Koome Mwambia, Anthony Wahome & Permond Malhorta (Suing on their own behalf and on behalf of Kunde Road Residents’ Welfare Association) v Deshun Properties Company Limited, National Land Commission, Attorney General, National Environmental Management Authority & Nairobi City Council [2014] KEHC 8633 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT AND LAND COURT

ELC PETITION NO. 1433 OF 2013

IN THE MATTER OF ARTICLES 22(1) & (2) (B) (C) AND 70 OF THE CONSTITUTION OF KENYA

AND

IN THE MATTR OF THE LAND ACT, 2012

AND

IN THE MATTER OF THE LAND ACT, 2012

AND

IN THE MATTER OF THE LAND REGISTRATION ACT, 2012

AND

IN THE MATTER OF THE PHYSICAL PLANNING ACT, CAP 286 OF THE LAWS OF KENYA

AND

IN THE MATTER OF THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT, 1999

AND

IN THE MATTER OF CLAIMS OF CONTRAVENTION OF THE CONSTITUTION AND VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 19, 20, 21, 23(1) & (3), 24, 27, 40, 42, 60, 65, 66(1) AND 69 OF THE CONSTITUTION OF KENYA

BETWEEN

KOOME MWAMBIA

ANTHONY WAHOME

PERMOND MALHORTA(Suing on their own behalf and on behalf of

KUNDE ROAD RESIDENTS’ WELFARE ASSOCIATION).........................................PETITIONERS

VERSUS

DESHUN PROPERTIES COMPANY LIMITED...................................................1ST RESPONDENT

NATIONAL LAND COMMISSION......................................................................2ND RESPONDENT

NAIROBI CITY COUNCIL.......................................................................................3RD DEFENDANT

NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY........................4TH RESPONDENT

HON. ATTORNEY GENERAL.............................................................................5TH RESPONDENT

JUDGMENT

The Petition herein dated 25/11/2013 is filed under Rules 3, 4(1), 8 and 10 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. It is supported by an affidavit sworn by Koome Mwambia, a resident and committee member of Kunde Road Residents Welfare Association (hereinafter “the Association”). The Petitioners pray for orders that:

A declaration that the indenture of conveyance dated 9/10/2013, in so far as it vests in the 1st Respondent a freehold tenure being an estate in fee simple over LR. No. 330/476 (Original No.330/38/26)is illegal and contravenes the provisions of Article 65 (1) of the Constitution of Kenya, 2010.

An order setting aside the transfer to the 1st Respondent and title to LR No.330/476(Original No.330/38/26).

An order of permanent injunction restraining the 1st Respondent, by itself, its directors, servants, agents or otherwise howsoever from cutting trees, digging, excavating or in any way interfering with the topography on LR. No. 330/476 save as in accordance with the new law.

An order of permanent injunction restraining the 1st Respondent by itself, its directors, servants, agents or otherwise whosever, from erecting, building or constructing 82 flats or any number of flats on LR No 330/476.

An order of a mandatory injunction to issue directing the 1st Respondent to restore the building on LR. No. 330/476 to its original condition within 60 days of the order of court at its costs.

An order directing the 2nd Respondent to enforce the provisions of the constitution in respect to the transfer to the 1st Respondent and title to LR. No. 330/476.

An order directing the 2nd and 5th Respondents to enforce the provisions of the constitution in respect to the transfer to the 1st Respondent and title to LR No.330/476.

An order directing the 3rd Respondent to enforce the provisions of the Physical Planning Act, Cap 286 of the laws of Kenya and the constitution in respect to title LR No.330/476.

An order directing the 4th Respondent to enforce the provisions of the Environmental Management and Co-ordination Act, 1999 in respect to LR No. 330/476.

An order directing the 3rd and 4th Respondent to uphold and enforce the provisions of Articles 40 and 42 of the Constitution and protect the petitioners’ fundamental rights and the rights of the Kunde Road Residents Association in respect of any development along Kunde Road and specifically to LR No 330/476.

