Analysis and Determination
30.Having considered the pleadings, the annexures and submissions, the issues for consideration are as follows:a.Whether this court has jurisdiction to determine this dispute.b.Whether this court should grant the injunctive orders sought by the Petitioner.
31.This court has noted that the Petitioners purported to file an Amended Notice of Motion dated 4th May 2023 without the leave of this court. This application was filed after the court had reserved its Ruling. It would be an abuse of court process and unjust for this court to consider the amended application because the Respondents and the Interested Parties have not had an opportunity to consider its contents and to respond to the same.
32.This court will therefore restrict itself to the pleadings that were procedurally filed by the parties, and served, which have been summarized above.
33.The factual matrix underlying this suit is that the Petitioners have brought this suit on behalf of the public and in their capacity as owners of properties on Taza Lane, City Park Drive, which properties, including the suit property, stretch to Mathare River.
34.The Petitioners’ claim is that the development on the suit property is being done illegally as the alleged authority to demolish the houses and cut down the trees on the suit property is not genuine and that the Respondents have granted permission for the construction and development of a massive residential building on the subject property, which property does not have an existing public sewer line next to or adjacent to it and that these activities are deleterious to the environment.
35.The 1st Respondent, together with the 1st-5th Interested Parties, have raised preliminary objections. Their objections are generally on two fronts: the first is that the Petition does not specify with particularity the alleged violations of constitutional rights, offending the principles set out in Anarita Karimi Njeru vs Republic  eKLR and secondly, that the Petitioner lodged a similar claim before the National Environment Tribunal, NET Appeal No. E24 of 2021 which is pending determination.
36.A preliminary objection constitutes a point of law, which, if argued, may dispose of the suit. This was defined in the case of Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696 as follows:
37.In the same case, Sir Charles Newbold, P. stated as follows:
38.The first objection raised is that the Petition offends the principles in Anarita Karimi Njeru vs Republic  eKLR as it fails to specify with particularity the alleged violations of constitutional rights. The principle established in the Anarita Kairimi Njeru case is that it is imperative for constitutional claims to be pleaded with precision. The court held as follows:
39.The Court of Appeal in Mumo Matemo vs Trusted Society of Human Rights Alliance  eKLR, expounded on the principle set out in the above case as follows:
40.In the Petition filed herein, the Petitioners claim is that the Respondents have failed to uphold and defend the national values and principles set out in Article 10 of the Constitution by failing to perform their constitutional and statutory duties, which has led to the violation, infringement of and threat to the Petitioners’ and the general public’s rights and freedoms by the Interested Parties.
41.The Petitioners particularly allege that the following rights have been infringed: their right to access information held by the state; their right to a clean and healthy environment under Article 42 and the right to fair administrative action under Article 47.
42.The Petitioners have stipulated the facts upon which the Petition is grounded. The facts and issues in the Petition are clear, including the allegedly violated and threatened rights and freedoms. This court is therefore satisfied that the principle of specificity and particularity in pleading constitutional provisions has been met by the Petitioners.
43.The second objection raised by the 1st Respondent and the Interested Parties is that this court lacks jurisdiction to determine this Petition by dint of Section 129 of EMCA. According to the Respondents, the Petitioners, or people acting under their directions, have filed a dispute identical to this one before the National Environment Tribunal.
44.The 1st Petitioner, in his Supplementary Affidavit, has averred that this objection has been overtaken by events as the NET Appeal No. E24 of 2021 was dismissed by a Ruling of the Tribunal dated 14th July 2022 and that the subsequent appeal dated 28th July 2022 in ELCA No. E056 of 2022, David Njeru Ndambiri vs Director General NEMA was withdrawn for reasons that NEMA, which had previously failed/ refused to monitor and conduct an environmental audit had monitored and conducted an environmental audit on the development being undertaken on L.R. 209/7549.
45.The Supreme Court in Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 Others  eKLR stated as follows on the issue of jurisdiction:
47.Section 129 of the Environmental Management and Coordination Act (EMCA) provides as follows:
48.The Appellate jurisdiction of this court over decisions made by the National Environment Tribunal is prescribed under Section 130 of EMCA as follows:
50.The court takes note that the NET Appeal No. E24 of 2021 was heard and determined by the National Environment Tribunal and the Appeal to that decision, which was pending before this court, was withdrawn. The Petitioner has averred that the issues before the Tribunal differ substantively with those in this case.
