https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5248

 REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCEPPET/E003/2026 ZAHRA ABID HASSAN SHEIKH VS CREEK CONTAINER DEPOT LIMITED RULING KANEEZ ZAHRA SHEIKH aka ZAHRA ABID HASSAN SHEIKH has come to this court by way of petition seeking the following orders :- 1. A declaration that the Petitioner's rights and those of the residents of Baharini Estate and adjacent properties to peacefully enjoy their property and live in a clean and healthy environment have been violated by the actions and inactions of the respondents as outlined in the Petition. 2. A declaration that the Respondent's continued unlawful operations within Baharini Estate is a violation of the petitioner members' right to use and enjoy their property under Article 40 of the Constitution and a violation of their right to clean and healthy environment as contemplated in Article 42 of the Constitution. 3. A declaration that a permanent injunction be issued stopping, halting and discontinuing the Respondent and their servants from carrying on the business of storage of shipping containers or any other related activity and from undertaking any further development and activities on the properties known as VIMN 2440, VIMN 2441 and VIMN 4158 in Baharini Estate, Port Reitz, Mombasa County. 4. An order that the OCS Changamwe and/or the Changamwe Assistant County Commissioner does assist in the implementation of the Orders of this Honourable Court 5. An order for compensation and damages for violation of fundamental rights and freedoms 6. The Costs of the Petition 7. The Honourable Court do issue such orders and give such directions as it may deem fit to meet the ends of justice. The Petition has been brought before the Honourable court under provisions of Section 3 of the National Environmental Management Act which at sub-section 3 states as follows; 'If a person alleges that the right to a clean and healthy environment has been, is being or is likely to be denied, violated, infringed or threatened, in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may on his behalf or on behalf of a group or class of persons, members of an association or in the public interest may apply to the Environment and Land Court for redress and the Environment and Land Court may make such orders, issue such writs or give such directions as it may deem appropriate to— 1. prevent, stop or discontinue any act or omission deleterious to the environment; 2. compel any public officer to take measures to prevent or discontinue any act or omission deleterious to the environment; 3. require that any on-going activity be subjected to an environment audit in accordance with the provisions of this Act; 4. compel the persons responsible for the environmental degradation to restore the degraded environment as far as practicable to its immediate condition prior to the damage; and 5. provide compensation for any victim of pollution and the cost of beneficial uses lost as a result of an act of pollution and other losses that are connected with or incidental to the foregoing. The Petition is based on the infringement of the Petitioner's rights to a clean and healthy environment by the Respondent as a result of the activities being undertaken by the Respondents on the aforementioned properties. The petitioner has raised a preliminary Objection dated 8th July 2026 on grounds that the Petition offends the doctrine of exhaustion as stipulated by Section 9(2) and (3) of the Fair Administrative Action Act which provides for the doctrine of exhaustion, requiring that internal remedies be pursued before invoking the jurisdiction of the Court unless exceptional circumstances are demonstrated.Moreover, that this Honourable Court lacks jurisdiction to determine and make orders thereof in regards to the Petition against the Respondent because it ought to be filed before the County Physical and Land Use Planning Liaison Committee under the Physical and Land Planning Use Act, 2019. On the issue as to whether the Honourable Court has Jurisdiction to hear and determine this Petition. The respondent argues that It is Imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Court is invoked. This position is anchored by Article 159 (2) of the Constitution which mandates Courts to promote Alternative Dispute Resolution mechanisms, including Statutory tribunals and Section 9(2) and (3) of the Fair Administrative Action Act. Where a parent statute has provided for a mechanism for resolving disputes, it is trite that the Court ought to be slow to invoke its inherent jurisdiction unless in exceptional circumstances. This position has been emphasized in the case of Lashad Mohammed Mubarak Versus County Government of Mombasa (2020) eKLR. The Court, in the case of Geoffrey Muthinja & Another Versus Samuel Muguna & Others (2015) KECA 304 KLR, expressly stated that; "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 its own interest within the mechanisms in place for resolution outside the Courts. This accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution." The respondent argues that this Petition challenges the legality of the development approvals, these issues fall within the preview of the Physical and Land Use Planning Act, 2019 and the Environmental Management and Co-ordination Act Cap 387 which provide for statutory mechanisms for dispute resolution. Section 3 of the Physical and Land Use Planning Act, 2019 sets out the objectives of the Act which include but are not limited to the planning, use, regulation and development of land. Apart from providing the framework for development control, it also stipulates a dispute resolution mechanism regarding physical and land use planning. Further, Section 57 (1) provides that a person shall not carry out development within a county without a development permission granted by the respective County Executive Committee member. This means that one needs to make an application to the County