointment of most, if not all public officers nowadays. The answer is, however, not very far. Our democracy contains both representative as well as participatory elements which are not mutually exclusive but supportive of one another. The support is obtained even from that singular individual. We also have no doubt that our local jurisprudence deals at length with why the Constitution and statute law have imposed the obligation of public participation in most spheres of governance and generally we take the view that it would be contrary to a person's dignity (see Article 28) to be denied this constitutional and statutory right of public participation.” 289.Setting out the parameters for effective public participation, the Supreme Court of Kenya in British American Tobacco Kenya, PLC (formerly British American Tobacco Kenya Limited) vs Cabinet Secretary for the Ministry of Health & 2 Others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (The Affected Party) [2019] eKLR after consideration of several judicial pronouncements noted:“From the foregoing analysis, we would like to underscore that public participation and consultation is a living constitutional principle that goes to the constitutional tenet of the sovereignty of the people. It is through public participation that the people continue to find their sovereign place in the governance they have delegated to both the National and County Governments. Consequently, while Courts have pronounced themselves on this issue, in line with this Court’s mandate under Section 3 of the Supreme Court Act, we would like to delimit the following framework for public participation:Guiding Principles for public participation(i)As a constitutional principle under Article 10(2) of the Constitution, public participation applies to all aspects of governance.(ii)The public officer and or entity charged with the performance of a particular duty bears the onus of ensuring and facilitating public participation.(iii)The lack of a prescribed legal framework for public participation is no excuse for not conducting public participation; the onus is on the public entity to give effect to this constitutional principle using reasonable means.(iv)Public participation must be real and not illusory. It is not a cosmetic or a public relations act. It is not a mere formality to be undertaken as a matter of course just to ‘fulfill’ a constitutional requirement. There is need for both quantitative and qualitative components in public participation(v)Public participation is not an abstract notion; it must be purposive and meaningful.(vi)Public participation must be accompanied by reasonable notice and reasonable opportunity. Reasonableness will be determined on a case to case basis.(vii)Public participation is not necessarily a process consisting of oral hearings, written submissions can also be made. The fact that someone was not heard is not enough to annul the process. (viii) Allegation of lack of public participation does not automatically vitiate the process. The allegations must be considered within the peculiar circumstances of each case: the mode, degree, scope and extent of public participation is to be determined on a case to case basis.(ix)Components of meaningful public participation include the following; a) clarity of the subject matter for the public to understand; b). structures and processes (medium of engagement) of participation that are clear and simple; c). opportunity for balanced influence from the public in general; d). commitment to the process; e). inclusive and effective representation; f). integrity and transparency of the process; g). capacity to engage on the part of the public, including that the public must be first sensitized on the subject matter.” 290.In addition, courts have consistently held that public participation should be meaningful and qualitative. In Doctors for Life International vs Speaker of the National Assembly & Others (CCT12/05) [2006] ZACC 11, the South African Constitutional Court identified the underlining standard and quality of public participation as follows:“Whether a legislature has acted reasonably in discharging its duty to facilitate public involvement will depend on a number of factors. The nature and importance of the legislation and the intensity of its impact on the public are especially relevant. Reasonableness also requires that appropriate account be paid to practicalities such as time and expense, which relate to the efficiency of the law-making process. Yet the saving of money and time in itself does not justify inadequate opportunities for public involvement. In addition, in evaluating the reasonableness of Parliament’s conduct, this Court will have regard to what Parliament itself considered to be appropriate public involvement in the light of the legislation’s content, importance and urgency. Indeed, this Court will pay particular attention to what Parliament considers to be appropriate public involvement.” 291.The Petitioner’s case, as supported by the 1st and 2nd Interested Parties, on public participation is three-fold. First, they contended that there was no meaningful public participation throughout the broader six-phase project development cycle, including policy design, budgeting, procurement and implementation, contrary to Articles 10, 220 and 227 of the Constitution. 292.Secondly, they asserted that the purported public participation undertaken during the EIA process was a sham, as the alleged consultations did not involve the residents and estates directly affected by the project and therefore failed to meet the constitutional threshold of meaningful and inclusive participation under Article 10 of the Constitution and Section 59 of EMCA. 293.Thirdly, they argued that the Respondents failed to comply with the mandatory publication and notification requirements under Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003, including publication through Gazette notices, newspaper advertisements, radio announcements and advance notices of public meetings. 