A declaration that the respondents’ actions and/or inactions infracted the petitioners’ exercise and/or enjoyment of their rights to property, clean and healthy environment.

An award of general damages against the 1st Respondent for breach of the petitioners’ fundamental rights and the Constitution.

The Court be leased to award the petitioner exemplary damages against the 1st Respondent for acting contrary to the Constitution and in breach of the petitioners fundamental rights.

The costs consent upon this petition be borne by the Respondents in any event on indemnity basis.

The Honourable Court do make any such other or further orders as it may deem just and expedient in the circumstances in enforcing violation of fundamental rights of the petitioners.

The Petitioners are members of the association and registered proprietors of LR. Nos. 330/643, 330/448 and 330/647 situate along Kunde Road. The Petitioners aver that the 1st Respondent acquired an estate in Fee Simple in LR. No. 330/476 (hereinafter “the property”) from Jane Robinson by an indenture of conveyance dated 9/10/2013 and thus as a registered owner, the 1st Respondent acquired a freehold tenure enjoying all rights and privileges thereto in terms of Section 24(a) of the Land Registration Act, 2012. It is the Petitioners’ averment that at the time the 1st Respondent acquired the property, it had two subscribers being Chinese citizens namely Yang Deqing holding 980 shares and Chen Xuming holding 20 shares. Consequently, pursuant to Article 65(1) & (3) of the Constitution, the 1st Respondent lacked capacity to acquire a freehold tenure of the property and thereby that that the said transaction was unconstitutional, illegal, void and thus incapable of conferring freehold proprietary rights in the 1st Respondent.

It is also averred by the Petitioners that the zoning regulations under Section 56 of the Urban Areas and Cities Act, 2011 under zone 4, all the properties and developments along Kunde Road and Thompson Estate be single dwelling units/flats upto a maximum of 4 storeys sitting on a minimum acreage of 0. 05 Ha. It is averred that in line with conserving the unique features of all the properties, the association developed a policy for all the members to reserve the place for single dwelling units only. It is the Petitioner’s claim that the 1st Respondent without obtaining any development approval from the 3rd Respondent or undertaking an environmental impact assessment (EIA) study and obtaining the EIA license from the 4th Respondent began demolishing the single unit building with a view of constructing a tower containing 82 flats thereon in breach of Sections 30(1), 32, 36 of the Physical Planning Act and Section 58 of the Environmental Management and Co-ordination Act, 1999. The Petitioners maintain that the demolition and intended construction has caused and continues to cause the Petitioners and the environment substantial loss, to wit: Substantial devaluation of the Petitioner’s property; felling of trees and destruction of vegetation and the unique features of Kunde Road establishments and its environment; Interference with the tranquility and quality of life enjoyed by the residents; Increased air pollution; Increased noise pollution; Increased solid waste, oil leaks and other polluting agents and strain on waste management; Increase in pollution and the number of residents from the current 69 to over 200; Increased demand for water which will further strain the extant water supply which is in crisis and only available on Thursdays; Increased traffic congestion and hazardous parking; Increased demand for electricity; and Increased risks and further exposure to security threats due to increased populations.

The Petitioners contend that the Respondents abdicated their duties by, the 2nd Respondent condoning the registration of the Indenture of Conveyance dated 9/10/2013 and the 5th Respondent for failing to advice the Government on the dictates of Article 65 of the Constitution, in so far as the dictates of the registration of rights and interests in freehold tenures is concerned. The 3rd Respondent pursuant to the Physical Planning Act is enjoined to take into account the density, health, physical, economic and social amenities, conveniences and other interests of the residents of a particular area in consideration of whether to grant any development permission. Further, that the 3rd Respondent is enjoined to ensure the conservation of the environment by demanding Applicants seeking development permission to undertake environmental impact assessment pursuant to the provisions of Section 58 of EMCA before any development that is likely to be injurious to the public is authorized. The Petitioners contend that the 1st Respondents activities are illegal, unconstitutional and continues to violate the Petitioner’s enjoyment of their rights to property, clean and healthy environment and the opportunity to participate in the process of authorizing the 1st Respondent’s development. They therefore urge the court to issue the declarations, orders and directions necessary to safeguard and prevent violation of the Constitution and their fundamental rights and freedoms.