51.The Appeal to NET, which is annexed to the 1st Petitioner’s Affidavit as ‘DNN25’, was against the Director General, National Environment and Management Authority (NEMA), Bill Orenge Okemwa and the 2nd, 4th and 6th Interested Parties in this suit. As pleaded by the Petitioners, the subject matter of the appeal was NEMA’s failure to monitor, audit or suspend the development on L.R. No. 209/7549, City Park Drive Parklands, the suit land in this Petition.
52.On the other hand, the Petition herein is against the now defunct Nairobi Metropolitan Services (NMS), its Director General, Lt. Gen. Mohamed Badi, Stephen Gathuita Mwangi, the County Chief Officer of Land, Stephen Mwadime, Richard Mumo and Fredrick Ochanda, who are all Officers of the Physical and Land Use Department of NMS (Nairobi City County) and the Hon. Attorney General.
53.In addition, the Petitioner joined the seven (7) Interested Parties in the Petition, including the previous owner of the suit land, the 1st Interested Party, and the current owner, the 2nd Interested party.
54.While the NET Appeal and the Petition herein are generally concerned with the same matter, being the development on L.R. No. 209/7549, City Park Drive Parklands, the causes of action in the two suits are against different entities, raising different issues, which I have enumerated above.
55.This Petition is challenging the actions or inactions of the Nairobi Metropolitan Services, which at the time was undertaking the duties of land and development planning in Nairobi County. Under the Physical and Land Use Planning Act, Section 57 prescribes that any person carrying out a development within a county must be granted a development permission by the respective county executive committee member. This includes applications for change of user, extension of user, extension of lease, renewal of lease, subdivision and amalgamation.
56.The obligations of the then NMS, now the Nairobi City County, pertaining to approvals of developments in the county was not a subject in the suit that was before NET. That being so, it is evident that these two matters are distinct and consequently, this court has jurisdiction to hear and determine this Petition.
57.The Petitioners herein have sought for an injunction to compel the Respondents to stop and enforce any further development on the suit land pending the hearing and determination of the Petition. The Applicants are, in other words, seeking for a mandatory injunction.
58.The law on grant of interlocutory injunctions is found under Order 40 Rule 1 of the Civil Procedure Rules which provides as follows:
59.The Giella vs Cassman Brown (1973) EA 358 case sets out the essential conditions to be satisfied for a court to issue injunctive orders as follows:
60.In Mrao Ltd vs First American Bank of Kenya and 2 Others, (2003) KLR 125 which was cited with approval in Moses C. Muhia Njoroge & 2 Others vs Jane W Lesaloi and 5 Others, (2014) eKLR, the Court of Appeal defined a prima facie case as: -
61.In Nguruman Limited vs Jan Bonde Nielsen & 2 Others  eKLR the Court of Appeal restated the law as follows:
62.With regards to mandatory injunctions, courts have been reluctant to grant such orders at an interlocutory stage. However, courts have granted mandatory injunction where it is clear that a party against whom such an order is sought is on the wrong and where there are special circumstances. This was held in Shariff Abdi Hassan vs Nadhif Jama Adan  eKLR as follows:
63.In the case of Kenya Breweries Ltd & Another vs Washington O. Okeya  eKLR, the Court of Appeal stated as follows as regards mandatory injunctions.
64.In the case of Nation Media Group & 2 Others vs John Harun Mwau  eKLR, the Court of Appeal stated as follows:
65.The Petitioners’ claim is that the development on the suit property is being constructed illegally as the alleged authority to demolish the houses on the land to pave way for the development, and cutting down the trees on the suit property is not genuine; that the Respondents have granted the Petitioners permission for the construction and development of a massive residential building on the subject property, which property has no existing public sewer line next to or adjacent to it.
66.According to the Petitioners, these activities are deleterious to the environment, including waste flowing into the river. In addition, the Petitioners claim that the Respondents have breached their right to access information by failing or refusing to grant them access to information in respect to the subject matter property.