294.The Respondents, namely the 1st to 7th Respondents together with the 10th Respondent, take a contrary position. PS Charles M. Hinga, maintained that meaningful public participation was undertaken. 295.The 8th Respondent contended that environmental regulation and issuance of EIA licenses fall exclusively within the mandate of the 10th Respondent though it acknowledges that the ESIA Report was duly submitted and an EIA License No. NEMA/EIA/PSL/0001425 issued. 296.The 11th Interested Party, distanced itself from the conception and implementation of the project and confined its role to statutory water and sewerage service provision. The 18th Interested Party, limited its response to aviation safety concerns and states that aeronautical studies and consultations were undertaken prior to issuance of height approvals. 297.The public participation referenced by the 1st to 7th Respondents was undertaken by REDSSED Company Limited within the framework of preparing the Environmental and Social Impact Assessment (ESIA) report for the Project. 298.Environmental Impact Assessment (EIA) is one of the principal tools of environmental management and sustainable development. It is intended to ensure that decision-makers undertake development planning with full appreciation of the likely environmental, social and ecological consequences of a proposed project before implementation commences. 299.The need for Environmental Impact Assessment was succinctly expressed in Principle 17 of the 1992 Rio Declaration on Environment and Development, which provides that:“Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant impact on the environment and are subject to a decision of a competent authority.” 300.Similarly, Agenda 21 underscores the importance of integrating environmental considerations into decision-making processes at all levels and specifically recognizes the role of individuals, groups and organizations in Environmental Impact Assessment procedures. It calls upon States to ensure that environmental implications are considered before implementation of development projects, that infrastructure developments are environmentally suitable, and that environmental governance processes remain transparent, participatory and accountable. 301.In Kenya, that framework is constitutionally anchored under Article 69(1)(f) of the Constitution, which obligates the State to establish systems of environmental impact assessment, environmental audit and environmental monitoring. The framework is operationalized through the EMCA together with the Environmental (Impact Assessment and Audit) Regulations, 2003. 302.Section 58 of EMCA requires proponents of projects falling within the Second Schedule to undertake a full Environmental Impact Assessment Study and submit an Environmental Impact Assessment Study Report to the Authority before commencement or implementation of such projects. The section specifically provides that:“(1)Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.(2)The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority:Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases.” 303.Public participation forms an integral and indispensable component of the Environmental Impact Assessment process. Indeed, EMCA and the Environmental (Impact Assessment and Audit) Regulations expressly contemplate participation by affected persons, stakeholders and the public within the environmental decision-making framework. 304.The rationale is self-evident. Public participation ensures that persons likely to be affected by a proposed development are informed of the project, afforded an opportunity to interrogate its anticipated impacts, and enabled to meaningfully contribute to the decision-making process before implementation occurs. 305.The 1st to 7th Respondents contended that they undertook a structured and inclusive public participation exercise which satisfied both constitutional and statutory thresholds. In support of those assertions, they presented public participation records together with ESIA documentation prepared by REDSSED Company Limited. 306.According to the reports produced by them, household surveys were conducted on 29th and 30th May 2025, while key informant interviews (KIIs) were undertaken on 11th June 2025. The reports further indicate that a public baraza relating to Kibra Lots 1, 2, 3, and 4 were held on 30th July, 2025 at Ngei Primary School. The reports also state that pre-consultation was undertaken on 12th June, 2025 in which requests were submitted to the Langata DCC Office. 307.As regards Kibra Lot 5, the court notes that the public participation report appearing at page 491 of Mr. Hinga’s affidavit references public participation undertaken in respect of Kibra Lot 3. Nonetheless, separate minutes were annexed in relation to each of the five lots. 308.A critical issue however immediately arises regarding the chronology of those events vis-à-vis the commencement of the impugned works. The Petitioner’s case, which is substantially corroborated by the affidavits of the 1st and 2nd Interested Parties, and conceded by the Respondents is that excavation, site clearance and preliminary construction activities commenced in March 2025, before the consultations, surveys and public barazas relied upon by the Respondents were undertaken. 309.We opine that public participation is intended to operate as a preventive and deliberative safeguard, not as a post facto procedural formality aimed at legitimizing decisions already made and substantially implemented. Further, once excavation works, site clearance and foundational activities have commenced, the decision-making process has, to a large extent, already crystallized, thereby substantially diminishing the efficacy and meaningfulness of any subsequent consultations. 