Yang Deqing, the Director of the 1st Respondent swore a Replying Affidavit on 16/12/2013 wherein he deposed that the petition is misconceived in law and without proper basis for reasons that the entire proceedings are based on allegations that are purely speculative and therefore premature. The deponent refuted the allegations that the 1st Respondent had engaged in a manner that is discriminatory against the Petitioners, would constitute a violation to the right to a clean environment, and action that would deprive the Petitioners of their right to property. The deponent admitted that the 1st Respondent is the registered owner of the property having acquired the same for valuable consideration from Jane Robinson. He deposed that though the interest in the property conveyed to the 1st Respondent is freehold, by virtue of Article 65(2) of the Constitution, the indenture of conveyance dated 9/10/2013 registered in favour of the 1st Respondent is to be regarded as conferring to the 1st Respondent a 99 year leasehold interest in the said property and no more.

It was deposed that the 1st Respondent, subject to complying the relevant law in the Physical Planning regime, could not be directed by the Petitioners on how to deal with the property with regard to any intended development thereon. Nevertheless, the deponent stated, that the 1st Respondent has not commenced any developments on its property neither does it intend to construct a tower thereon. The deponent stated further that the demolition of the house on the property did not require an approval under Section 30 of the Physical Planning Act or a license under Section 58 of Environmental Management and Coordination Act (EMCA). Further that even where the law was applicable to demolition, the remedy for the alleged breach thereof is underpinned under Section 30 (2) of the Physical Planning Act and as such does not invite enforcement through a constitutional petition.

The Director deposed that the 1st Respondent acquired the property with the intention of developing two (2) bedroomed apartments after making enquiries including acquainting itself with the 3rd Respondent’s Policy Documents and Regulations on Development Zoning that it was possible and permissible to develop apartments thereon. The deponent referred the court to the zoning regulations marked “YD3” deposing that the developments allowed where the 1st Respondent’s property is situated are of residential nature and apartments are allowed on the sewered areas subject to a maximum of 4 storeys sitting on a minimum acreage of 0. 05 hectares. Therefore that the Petitioner’s depositions that the properties can only be ‘single dwelling units’ is an attempt to mislead this court. Further that the policy to reserve properties along Kunde Road said to be developed by the Petitioners is not binding and cannot contradict or be inconsistent with the physical planning policies and zoning regulations set out by the 3rd Respondent. The deponent also pointed out that there were other existing developments inform of multi-storey apartment blocks put up in the said area. The deponent further referred to the Environmental Audit Report provided by the Petitioners which expressly acknowledges that there are businesses and offices operating from some of the properties located along Kunde Road.

The deponent reiterated that the 1st Respondent had not commenced any developments thereon and that construction works would start once all the necessary approvals and licenses have been obtained from the 3rd and 4th Respondents as well as other approving authorities. Further that the proposed development plans have not been presented as there is a pending application for change of user for the property. Further ha the Environmental Impact Assessment (EIA) License in respect for the intended project cannot be presented for consideration by the 4th Respondent before the 3rd Respondent approves the design schemes and plans. The deponent referred the court to annexures marked “YD5” and ‘YD6” being an application for change of user and a notification to the public in the Standard dated 21/11/2013 inviting any objections or comments on the proposed change of user.

Sophie Mutemi, one of the Nairobi County Environment Officers, and an employee of the 4th Respondent swore a Replying Affidavit on 6/5/2014. It is her disposition that the Nairobi County NEMA office did receive a complaint from the Petitioners when after she and another officer one Siaji James visited the premises and issued an improvement notice to the 1st Respondent ordering them to stop further activities on the site. She deposed that following the issuance of the improvement notice, the NEMA Office has not received any further complaint. She deposed further that their office has not received an Environmental Impact Assessment Report from the 1st Respondent and neither has the NEMA office issued any license for any developments on the property. Consequently, therefore NEMA cannot be said to be abdicating its responsibility of protecting the environment.