Executive Committee member in the particular county in-charge of planning before embarking on development. Section 57 (5) and (6) of the statute bestows the County Executive Committee member the power to revoke a development permission and the power to modify the conditions imposed on a development permission. Clearly, the dispute resolution mechanism has been provided for in Section 61 (3) and (4) which stipulates that a party aggrieved by the decision of a county executive committee member regarding an application for development permission may appeal against that decision to the county physical and land use planning liaison committee within fourteen days of the decision by the County executive committee member and that the committee shall hear and determine the appeal within fourteen days of the appeal being filed. Thereafter, the party aggrieved by the decision of the appeal under subsection three (3) filed before the County Committee may then appeal that decision to the Environment and Land Court. Further reliance is placed in the case of Mutanga & Coffee Company Ltd Versus Shikara Ltd & Another (2015) eKLR, the Court held that where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or any Act of Parliament, that procedure should be strictly followed. The Petitioners have not demonstrated exceptional circumstances exempting them from these procedures. Their redress is contrary to the principles established by the Courts as demonstrated above. Consequently, the jurisdiction of this Court cannot be invoked when the Petitioners have not exhausted all the available forums and remedies provided to them by the parent Statutes governing this sector. This renders this petition premature, incompetent and an abuse of the Court process. The respondent argue that there is a pending matter and investigations before national environment management authority (NEMA) Section 7 of the Environmental Management and Co-ordination Act Cap 387 establishes the National Environment Management Authority. It further provides the functions and powers of the Authority in Section 9. The Authority works to address public grievances and enforce compliance. Section 31 to 36 of the Environmental Management and Co-ordination Act Cap 387 establishes the National Complaints Committee and sets out its functions and powers. With emphasis to Section 31 (a) "The functions of the Complaints Committee shall be— (a) to investigate— (i) (ii) any allegations or complaints against any person or against the Authority in relation to the condition of the environment in Kenya; on its own motion, any suspected case of environmental degradation, and to make a report of its findings together with its recommendations thereon to the Cabinet Secretary" After a complaint is filed in a regulatory Authority's management, some procedures follow leading to the final decision being rendered and the persons aggrieved by the decision can appeal to a higher authority depending on what is stipulated in the Statute establishing and regulating the sector. The respondent contends that in this case, the petitioner avers that she filed a complaint form referenced NEMA/MSA/1/2026/280 dated 22nd May 2026 with National Environment Management Authority raising the same issues they have raised before this Petition. By the existence of the complaint, the National Complaint Committee should render a decision on the complaint. Before rendering a final verdict or recommendation, it carries out on-site investigations or alternative dispute resolution. That afterwards, when the final recommendations have been issued, if aggrieved, one can appeal or challenge the findings through Judicial review or the National Environment Tribunal. The final resort would be the Environment and Lands Court as stipulated by section 129 and 130 of the same Act. By filing this petition when there is a pending complaint addressing the same issues before the National Environment Management Authority, the Petitioner aims at pre-empting the issues before they are addressed by the requisite channels and avenues provided by the statutes governing the environmental sector and the Physical and Land Use Planning sector. The respondent cites the Supreme Court in United Millers Limited Versus Kenya Bureau of Standards & Others (2021) eKLR ,citing Albert Chaurembo Mumba & 7 Others Versus Maurice Munyao & 148 Others (2019) eKLR emphasized that "even where superior Courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to the relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute." The respondent therefore urges the Court to uphold the Preliminary Objection and compel the Petitioner to seek redress from the right forum as provided for by the Physical and Land Use Planning Act, 2019 and the Environmental Management and Co-ordination Act Cap 387 to prevent similar scenarios where parties intentionally violate the procedures provided but run to the Courts without exhausting the mechanisms available to them, therefore, wasting the Court's time in the process and delaying justice to those that deserve it. The petitioner on the other hand submits that while the Respondent has submitted at length on the Preliminary Objection, they have not particularised any section of the law that specifically ousts the jurisdiction of this court to hear and determine the Petition as framed. The Petition is not challenging any development approvals as none were obtained, the Respondent did not comply with the statutory conditions under the Physical and Land Use Planning Act as well as the Environment Management and Coordination Act prior to the setting up of the Container Depot. The petitioner submits that Section 61 (3) and (4) which stipulates that a party aggrieved by the decision of a county executive committee member regarding an application for development permission may appeal against that decision to the county physical and land use planning liaison committee within fourteen days of the decision by the County