310.The impugned project, which according to the license comprises over 15,000 housing units, falls within the category of high-risk projects contemplated under the Second Schedule to the EMCA as amended by Legal Notice No. 31 of 30th April, 2019. In particular, paragraph 2(g) of the said Legal Notice classifies the establishment of new housing estate developments exceeding one hundred housing units as high-risk projects. 311.Consequently, the impugned development comprising of over 15,000 housing units clearly falls within the category of projects requiring enhanced public participation and wider dissemination obligations under Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003. 312.Regulation 17 provides thus:“(1)During the process of conducting an environmental impact assessment study under these Regulations, the proponent shall in consultation with the Authority, seek the views of persons who may be affected by the project.(2)In seeking the views of the public, after the approval of the project report by the Authority, the proponent shall-a.publicize the project and its anticipated effects and benefits by(i)posting posters in strategic public places in the vicinity of the site of the proposed project informing the affected parties and communities of the proposed project:(ii)publishing a notice on the proposed project for two successive weeks in a newspaper that has a nationwide circulation; and(iii)making an announcement of the notice in both official and local languages in a radio with a nationwide coverage for at least once a week for two consecutive weeks;b.hold at least three public meetings with the affected parties and communities to explain the project and its effects, and to receive their oral or written comments;c.ensure that appropriate notices are sent out at least one week prior to the meetings and that the venue and times of the meetings are convenient for the affected communities and the other concerned parties; andd.ensure, in consultation with the Authority that a suitably qualified coordinator is appointed to receive and record both oral and written comments and any translations thereof received during all public meetings for onward transmission to the Authority.” 313.We note that the aforecited regulation imposes mandatory requirements intended to ensure broad, inclusive and effective dissemination of information to all persons likely to be affected by a proposed project. 314.It requires specifically publication of notices in the Kenya Gazette, in newspapers with nationwide circulation, and radio announcements in languages understood by the affected community. The rationale underlying those requirements is self-evident. Environmental decisions of such magnitude cannot be confined to selective stakeholder engagements or localized consultations alone, but must ensure that all potentially affected persons are adequately informed and afforded an opportunity to participate. 315.In the present matter, no evidence was placed before the Court demonstrating compliance with those mandatory publication and notification requirements. There was no evidence of Gazette notices, newspaper advertisements, radio announcements or prior public notices inviting affected residents to participate in the impugned process. The stamped DCC letter and internal administrative correspondence relied upon by the Respondents cannot substitute the express statutory requirements under Regulation 17. 316.On a keen perusal of the attendance lists and records referenced by the Principal Secretary, the Court has noted that the persons reflected therein are drawn from the following areas: Otiende, Southlands, Raila, Gatwekera, Soweto, Undugu, Kibra, Lang’ata, Sarang’ombe, Lindi, Mashimoni and Kianda. While that demonstrates that some level of engagement was undertaken within sections of the wider locality, the Southlands Affordable Housing Project is, by its very nature, a large-scale and high-impact development whose implications extend far beyond isolated clusters of attendees reflected in the lists produced before the court. 317.The project touches on a much broader geographical, infrastructural and environmental landscape. Indeed, the material before the court shows that the project area is closely bordered by Wilson Airport, the Kenya Prisons Staff Training College, the Southern Bypass corridor, and the edges of Nairobi National Park, while simultaneously directly affecting numerous adjoining residential estates within Lang’ata. 318.In those circumstances, meaningful public participation could not be confined to limited stakeholder engagements alone. The scale, location and potential impact of the project demanded a far broader, structured and demonstrably inclusive participatory process capable of reaching all categories of persons likely to be affected environmentally, infrastructurally, economically and socially. 319.The Petitioner and the 1st and 2nd Interested Parties also challenged the integrity of the public participation records relied upon by the Respondents. They pointed to identical photographs across the five reports, substantially similar minutes, identical stakeholder analysis tables and placeholder dates marked “XXX” in the table titled “Key Stakeholder Consultation Meetings.” These were serious allegations touching on the integrity, authenticity and reliability of the participatory record. 320.The Respondents did not satisfactorily explain how the same photographs, similar minutes and identical stakeholder analysis could properly represent separate consultations for different lots with different receptors, impacts and affected persons. For a project of this magnitude, affecting multiple sites and diverse neighbouring communities, the Court would have expected a clear, differentiated and verifiable record of notices, attendances, issues raised, responses given, and reasons why particular views were accepted or rejected. 