https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3608

Temple Point Resort Ltd v Kangwana & 3 others (Environment and Land Petition E001 of 2025) [2026] KEELC 3608 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3608 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Petition E001 of 2025 FM Njoroge, J June 11, 2026 Between Temple Point Resort Limited Petitioner and Jared Kangwana 1st Respondent National Environment Management Authority (NEMA) 2nd Respondent County Government of Kilifi 3rd Respondent Kenya Wildlife Service (KWS) 4th Respondent Ruling 1.This is a ruling on a preliminary objection dated 27/11/25 raised by the 1st respondent against the main petition and the Notice of Motion dated 28th April, 2025 which is seeking the following orders:1.That the application be certified urgent and be given a soon date for inter parte hearing;2.That pending the hearing and determination of the Petition, the Honourable Court be pleased to issue an order compelling the 1st Respondent to furnish the Petitioner with applications and approvals, if any, made to or granted by the 2nd, 3rd and 4th Respondents approving the construction of the permanent structure erected on property LR No. Plot Gede/Dabaso/807 comprising main house, swimming pool, perimeter wall and the summer hut;3.That pending the hearing and determination of the petition, the Honourable Court be pleased to issue an order directing the Director of Surveys (Kilifi County) or such relevant body to resurvey the property LR No. Plot No. Gede/Dabaso/807 to establish the boundaries of the said property and file in court a report on the location of (i) main house, (ii) swimming pool, (iii) perimeter wall and (iv) summer hut Respondent’s vis a vis the boundaries of the property LR No. Plot Gede/Dabaso/807;4.That pending the hearing and determination of the petition, the Honourable Court be pleased to issue an order directing the 2nd Respondent to visit the 1st Respondent’s property and evaluate the swimming pool built by the 1st Respondent to determine whether it has an inbuilt independent drainage system or it is built to washback/drain the Mida Creek and file a report in court;5.That the costs of this application be provided for. 2.The application is supported by the Supporting Affidavit of Jan Langer and on the following grounds:a.The 1st Respondent is the registered owner of property known as LR Plot No. Gede/Dabaso/807 situated in Watamu, within Kilifi County;b.The 1st Respondent has constructed his property (i) Permanent house (ii) swimming pool and (iii) perimeter wall, which amenities are believed to have encroached on the adjacent riparian land and endangered mangrove vegetation;c.The swimming pool constructed by the 1st Respondent has no independent drainage system and it drains waste water full of chemicals to the Mida Greeks;d.The 1st Respondent has also constructed a permanent structure known as summer hut in the riparian land adjacent to his property in violation of the law;e.There is no record of application by the 1st Respondent of approvals from 2nd, 3rd or 4th Respondents in respect of the impugned permanent house, swimming pool, perimeter wall or summer hut and it is more likely that the impugned structures erected on property LR NO Gede/Dabaso/807 were constructed in violation of the laws of Kenya;f.There is a riparian zone separating the 1st Respondent’s property that contains the endangered mangrove vegetation and other marine biodiversity around the Mida Creek and the said riparian land is a public land to be held by the 3rd Respondent in trust for the public by virtue of Article 62 (1) of the Constitution of Kenya;g.The impugned development on the riparian land is being encouraged by the 2nd and 3rd Respondents who have granted approvals to the 1st Respondent without the support of a valid EIA Report on the development of multi storey residential building or carrying out public participation as required by law.h.The construction being carried out is a threat to the ecosystem of the riparian zone and a threat to the biodiversity of the plant and vertebrate species in the area;i.The construction is also a threat to the Petitioner’s and the larger public’s right to clean and healthy environment and is inconsistent with the principles of sustainable management of land resources and violates the Constitution and other written laws of Kenya;j.The 2nd, 3rd and 4th Respondents have failed to carry out their oversight functions and thereby encouraged the impugned illegal development by the 1st Respondent;k.The Petition and application herein raise serious issues relating to the threat to the right to a clean and healthy environment, enforcement of the state obligations under Article 69 of the Constitution, allocation and use of riparian land which matters fall within the jurisdiction of this court;l.If the orders sought are not granted, the Petitioner is apprehensive that the 1st Respondent’s impunity shall set a bad precedence and encourage unconstitutional appropriation of public land and development that violates the constitutional right to a clean and healthy environment;m.The Petitioner has taken out this application and petition in the public interest and the orders sought seek to advance interest of justice and to protect and preserve the environment and the Laws of Kenya. 