Francis Mugarami Kamau, Christine Wambui Mwangi, Kim Mututi Matu, Annet Wanjiku Mburu, Isabel Achieng Olwenyo, Robert Oduor Otieno & Mathew Kimolo Nzuki (Suing on their behalf and on behalf of the residents and home owners of Migaa Integrated Golf Estate) v Sycamore Pine Limited, Home Africa Communities Ltd & Kiambu County Government; National Environment Management Authority & Migaa Golf Estate Residents Association (Interested Parties) [2021] KEELC 2724 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC PETITION NO. E 003 OF 2021

IN THE MATTER OF THE SUPREMACY OF THE CONSTITUTION UNDER ARTICLE 2 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE ENFORCEMENT OF ARTICLES 22, 23, 40, 42, 47, & 70 OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF SECTIONS 3, 58, 59,60, 61 OF THE ENVIRONMENTAL MANAGEMENT & COORDINATION ACT, 2013

AND

IN THE MATTER OF THE PHYSICAL AND LAND USE PLANNING ACT, 2019 AND THE ZONING POLICY MASTER PLAN OF THE GATED

MIGAA INTEGRATED GOLF ESTATE, KIAMBU

AND

IN THE MATTER OF THE PROPOSED CONSTRUCTION OF TWENTY EIGHT (28) BLOCKS COMPRISING 1959 LOW COST APARTMENTS IN THE PROPOSED SAMARA ESTATE’S AFFORDABLE HOUSING DEVELOPMENT ON UNIT NO. CC01 SITUATED ON L.R. NO. 29059 BY SYCAMORE PINE LIMITED WITHIN THE GATED HIGH END MIGAA INTEGRATED GOLF ESTATE

BETWEEN

FRANCIS MUGARAMI KAMAU...............................................................1ST PETITIONER

CHRISTINE WAMBUI MWANGI............................................................ 2ND PETITIONER

KIM MUTUTI MATU..................................................................................3RD PETITIONER

ANNET WANJIKU MBURU......................................................................4TH PETITIONER

ISABEL ACHIENG OLWENYO...............................................................5TH PETITIONER

ROBERT ODUOR OTIENO.....................................................................6TH PETITIONER

MATHEW KIMOLO NZUKI ....................................................................7TH PETITIONER

(Suing on their behalf and on behalf of the residents and home owners of Migaa Integrated Golf Estate)

VERSUS

SYCAMORE PINE LIMITED.................................................................1ST RESPONDENT

HOME AFRICA COMMUNITIES LTD................................................ 2ND RESPONDENT

KIAMBU COUNTY GOVERNMENT................................................... 3RD RESPONDENT

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY....1ST INTERESTED PARTY

MIGAA GOLF ESTATE RESIDENTS ASSOCIATION...............2ND INTERESTED PARTY

RULING

The Petitioners herein vide a Petition dated 18th May 2021, have sought for various orders against the Respondents among them a declaration that the Respondents have breached Articles 40and 42 of the Constitution, by allowing and/or carrying out unlawful construction on the property known as unit No.CC01,situated on LR No. 29059, within the Migaa Integrated Golf Estate, in Kiambu County.

Simultaneously, the Petitioners also filed a Notice of Motion application dated20th May 2021,and sought for Conservatory Orders, to restrain the 1st Respondent from constructing, selling, advertising for sale, and carrying out the illegal construction of 1959, low cost Apartments onLR No. 29059, within Migaa Integrated Golf Estate in Kiambu County, pending the hearing and determination of the Application and the Petition.

In the alternative, they sought for maintenance of status quo to the effect that no further construction on the subject property, pending the hearing and determination of this Application and Petition.

The Respondents filed Notices of Preliminary Objectionsand averred that this Court has no jurisdiction to hear and determine this matter.  That there are alternative disputes resolution mechanisms that the Petitioners failed to engage before coming to this Court.

The 2nd Interested Party Migaa Integrated Golf Estate Residents Association supported the issuance of Conservatory Orders.

On 9th June 2021, the parties argued on the issue of issuance of Conservatory Orders at this Preliminary stage.  The Petitioners averred that there is construction of 1959 low costs apartments on the suit property without development approvals or Environmental Impact Assessment (EIA).  That the said construction goes against the Master Plan of Migaa Integrated Golf Estate and is in breach of Article 42,of the Constitution which guarantee the Petitioners a clean environment.  That allowing the construction would change the substratum of the area and the case even before the application is heard and determined.

The Respondents opposed the issuance of Conservatory Orders on the ground that there arefinancial implications and the applicants have remedies at the Liaison Committeeof Kiambu Executive Committee.  That if the Petitioners succeed at the Liaison Committee stage, the Committee can even order for demolition of the said constructions.  That the Petitioners have jumped the gun.

The 2nd Interested Party argued in favour of grant of Conservatory Orders and submitted that the issue of financial implication is not sufficient to deny the issuance of Conservatory Orders herein.

The Court has considered the pleadings in general and the arguments for and against the issuance of Conservatory Orders.  It is not in doubt that the 1st Respondent has commenced construction of the alleged low cost apartments on the suit property.  The 3rd Respondent has confirmed that development approvals have not been issued yet and are in the process of being considered.  There is No evidence of Environmental Impact Assessment from the 1st Interested Party.

It is also evident that there is a question of Jurisdiction that has to be determined before the instant Notice of Motion dated 20th May 2021, can proceed for hearing.  The Petitioners have brought an issue touching on environmental degradation and breach of Article 42 of the Constitution on clean environment.

The Court finds that before the issue of Jurisdiction can be settled,  Status quo needs to be maintained, in the meantime.

Consequently, the Court allows the Notice of Motion Application dated 20th May 2021, in terms of Prayer No. (c), that is status quo to be maintained, with no further construction on the subject property pending the hearing and determination of the pending Preliminary Objection.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 14TH DAY OF JUNE 2021.

L. GACHERU

JUDGE

14/6/2021

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting Court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Agwara & Koech for the Petitioners

Mr. Kenneth Wilson holding brief for Mr. Musyoka for the 1st Respondent

Mr. Marete for 2nd Respondent

Mr. Sanaeti holding brief for M/s Mbugua for 3rd Respondent

Mr. Gitau for 2nd Interested Party

L. GACHERU

JUDGE

14/6/2021