321.There is also another distinct but equally important aspect of public participation arising in this matter. Beyond the consultations allegedly undertaken by the project proponents and their consultants during preparation of the ESIA reports, the Environmental (Impact Assessment and Audit) Regulations, 2003 impose separate and mandatory statutory obligations upon the 10th Respondent, the National Environment Management Authority, once an Environmental Impact Assessment Study Report is submitted to it. Those obligations are not discretionary formalities but constitute an independent regulatory safeguard intended to ensure transparency, broad public awareness, inter-agency consultation and informed environmental decision-making before issuance of an EIA license. 322.The Petitioner and the 1st and 2nd Interested Parties have specifically contended that those statutory publication and notification requirements were never complied with. The court notes that despite the issue having been expressly raised in the Petition, the Supplementary Affidavit and the submissions, the 10th Respondent (NEMA), which has actively participated in these proceedings, made no substantive attempt to demonstrate compliance with the mandatory requirements stipulated under Regulations 20, 21, 22 and 23 of the Environmental (Impact Assessment and Audit) Regulations, 2003. 323.The court further notes that the 10th Respondent, whose mandate is to ensure that the provisions of the EMCA and regulations thereunder are to be complied with by project proponents, did not file a Replying Affidavit to rebut the allegations by the Petitioner and the 1st and 2nd Interested Parties as required under the The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules. Instead, they filed a document referenced “Response to the Petition by the 10th Respondent” which had no annexures or evidential value. 324.It is worth noting that under Regulation 20, upon receipt of an Environmental Impact Assessment Study Report, the Authority is obligated within fourteen days to circulate the report to relevant lead agencies for comments. Those agencies are thereafter required to review the report to ascertain whether it complies with the approved terms of reference and whether it adequately addresses the environmental, social and technical implications of the project. 325.Further, Regulation 21 imposes a direct obligation upon the Authority itself to invite public comments within fourteen days of receipt of the Environmental Impact Assessment Study Report. The Regulation expressly requires publication of notices for two consecutive weeks in the Kenya Gazette and in newspapers with nationwide circulation, particularly those widely circulating within the project area. 326.It additionally mandates radio announcements in both official and local languages through stations with nationwide coverage. The notice must disclose the nature and location of the project, its anticipated impacts, proposed mitigation measures, where the report may be inspected, and the period within which comments may be submitted. 327.Regulation 22 empowers the Authority to convene public hearings upon receipt of oral or written comments and prescribes detailed publicity requirements regarding such hearings, including newspaper notices and radio announcements in local and national languages. 328.Regulation 23 then obligates the Authority, before issuing an EIA license, to take into account the validity and adequacy of the ESIA report, comments from lead agencies and interested parties, the outcome of any public hearing conducted, and all other relevant environmental, social and cultural considerations. 329.In our view, those requirements serve a fundamentally different purpose from localized stakeholder meetings or barazas organized by project proponents. Whereas consultations undertaken by proponents may target selected stakeholders or immediate communities, the statutory publication obligations imposed upon NEMA are intended to guarantee broader public awareness and access to information, particularly for persons who may not attend localized meetings yet remain environmentally, economically or socially affected by the project. They operationalize the constitutional values of openness, accountability and public participation within environmental governance. 330.In this instance, no Gazette Notice, newspaper publication, radio announcement, public invitation notice, or evidence of circulation of the ESIA report to lead agencies was placed before the court by the 10th Respondent. 331.Equally absent was any evidence demonstrating the timelines within which comments were invited from the public, the nature of comments received, whether any lead agency comments were sought or received, or how such comments were considered before the impugned license was issued. 332.The Court has taken note of the concerns raised regarding the potential environmental, infrastructural and social impact of the project, including environmental degradation, possible effect on neighbouring properties and questions on its impact of key installations such as Wilson Airport, the Nairobi National Park and Langata Barracks, Trans-African Transport Corridor Road and rail reserve. These are the very matters that ought to inform and form part of a meaningful public participation exercise under EMCA and the Environmental (Impact Assessment and Audit) Regulations, 2003. 333.The next question is whether the subsequent issuance of Environmental Impact Assessment Licence No. NEMA/EIA/PSL/0001425 on 16th December, 2025 could retrospectively validate or regularise a project whose implementation had already commenced. 334.The procedure for application of an EIA license is set out under Section 58 of EMCA. It provides as follows:“(1)Notwithstanding any approval, permit or license granted under this Act or any other law in force in Kenya, any person, being a proponent of a project, shall before for an financing, commencing, proceeding with, carrying out, executing or conducting or causing to be financed, commenced, proceeded with, carried out, executed or conducted by another person any undertaking specified in the Second Schedule to this Act, submit a project report to the Authority, in the prescribed form, giving the prescribed information and which shall be accompanied by the prescribed fee.