3.Before the application could be heard on its merits the afore mentioned preliminary objection was lodged by the 1st respondent in the following terms:a.That the petitioner has not utilized all the available dispute resolution mechanisms;b.The petition is vexatious scandalous and an abuse of the court process. 4.The 1st respondent in his submission asserted that Article 159(2) of the constitution mandates the court to be guided by the principle of alternative dispute resolution. He cited the cases of Geoffrey Muthiga Kabiru & 2 Others V Samuel Munga Henry & 1756 Others 2025 eKLR And William Odhiambo Ramogi & Others V Attorney General & 4 Others Muslim for Human Rights & 2 Others (IPs) 2020 KEHC 10266 (KLR) as well as ELCPET E 010/2024 Jared B. Kangwana & Others Vs Temple Point Resort Limited as emphasizing that parties must utilize and exhaust those channels prior to approaching court. 5.Counsel urged that the issues raised in the petition ought to have been addressed through:a.The National Environment Complaints Committee under Section 31 and 32 of the EMCA;b.The County Physical Planning and Land Use Planning Committee under Section 78 of PLUPA.The 3rd respondent supported the preliminary objection.The 4th respondent declined to participate in the preliminary objection. 6.The petitioner filed submissions dated 16th February 2026 in opposition to the PO stating that the P.O. does not meet the threshold of a P.O. as set out in the cases of Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd 1969 EA 696 and Oraro vs Mbaja 2005 eKLR. He urged that the court has jurisdiction in this matter; that none of the reliefs sought in the petition fall under the jurisdiction of the National Environment Tribunal or the Liaison Committee; that the issue as to whether land is riparian land or not, and all the other reliefs that are predicated on that issue, can only be adjudicated by this court. 7.Citing William Odhiambo Ramogi & Others V Attorney General & 4 Others Muslim for Human Rights & 2 Others (IPs) 2020 KEHC 10266 (KLR) counsel submitted that the doctrine of exhaustion is not absolute, and that there are some exceptions; that the current petition raises serious constitutional issues relating to the right to a clean and healthy environment and the enforcement of environmental obligations under the Constitution of Kenya 2010, and Article 162(2)(b) of the constitution and Section 13 of the Environment and Land Court Act vest this court with jurisdiction to hear and determine it; that the said matters can not be remedied through administrative bodies; citing the case of Friends Of Lake Turkana Trust, Vs Attorney General And 2 Others 2014 KEELC 511 KLR counsel stated that in any case Articles 22 and 70 of the constitution permit direct access to this court. That NET has jurisdiction limited to appeals from NEMA’s decisions and the Liaison Committee to Planning authority appeals; those decisions abound where courts have held that where the reliefs sought transcend the mandate of administrative bodies, the doctrine of exhaustion does not apply. Analysis And Determination. 8.In Republic v Independent Electoral and Boundaries Commission (I.E.B.C.) Ex parte National Super Alliance (NASA) Kenya, Al Ghurair Printing and Publishing LLC, Attorney General, Jubilee Party, Ekuru Aukot & Third-Party Alliance, Samuel Waweru & Stephen Owoko Oganga [2017] KEHC 4663 (KLR), the court stated as follows:41.The issue of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks judicial review of that action without pursuing available remedies before the agency itself. The Court must decide whether to review the agency's action or to remit the case to the agency, permitting judicial review only when all available administrative proceedings fail to produce a satisfactory resolution.42.This doctrine is now of esteemed juridical lineage in Kenya. It was perhaps most felicitously stated by the Court of Appeal in Speaker of National Assembly v Karume [1992] KLR 21 in the following oft-repeated words:“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.” 