The 2nd – 5th Respondents filed Grounds of Opposition dated 25/2/2014 wherein they averred that the Petitioners have not explored the alternative legal administrative avenues available to them to do reparation of their claims. Further that the petition is premature and premised on the speculation and alleged intended future conduct of the 1st Respondent. The Respondents also referred to Article 65(2) of the Constitution which allows non-citizens to own interest in land for a leasehold period of 99 years.

The Petition was canvassed by way of written submissions. Ochieng’ Onyango Kibet & Ohaga Advocates for the Petitioner filed submissions dated 3/4/2014. Counsel referred to Articles 70(1), 42, 162(2)(b) of the Constitution and Section 13 of the Environment Land Court in submission that this court has jurisdiction to determine the issues raised in the Petition. It was submitted that where state entities tasked with protecting the environment fail to act, act wrongly or a party fails to submit to the process designed under the various Acts to enable the entities assume jurisdiction and act, this court has a constitutional duty and an obligation to prevent, stop or discontinue any act or omissions that is harmful to the environment.

Counsel further submitted that the application was not premature or premised on speculations as alleged, on the basis first, the 1st Respondent acquired freehold interest in the suit property contrary to Article 65(1) of the Constitution, secondly, the single dwelling unit within the property was demolished without the necessary approvals and thirdly, the 1st Respondents intended developments on the property in violation of the laws. The Petitioners urged the court to allow the Petition to forthwith stop the development as the same is hazardous to the environment unless the 1st Respondent complies with the Constitution, the Physical planning Act and EMCA.

Macharia – Mwangi & Njeru Advocates for the 1st Respondent filed submissions dated 6/5/2014 wherein counsel submitted that the Petitioners’ averments as to the transfer of freehold interest in land in favour of the 1st Respondent was misconceived and bad in law in view of the provisions of Article 65(2) of the Constitution. Counsel submitted that the vendor who transferred freehold land to the 1st Respondent held the freehold tenure lawfully and passed a good title protected under the Constitution and the Land Act. Thus, the purchaser being a foreigner, the freehold is deemed to be a lease of 99 years. In urging the Court to dismiss the Petition, tt was submitted for the 1st Respondent that the Petitioners have no justiciable reason or cause to file these proceedings, in that: they have not demonstrated how the 2nd, 3rd and 4th Respondents have acted in such a manner as to abdicate their statutory duties; there is no evidence that the 1st Respondent commenced or continued to undertake the proposed development without the necessary approvals; and they have failed to show how they have been denied an opportunity to participate in the approval process or overruled unfairly by the regulatory bodies thus violating their constitutional rights.

E.N. Omoti & Company Advocates for the 3rd Respondent filed submissions dated 16/5/2014 wherein counsel submitted that the 3rd Respondent has powers to regulate, authorize and control the use and development of land and buildings falling within its jurisdiction in the interest of proper and orderly development of its area. Further that the 3rd Respondent has in its place planning policies and has established Development Control Zones to ensure proposed developments within its jurisdiction are carried out in accordance with its policies. It was submitted that the 3rd Respondent disapproved the 1st Respondent’s development plans submitted on 22/11/2013 for want of conforming to planning policies and therefore that no development can be undertaken until such approval is granted. Counsel submitted that the disapproval notwithstanding, the Petitioners had neither raised any complaint as to the legality of the process nor placed an objection to the application for change of user. Therefore, that, the Petitioners cannot be heard to state that they have been denied an opportunity to participate on the process of approval of the 1st Respondent’s development. Counsel submitted that even where the 3rd Respondent has approved the 1st Respondents development plans as presented, there is an entire regime of public law remedies available to the Petitioners to challenge any wrongful decision.