(2)The proponent of any project specified in the Second Schedule shall undertake a full environmental impact assessment study and submit an environmental impact assessment study report to the Authority prior to being issued with any licence by the Authority: Provided that the Authority may direct that the proponent forego the submission of the environmental impact assessment study report in certain cases.” 335.As already stated, the Southlands Affordable Housing Project plainly falls within the category of high-impact and high-risk developments contemplated under the Second Schedule to EMCA requiring a comprehensive Environmental Impact Assessment Study Report before implementation. 336.The very purpose of the EIA regime is to ensure that projects of such magnitude are subjected to rigorous environmental scrutiny before excavation, construction or implementation commences. This is because the environmental, infrastructural, social and ecological consequences of large-scale developments are often irreversible once implementation begins. 337.It is for that reason that Section 58 of EMCA expressly prohibits the financing, commencement, execution or carrying out of projects specified under the Second Schedule prior to the undertaking of an Environmental Impact Assessment study and issuance of an EIA license. 338.The chronology emerging from the material before the Court demonstrates the precise mischief the statute sought to avoid. Excavation and preliminary works had already commenced by March 2025. NEMA itself acknowledged through its correspondence dated 26th March 2025 that the project had not at that stage been subjected to an Environmental Impact Assessment process. 339.The Environmental and Social Impact Assessment Reports were only submitted on 21st September 2025, while the Environmental Impact Assessment Licence No. NEMA/EIA/PSL/0001425 was eventually issued on 16th December 2025, several months after implementation activities had already begun, during the pendency of this suit and after the Court had issued conservatory orders. 340.The 1st to 7th Respondents conceded that preliminary works had commenced while the EIA process was still ongoing. However, they shift blame to the 10th Respondent’s online licensing system. It seems to us that the 1st to 7th and 10th Respondents were hell bent on violating the Constitution, EMCA and its regulations at all costs. 341.The Court is unable to accept the proposition advanced by the 1st to 7th and 10th Respondents that such a fundamental statutory requirement can be retrospectively regularized merely because a license was eventually issued. We opine that this is an act of sheer impunity. 342.To hold otherwise would reduce the entire Environmental Impact Assessment framework into a procedural afterthought and defeat the preventive and precautionary character of environmental governance under EMCA. Environmental compliance for projects of this nature cannot be approached casually, informally or as a matter capable of later administrative correction once implementation is already underway. 343.It must be emphasized that public bodies, no matter how well intentioned, may only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation. 344.As emphasized by the South African Constitutional Court in Fedsure Life Assurance Ltd vs Greater Johannesburg Transitional Metropolitan Council (CCT7/98) [1998] ZACC 17; 1999 (1) SA 374 (CC); 1998 (12) BCLR 1458 (CC) (14 October 1998) the doctrine of legality requires that all exercises of public power have a lawful basis and must be exercised strictly within the scope of statutory authority. 345.Similarly, in Rachel Adhiambo Ogola & another vs Council of Legal Education & Another [2017] KEHC 2724 (KLR) the court referenced the decision in Daniel Ingida Aluvaala & another vs Council of Legal Education & Another [2017] eKLR wherein it was observed that:“Public bodies, no matter how well-intentioned, may only do what the law empowers them to do. That is the essence of the principle of legality, the bedrock of our constitutional dispensation, which is enshrined in our constitution…” 346.This Court fully agrees. For a project of this magnitude and potential environmental impact, strict compliance with the Environmental Impact Assessment framework was not optional. It was mandatory. The subsequent issuance of Environmental Impact Assessment Licence No. NEMA/EIA/PSL/0001425 on 16th December, 2025 could not retrospectively sanitize implementation activities already undertaken in direct contravention of the Constitution and Section 58 of EMCA. 347.The upshot of the foregoing is that the EIA license as procured on 16th December, 2025 is invalid. VI. Whether the Petitioners have established the alleged constitutional violations? a. Alleged violation of Articles 40, 60, 62 and 66 of the Constitution. 348.The Petitioner and the 1st and 2nd Interested Parties contend that the implementation of the Southlands Affordable Housing Project violated the residents’ property rights protected under Article 40 of the Constitution. 349.Article 40(1) guarantees every person the right, either individually or in association with others, to acquire and own property of any description in any part of Kenya, while Article 40(2) prohibits arbitrary deprivation of property or limitation of property rights on discriminatory grounds. The Petitioner further relied on Articles 60, 62 and 66 of the Constitution relating to principles of land policy, public land administration and regulation of land use in the public interest. 