executive committee member and that the committee shall hear and determine the appeal within fourteen days of the appeal being filed does not apply to the petitioner nor to this petition since the Petitioner 'is not aggrieved by any decision of a county executive member regarding an application for development permission. The Section only applies to the respondent and they have rightly exercised that jurisdiction in the documents attached to their Replying affidavit. The petitioner applies the authority of Lashad Mohammed Mubarak Versus County Government of Mombasa (2020) eKLR relied upon by the Respondent. The petitioner argues that in that cas, the Applicant was the owner of a property who had applied and was given development permission by the county, the development permission was later revoked and the Applicant filed a for judicial review. The court referred the matter to the Liaison Committee under the Physical and Land Use Planning Act as it was the appropriate forum. In the instant case, the Petitioner has not sought any development approvals and as such she has nothing to appeal to the Liaison committee. The petitioner further refers to Amani Residents Welfare Association/Mirema (Suing on Behalf of the Residents of Mirema Estate, Nairobi) v Mark Senteu t/a Cocorico Wines & 5 others (Environment & Land Petition E031 of 2022) [2023] KEELC 22651 (KLR) where the High Court at Milimani went ahead to fully determine a similar petition raised on similar grounds. The petitioner invokes Section 78 of the Physical and Land Use Planning Act outlines the functions of the County Physical and Land Use Planning Liaison Committee as follows; The functions of the County Physical and Land Use Planning Liaison Committee shall be to— 1. hear and determine complaints and claims made in respect to applications submitted to the planning authority in the county; 2. hear appeals against decisions made by the planning authority with respect to physical and land use development plans in the county; 3. advise the County Executive Committee Member on broad physical and land use planning policies, strategies and standards; and 4. hear appeals with respect to enforcement notices. The petitioner argues that the Respondent is the one supposed to make applications to the planning authority. In the instant case they did not make any application and when the Petitioner complained about the Respondent's impugned activities, an enforcement notice was issued to the Respondent. It is for the respondent to appeal that decision of issuing an enforcement notice as the petitioner's role was just to make a complaint. In the meantime, the Petitioner can only seek redress in this forum for infringement of her rights to a clean and healthy environment. The respondent further argues that it is indeed true that the Petitioner lodged a complaint with NEMA. The complaint was dealt with by NEMA and the Authority issued an enforcement Notice. The Complaints by the Petitioner to the County and to NEMA, the Preliminary objection fails since those assertions become a factual assertion and are no longer a point of law in the strict sense as the court would have to refer and peruse the said complaints. The respondent contends that a preliminary objection as established in the celebrated Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 case must be on a pure point of law. 'So far as I'm aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration." The petitioner therefore urges the court to dismiss the Preliminary Objection with costs. Analysis And Determination On the issue of Doctrine of exhaustion, this court finds that the jurisdiction to hear the petition lies squarely with this court as the issues raised of violation of property rights cannot be entertained by the County Physical and Land Use Planning Liaison Committee which has no power to determine the violation The Judiciary of 6/7 of rights and fundamental freedoms. The Supreme Court in the case of Abidha Nicholas v the Attorney General & 7 Others [2024]eKLR and which case mentioned their position in Kibos Distillers v Benson Adega and several other cases. At paragraph 104 held thus;- “ Having considered the above complaints, we reiterate our earlier finding in this judgment that the mandate and jurisdiction to determine these questions lie with the ELC under Articles 22, 23(3) and 162(2)(b) of the Constitution as read with Section 4(1) of the Environment and Land Act. We say so because neither the NET, EPRA nor EPT have the jurisdiction to determine alleged violations of the Constitution. That right to access the court for redress of alleged constitutional violations, should not be impeded or stied in a manner that frustrates the enforcement of fundamental rights and freedoms. We say this persuaded by the elegant reasoning in William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR where the High Court (Achode (as she then was), Nyamweya (as she then was), & Ogola, JJ) stated:“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. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.” It is the view of this court that the two decisions of the Supreme Court of Kenya resolve the issue as to whether the doctrine of exhaustion is applicable in this matter. I do finds that the same is not applicable and therefore the P.O fails on this point. On the 2nd point that there is that there is a pending matter and investigations before national environment management authority (NEMA). This issue requires demonstration by way of affidavit for the court to understand the dispute pending before NEMA. Moreover, this being a constitutional matter, it is this court that has jurisdiction to entertain the same and not NEMA. The upshot of the above is that the Preliminary objection has no basis and is dismissed with costs. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ANTONY O. OMBWAYO** Mombasa Environment and Land Court Environment and Land Court Date: 2026-08-07 12:54:50 The Judiciary of 7/7