9.In Abidha Nicholas V Attorney General & Others 2023 eKLR, it was stated as follows:40.We state categorically and without equivocation that the multifaceted nature of any petition, or suit for that matter, is not a basis to find a court to arrogate jurisdiction to itself. This court already made a finding on this issue and castigated such reasoning in Kibos Distillers Limited & 4 Others -vs- Benson Ambuti Adega & 3 Others [2020] eKLR; In the instant matter, the learned judge citing the case of Ken Kasinga -vs- Daniel Kiplagat Kirui & 5 others, [2015] eKLR, and other decisions from courts of coordinate jurisdiction held that where a claim in a petition or suit is multifaceted, a court can have jurisdiction despite existence of another forum, institution or agency that has been legislatively conferred with jurisdiction to determine the matter. With due respect, this is a wrong exposition of law. Such a reasoning implies that jurisdiction may be conferred through the art and craft of drafting of pleadings - that all that a litigant need to do is to draft pleadings such that claims are raised in a multifaceted way and thereby oust the jurisdiction of any specialized tribunal or agency. This promotes forum shopping.” 10.This court is also mindful of its own dicta in Valentini v Farid & 3 others (Environment & Land Petition E005 of 2024) [2025] KEELC 253 (KLR) (30 January 2025) (Ruling) Neutral citation: [2025] KEELC 253 (KLR) as follows:54.It is also clear from the framing of the provisions of Article 70(1) that a petition alleging denial, violation infringement or threat of infringement of environmental rights under Article 42 may be filed in addition to any other legal remedies that are available in respect to the same matter. This is vital because it implies that a constitutional petition based on the same set of facts as an action before another forum may exist parallel to that other action in that other forum; that as long as the constitutional petition confines itself to matters of violation or threatened violation or denial of rights, it matters not whether the petitioner is during the pendency of the petition, prosecuting an ordinary cause of action based on the same facts before another forum on the same set of facts. That other cause of action must be deemed to be different and the two litigations should keep to their lane on the highway to eventual justice. The rationale for the provisions in Articles 42, 69 and 70 is clearly that the other forum not seized of constitutional jurisdiction shall determine the ordinary legal issues while this court determines the constitutional issues.55.The totality of the import of the foregoing constitutional provisions spontaneously deal a serious blow to any prospects of having an entire constitutional petition struck out for violation of the exhaustion doctrine. They also mandate a court to jealous and eternal vigilance against violation or threat of violation of constitutional rights and call on the court to decline to defer to any distractions that may, under the aegis of the exhaustion doctrine or any other defence in the nature of a procedural defect, occasion the court a loss of focus on the constitutional issues already raised before it.” 11.In the present case, this court has considered the prayers in the main petition. It is correct as stated by the petitioner that the first prayer is for a declaration that all that land lying between plot no Gede/Dabaso/807 and the shores of the Indian ocean is riparian zone and public land by virtue of article 62(2)(1) of the constitution and that the prayers that follow it are predicated on it. 11.The petitioner’s main concern in the main petition is that the 1st respondent’s house and swimming pool are so closely situate to the Indian ocean that the petitioner believes that they have been built on riparian land and/or outside the boundaries of Gede/Dabaso/807. 12.The issue of propriety of licensing of the 1st respondent’s developments by those authorities, if any was undertaken by them, may emerge later after it is established whether or not the 1st respondent has violated the provisions of Article 62(2)(1). 13.The primary basis for the petition is therefore not that the licences have been issued by the relevant authorities such as NEMA or the County Government, though that issue will still come up in the proceedings, but that the 1st respondent’s structures are likely to be located on a riparian zone. It is thus clear that the petition before this court is not either a multifaceted petition or one that purely addresses matters within the jurisdiction of the organizations mentioned by the 1st respondent so as to warrant the invocation of the exhaustion doctrine, and the referring of the dispute at hand to them for resolution at an original jurisdiction level; also, it is within the mandate of this court and not the NET and the County Physical Planning Liaison Committee to issue such a declaration. Consequently, this court finds that the exhaustion doctrine does not apply in the present case. 14The preliminary objection dated 27/11/2025 is thus unmerited and it is hereby dismissed with costs. 15.Parties shall file and serve submissions on each other regarding the Notice of Motion dated 28/4/2025, the applicant within 7 days from the date of this order and the respondents within 7 days from the date of service and the ruling thereon will be delivered on 13th October 2026. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 11TH JUNE 2026.MWANGI NJOROGEJUDGE, ELC MALINDI.