350.Supported by the 1st and 2nd Interested Parties, they opine that the impugned project unlawfully interferes with the rights and legitimate expectations of residents of Southlands, Civil Servants, Uhuru Gardens I and II, Maasai, White House, Royal Park, Akiba, Jambo, Sun Valley I and II, Moi Otiende, NHC and other neighbouring estates within Lang’ata Constituency. They contend that the land in question formed part of a 120-metre Trans-African Transport Corridor Road and rail reserve and therefore constituted public land held in trust for the public under Article 62(2) of the Constitution. 351.According to the Petitioners, the conversion of the land to affordable housing unlawfully alienated public utility land, violated Article 40(6) of the Constitution, and amounted to an unconstitutional interference with public property rights and land use principles. 352.The Respondents, on the other hand, maintain that the suit property was lawfully designated for affordable housing development and deny that the project unlawfully interferes with any proprietary rights held by the Petitioners or surrounding residents. 353.The Court has already addressed elsewhere in this judgment that the suit property was lawfully designated for affordable housing development, which itself constitutes a recognized public purpose within the constitutional and statutory framework governing land use and housing policy. 354.In those circumstances, the Petitioner’s and the 1st and 2nd Interested Parties’ contention that the land remained a protected transport corridor or public utility reserve unlawfully converted to private use has not been established. 355.Further, no proprietary interest belonging to the Petitioner or the residents said to be affected was specifically identified or demonstrated to have been arbitrarily deprived, restricted or extinguished within the meaning of Article 40 of the Constitution. The broad allegations that the project negatively affected neighbouring estates or interfered with generalized public expectations, without proof of a legally cognizable proprietary interest over the suit property, are insufficient to establish a constitutional violation. 356.Accordingly, the Court finds that the plea founded on alleged violation of Articles 40, 60, 62 and 66 of the Constitution fails. b. Alleged violation of Articles 42, 69 and 70 of the Constitution 357.Article 42 of the Constitution guarantees every person the right to a clean and healthy environment and the right to have the environment protected for the benefit of present and future generations through legislative and other measures. 358.On the other hand, Article 69(1)(a) imposes obligations upon the State to ensure sustainable exploitation, utilisation, management and conservation of the environment, while Article 70 grants every person the right to approach the Court where the right to a clean and healthy environment has been denied, violated, infringed or threatened. 359.The right to a clean and healthy environment transcends and includes the right to life as protected under Article 26 of the Constitution. The High Court in Peter K Waweru vs Republic [2006]eKLR speaking to this position noted:“The right of life is not just a matter of keeping body and soul together because in this modern age, that right could be threatened by many things including the environment. The right to a clean environment is primary to all creatures including man; it is inherent from the act of creation, the recent restatement in the Statutes and the Constitutions of the world notwithstanding. This right and the other human rights, including civil, cultural, economic, political and social rights, are universal, interdependent and indivisible.” 360.The right to a clean and healthy environment has now been internationally recognised as a universal human right, including by the United Nations Human Rights Council and the United Nations General Assembly. As observed in the article by Azadeh Chalabi, “A New Theoretical Model of the Right to Environment and its Practical Advantages” (2023) Human Rights Law Review;“The intertwining of the elements of the environment implies that any act or omission which contributes negatively to the qualities of the environment and its sustainability over time will be in violation of the right to environment.” 361.The Petitioner, supported by the 1st and 2nd Interested Parties contend that the Respondents violated Article 42 of the Constitution by commencing excavation, site clearance and implementation works before completion of the Environmental Impact Assessment process and prior to the issuance of Environmental Impact Assessment Licence No. NEMA/EIA/PSL/0001425. 362.They assert that the project proceeded without lawful environmental approval despite the scale of the proposed development comprising approximately 15,960 housing units intended to accommodate an estimated population of between 60,000 and 80,000 persons within the Lang’ata area. 363.They further contend that the project threatens nearby environmental systems and residential amenities through destruction of green spaces, excavation within the buffer zone area, interference with drainage and sewer infrastructure, increased pressure on water and sewerage systems, and degradation of the environmental character of the surrounding estates. 364.Additionally, they aver that the excavation works generated excessive dust, vibrations, noise pollution and structural concerns affecting neighbouring homes, while the project also raised concerns relating to aviation safety, ecological sustainability and environmental integrity within Lang’ata and the neighbouring estates. 365.In Moffat Kamau & 9 Others vs Aelous Kenya Ltd & 9 Others, [2016] KEELC 565 (KLR), the Court stated that:“I am prepared to hold that where a procedure for the protection of the environment is provided by law and is not followed, then an assumption ought to be drawn that the project is one that violates the right to a clean and healthy environment, or at the very least, is one that has potential to harm the environment.” 