Counsel submitted that the concerns and fears raised in the Petition are matters that the 3rd Respondent would routinely keep in mind in processing any development permission within its jurisdiction without a court order. In that regard, there being no breach of the law, the Petitioners had no right to seek conservatory orders to stop a legal process that is being undertaken in accordance with the law. In urging the court to dismiss the Petition, Counsel submitted that there is no basis upon which the orders sought by the Petitioners can be granted as the 3rd Respondent has thus far exercised its powers which should not be curtailed by an order of the court based on mere suspicion and speculation.

Judith N. Kithinji Advocate for the 4th Respondent filed submissions dated 14/5/2014 wherein counsel submitted that the 4th Respondent acted upon the Petitioners’ complaint by issuing an improvement notice to the 1st Respondent after which it has not received any further complaint. It was submitted that it is evident from the Petition that the construction is yet to commence. Therefore, that, the 4th Respondent can only enforce the law if the project commences without an EIA report and not when a person expresses mere intention to undertake a project. Contrary to the Petitioner’s allegations, Counsel submitted that the process of awarding an EIA license provides for public participation pursuant to Regulation 17 of the Environment (Impact Assessment and Audit) Regulations, 2003. It provides that in conducting an EIA study, the proponent in conjunction with the Authority shall seek the view of the those affected by the project by posting posters in strategic public places in the vicinity of the site of the proposed project; and publishing a notice on the proposed project for two successive weeks in a newspapers that has nation wide circulation.

There were also submissions dated 16/5/2014 filed by Njoroge Allan Kamau, Litigation Counsel at the office of the Attorney General on behalf of the 2nd – 5th Respondents. Counsel submitted that the Petitioners’ prayers in so far as they are anchored in Article 65(1) of the Constitution is misconceived and an abuse of the court process as Article 65(2) thereto is clear on the issues raised. It was submitted that there was no law that barred the transfer of freehold interest to a non-citizen purchaser since the interest passed shall be regarded as leasehold pursuant to Article 65(2).

I have carefully read the petition, gone through the annexures, perused the submissions filed by all the parties and considered the authorities annexed thereto. In my view the following are the issues to be determined by this court: The 1st Respondent’s Acquisition of property as a freehold; Requisite permission to demolish; and the 1st Respondent’s intention of carrying out construction works.

Acquisition of property as a freehold

Article 65 of the Constitution - Landholding by non-citizens

(1)     A person who is not a citizen may hold land on the basis of leasehold tenure only, and any such lease, however granted, shall not exceed ninety-nine years.

(2)     If a provision of any agreement, deed, conveyance or document of whatever nature purports to confer on a person    who is not a citizen an interest in land greater than a ninety-nine year lease, the provision shall be regarded as conferring on the person a ninety-nine year leasehold interest, and no more.

(3)  For purposes of this Article—

(a)      A body corporate shall be regarded as a citizen only if the body corporate is wholly owned by one or more citizens; and

(b)     Property held in trust shall be regarded as being held by a citizen only if all of the beneficial interest of the trust is held        by persons who are citizens.

(4)     Parliament may enact legislation to make further provision for the operation of this Article.

It is not in contention that the 1st Respondent is a non-citizen. It is also very much apparent to the 1st Respondent that it has the right to acquire and own property as guaranteed under Article 40 of the Constitution but subject to Article 65 ad thus cannot own a freehold interest in land. It is also expressly stated in the constitution that non-citizens can hold land on the basis of leasehold tenure and for the avoidance of doubt where there is any document conferring interest in land greater than 99 years, the conveyance shall be regarded as to confer a 99 year leasehold interest and no more. The wording of Article 65(2), in view is a self-executing provision which requires no further formalities to be operational. Therefore, it is automatic conversion from a freehold to a leasehold interest.