67.To buttress their arguments, the Petitioners have attached an Environmental Impact Assessment Project Report which was received by NEMA on 4th November 2020; an Environmental Impact Assessment Authority dated 23rd December 2020; a letter from the Nairobi City Water and Sewerage Company Limited dated 8th June 2021 approving a privately developed sewer for the suit land; a letter from the Nairobi Metropolitan Services dated 3rd November 2021 confirming that the Architectural Plan was approved by NMS on 15th October 2020 and a Notification of Approval of Development Permission issued on 18th September 2020.
68.In the letter dated 15th October 2020, NMS stated that the demolition permit No. UP/PCED/03113/4857/125 dated 15th October 2020 did not originate from it and that they did not issue the construction notice dated 15th October 2020. Further, the Petitioners have annexed orders from the National Construction Authority against the developments on the suit property suspending construction works due to non-compliance of the conditions contained in the letters dated 18th January 2020 and 5th January 2021.
69.On the claim for infringement of their right to information, the Petitioners have annexed letters dated 8th November 2021 and 14th October 2021 requesting information from the Nairobi Metropolitan Services and another letter dated 11th January 2022 addressed to the Director General, NMS.
70.The Petitioner has also annexed a letter from the Commission on Administrative Justice dated 27th May 2022, in which it stated that it visited the Director-General’s office on 23rd May 2022 and found that the architectural drawings shown to their representative were undated and were very different from those circulated, and the civil and architectural drawings were not available for perusal.
71.On the basis of the documents annexed on the 1st Petitioner’s Affidavit, and especially the letters by the then NMS, the National Construction Authority and the Commission on Administrative Justice, this court is satisfied that the Petitioners have established a prima facie case with a likelihood of success, especially on the validity of the demolition notice, and compliance with the requirements that had been stipulated by the National Construction Authority and other statutory bodies.
72.The next issue to consider is whether the Petitioners are likely to suffer irreparable injury which would not be compensated by an award for damages. In Halsbury’s Laws of England [Halsbury’s Laws of England, Third Edition, Volume 21, paragraph 739, page 352, it is stated that:-
73.The Petitioners in this instance have averred that they will suffer irreparable damage as the construction is going on unabated and the activities being undertaken are deleterious to the environment and infringing on their right and the public’s right to a clean and healthy environment, particularly due to the lack of connection to a public sewer, which may result in waste seeping into the Mathare river.
74.Indeed, these alleged harms cannot be quantified in monetary terms and would cause irreparable harm to the environment. That being the case, and being guided by the precautionary principle, it is the finding of this court that the Petitioners have established that irreparable harm not only to the Petitioners, but also to the environment, may be occasioned unless the orders of injunction are given pending the hearing of the Petition.
75.This court is also persuaded that special circumstances pervade the Petition herein, considering the magnitude of the impugned development, and the deleterious environmental concerns that may arise unless the mandatory order directed to the Respondents is issued.
76.There is a significant mushrooming of high-rise developments in Nairobi which are gaining permission swiftly from the County government and other agencies. These agencies do not sometime seem to take into account the impacts of approving multi-dwelling developments on the environment, particularly on waste management systems.
77.It is therefore essential for this court to determine this matter conclusively by interrogating the allegations raised by the Petitioners, particularly on whether the 50 + houses that were on the suit property were demolished with the permissions of the 1st Respondent, and if the waste management system has been put in place, amongst other measures required under the Physical and Land Use Planning Act.
78.Having found that the Petitioners have a prima facie case with chances of success, it is in the interests of justice that the subject matter of this suit be preserved pending final determination of the Petition.
79.The upshot of the foregoing is that this application is allowed as follows:a.That an order of temporary injunction be and is hereby given compelling the 1st, 2nd, 3rd, 4th 5th, 6th and 7th Respondents jointly and severally to stop and enforce any further development on L.R. No. 209/7549 City Park Drive, Parklands by the 1st, 2nd, 3rd, 4th and 5th Interested Parties, their agents and/or servants or any other person pending the hearing and determination of this Petition.b.Costs shall be in the Petition.