366.The Supreme Court in Export Processing Zone Authority & 10 others (Suing on their own behalf and on behalf of all residents of Owino-Uhuru Village in Mikindani, Changamwe Area, Mombasa) vs National Environment Management Authority & 3 others (Petition E021 of 2023) [2024] KESC 75 (KLR) (6 December 2024) (Judgment) further underscored the precautionary principle and the obligation to adopt anticipatory measures where environmental harm is threatened even in the absence of full scientific certainty. 367.The Court is satisfied that the Petitioner and the 1st and 2nd Interested Parties have established that the impugned project proceeded in disregard of mandatory environmental safeguards intended to protect the environment and surrounding communities. The commencement of excavation and implementation of the project before lawful completion of the EIA process, together with the deficiencies already identified in the ESIA documentation and public participation process, substantially undermined the environmental decision-making framework contemplated under the Constitution and EMCA. 368.The Petitioner and 1st and 2nd Interested Parties further invoke Article 43 of the Constitution and contend that the Respondents cannot rely upon the constitutional objective of affordable housing to justify unlawful processes and violations of other constitutional rights. They argue that a project conceived and implemented contrary to constitutional and statutory safeguards cannot properly advance constitutional rights under Article 43. 369.This Court concurs that constitutional rights are indivisible, interdependent and mutually reinforcing. The constitutional objective of promoting accessible and adequate housing cannot be pursued through processes that disregard constitutional safeguards relating to environmental protection, fair administrative action, public participation and legality. 370.The Court equally recognises that the Affordable Housing Programme is itself grounded upon important constitutional and socio-economic objectives under Article 43. The Court must therefore balance the competing constitutional interests implicated in the present dispute. 371.In the circumstances of this case, the Court is not persuaded that the Affordable Housing Project, merely by reason of its objective or existence, violates Article 43. Rather, the vice identified by the Court lies in the procedural and environmental irregularities surrounding the implementation and approval process. 372.The Court therefore finds that the Petitioner and the 1st and 2nd Interested Parties have established violation and threat to the residents’ rights under Articles 42, 69 and 70 of the Constitution. 373.However, the court finds that the Petitioner and the 1st and 2nd Interested Parties have failed to demonstrate how their right to housing and property as envisaged under Articles 40 and 43 of the Constitution has been violated. c. Alleged violation of Article 10 and Article 47 374.The Petitioner and the 1st and 2nd Interested Parties further contend that the Respondents violated Article 47 of the Constitution by acting on the basis of unsigned ESIA Reports, allegedly fabricated public participation records and a license issued after commencement of works and during subsisting conservatory orders. 375.Article 47 guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 376.The Court has already found that the EIA process was procedurally flawed, that the ESIA Reports exhibited material deficiencies and that meaningful public participation was not demonstrated. The Court has further found that the project commenced before lawful completion of the environmental approval process. 377.In those circumstances, the administrative actions culminating in the issuance of Environmental Impact Assessment Licence No. NEMA/EIA/PSL/0001425 cannot be said to have fully met the constitutional threshold of legality, procedural fairness, transparency and accountability contemplated under Article 47 of the Constitution. 378.The Court therefore finds that the Petitioner and the 1st and 2nd Interested Parties have established violation of the right to fair administrative action under Article 47 of the Constitution. d. Alleged violation of Article 227 of the Constitution 379.The Petitioner has challenged the procurement of REDSSED Company Limited as the Environmental and Social Impact Assessment consultant, contending that its engagement violated Article 227 of the Constitution together with the provisions of the Public Procurement and Asset Disposal Act, 2015. He argues that no evidence had been placed before court demonstrating that the consultancy services were procured through an open, competitive and transparent procurement process as required by law. 380.However, while the Petitioner has questioned the legality of the procurement process relating to the engagement of REDSSED Company Limited, the court must interrogate whether that issue properly falls within its jurisdiction in the present proceedings. 381.Article 227(1) of the Constitution provides that:“When a State organ or any other public entity contracts for goods or services, it shall do so in accordance with a system that is fair, equitable, transparent, competitive and cost-effective.” 382.The above constitutional provision is operationalized through the Public Procurement and Asset Disposal Act, 2015, which establishes the statutory framework governing procurement of public goods and services by State organs and public entities. 383.The gravamen of the present Petition concerns alleged violations of environmental rights, public participation obligations, land use planning requirements, and the legality of the Environmental Impact Assessment process and approvals relating to the Southlands Affordable Housing Project. 384.The challenge to the procurement of REDSSED Company Limited as the ESIA consultant, however, raises a distinct procurement dispute governed by Article 227 of the Constitution and the Public Procurement and Asset Disposal Act, 2015. 385.The Public Procurement and Asset Disposal Act establishes a specialized statutory framework and dispute resolution mechanism for procurement disputes, including review before the Public Procurement Administrative Review Board and appellate processes before the High Court. Determination of the issues raised by the Petitioner would necessarily require interrogation of matters such as the procurement method adopted, tender documentation, evaluation procedures and compliance with procurement law, all of which fall squarely within that specialized regime. 386.In the circumstances, the Court is not persuaded that the present proceedings are the proper forum for determination of the legality or propriety of the procurement process relating to the engagement of REDSSED Company Limited as the ESIA consultant. By dint of Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, this court is devoid of jurisdiction on matters procurement. 387.Accordingly, the Court declines jurisdiction over the procurement challenge founded on Article 227 of the Constitution and the Public Procurement and Asset Disposal Act, 2015. VII. What are the appropriate reliefs? 388.The Petitioner seeks various declaratory, judicial review and injunctive reliefs arising from the implementation of the Southlands Affordable Housing Project. In summary, he seeks declarations that the project and the approvals issued in relation thereto violated the Constitution, the Environmental Management and Coordination Act and the Physical and Land Use Planning Act, particularly in relation to environmental safeguards, zoning, land use regulation and public participation requirements. 389.He further seeks declarations that the suit property was unlawfully converted from public utility land to private development and that no EIA licence or development approval should issue absent full compliance with constitutional and statutory requirements, including meaningful public participation and stakeholder consultation. 390.The Petitioner additionally seeks orders of certiorari, prohibition and mandamus to quash and restrain the impugned approvals and development activities, compel compliance and revocation of approvals, restore and rehabilitate the environment, and permanently restrain further implementation of the project pending compliance with the law. 391.The Constitution vests this Court with broad remedial powers in proceedings brought for the enforcement of fundamental rights and freedoms. Article 23(3) of the Constitution provides that in proceedings brought under Article 22, the Court may grant appropriate relief, including declarations of rights, injunctions, conservatory orders, declarations of invalidity, compensation, and orders of judicial review. 392.In light of the findings made herein, and having considered the pleadings, affidavits, evidence and submissions presented by the parties in totality, the Court is satisfied that the Petitioner has partially established the Petition dated 4th July, 2025. Consequently, the Petition is partially allowed in the following terms:A.A Declaration be and is hereby issued that the Respondents’ actions and omissions in approving, facilitating, and proceeding with the impugned development violated the Petitioner’s and other residents’ constitutional rights under Articles 10, 42, 47, 69, and 70 of the Constitution of Kenya, 2010 as particularized hereunder:i.A Declaration be and is hereby issued that the 1st, 2nd, 3rd, 4th, 5th, 7th, and 10th Respondents, by approving and implementing the impugned project without lawful adherence to statutory and environmental safeguards, have violated the Constitution and the Environmental Management and Coordination Act, by failing to conduct a proper Environmental Impact Assessment (EIA) and obtaining an EIA License before commencing construction.ii.A Declaration does hereby issue that no Environmental Impact Assessment (EIA) license or approval shall be issued in respect of the Southlands Affordable Housing Project unless and until there is full compliance with the law, including:a.Meaningful and effective public participation as captured in this Judgment.b.Obtaining the approval of all lead agencies in accordance with Articles 10, 42, and 69 of the Constitution, and the provisions of EMCA.c.Conducting a comprehensive environmental and social impact assessment and an EIA license from the 10th Respondent.B.An Order of Certiorari does hereby issue quashing EIA License No. NEMA/EIA/PSL/0001425 issued on 16th December, 2025.C.An Order of prohibitory injunction be and is hereby issued restraining the Respondents, their agents, employees, contractors, developers and/or representatives from commencing, continuing, or undertaking any operations and/or construction activities in relation to the Southlands Affordable Housing Project famously known as the Southlands Affordable Housing Project, pending full compliance with the law, including but not limited to:a.Meaningful and effective public participation as captured in this Judgment.b.Obtaining the approval of all lead agencies in accordance with Articles 10, 42, and 69 of the Constitution, and the provisions of EMCA.c.Conducting a comprehensive environmental and social impact assessment and obtaining an Environmental Impact Assessment (EIA) license from the 10th Respondent;D.Each party to bear its own costs, given the public interest nature of the Petition. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2026……………………………………………..O. A. ANGOTEPRINCIPAL JUDGE………………..……………………………..C. A. OCHIENGJUDGE…………………………………………………C. G. MBOGOJUDGEIn the presence of:Ms Nekesa for the Petitioner.Mr. Allan Kamau, Oscar Eredi, Nura Hassan, Issa and Somani for the 1st – 3rd and 5th - 7th Respondents.Mr. Odhiambo for 4th Respondent.Mr. Attalo for 8th Respondent.Mr. Ochiel Dudley for 1st and 2nd Interested Party.Mr. Tallam for Mr. Mogaka for 10th Interested Party.Mr. Najojo for Peter Wanyama for 12th Interested Party.Mr.Ododa for 17th Interested Party.Court Assistant: Tracy