Requisite permission to demolish

It is not in dispute that the 1st Respondent demolished the house upon acquisition of the property. The Petitioners aver that the demolition was done without the necessary permission from the council. It is their submission that Section 30 of the Physical Planning Act was not complied with. Further that demolition constitutes development within the meaning of “development” in the interpretation section of the said Act. I am in agreement that there is need to obtain permission before carrying out demolitions of buildings and therefore the necessity of complying with Section 30(1) of the Physical Planning Act. Subsection (2) makes it an offence to contravene subsection (1) and prescribes a penalty of either a fine or imprisonment. This provision gives a clear mechanism of how to address contraventions of statutory provisions. One therefore need not invoke the constitutional jurisdiction of this court. Suffice to say upon being served with an improvement notice from NEMA, the 1st Respondent ceased further demolition.

Intention of carrying out construction works

This is subject to seeking approvals from relevant authorities; an action the 1st Respondent confirms has every intention to undertake. The 1st Respondent annexed a copy of Page 58 of The Standard Newspaper of Thursday 21/11/2013 to demonstrate its intention to comply with the law in effecting its intention to develop. It was submitted for the 3rd Respondent that this application was disapproved for want of conforming to the planning policies. It is imperative to note that the purpose of publication in a newspaper with wide circulation is to provide an avenue to individuals and institutions to register objections or comments against applications for change of user. It is therefore evident that the Petitioners as were afforded an opportunity to give their views within 14 days of 21/11/2013 to the 1st Respondent’s proposed change of user from a single dwelling unit to multiple dwelling (town houses). The Petitioners do not aver, neither have they exhibited an objection lodged at the 3rd Respondent in respect of the 1st Respondent application for change of user. They cannot be heard to say that they were not given a chance to participate in the approval of 1st Respondent development plans.

Similarly, the 4th Respondent pointed this court to the provisions of Section 58 of EMCA which requires a proponent of a project to undertake an Impact Assessment in accordance with the Environmental (Impact Assessment and Audit) Regulations, 2003. Regulation 4 thereof states that, ‘No proponent shall implement a project’ (emphasis mine). The 1st Respondent is yet to actualize its intention of constructing town houses. The process did however commence with seeking approvals for change of user, which application is stated to have been rejected. An EIA license is yet to be issued since an Impact Assessment is yet to be undertaken by the 1st Respondent. It is also a requirement that the proponent will require to obtain the views of the views of persons who may be affected by the project. The means of obtaining information are set out under Regulation 7 (2) of the Environmental (Impact Assessment and Audit) Regulations, 2003. It requires that the project and its anticipated effects and benefits be publicized through posters placed on site; publication of the proposed project in a newspaper that has nation-wide circulation for two successive weeks, making announcements in both local and official languages in a radio with a nation-wide coverage at least once a week for two consecutive weeks. The proponent is also required to hold at least three public meetings with the affected parties. It is therefore inconceivable for the Petitioners to ponder whether they will have an opportunity to participate in the process of approval of the 1st Respondent’s development and/or activities guaranteed by Article 10 of the Constitution.

The Petitioners have submitted at great length on the jurisdiction of the court over on matters in relation to the environment and title, occupation and use of land. In deed this court agrees that is has original and unlimited jurisdiction on matters of land and environment. However, it has been stated constantly that where there exists sufficient and adequate Legal Avenue, a party ought not to trivialize the jurisdiction of the court pursuant to the Constitution. Indeed, such a party ought to seek redress under the relevant statutory provision otherwise such available statutory provisions would be rendered otiose. See Makhandia J. (as he then was) inPeter Ochara Anam & Others v Constituencies Development Fund Board &Others Kisii Petition No. 3 of 2010. There is a string of authorities that Courts must guard against the distortion or manipulation of the constitutional jurisdiction. To characterize everyday dispute as a constitutional violation, transforms the Constitution from a blueprint of fundamental freedoms and rights to a document for litigating everyday disputes. Its moral force is diminished. See George S Onyango OGW v Board of Directors of Numerical Machining Complex Limited Minister for Industrialization Attorney- General, Industrial Court (Nairobi) Petition No. 35 OF 2012and Uhuru Muigai Kenyatta v Nairobi Star Publications Limited Petition No. 187 OF 2012 [2013] eKLR

From the foregoing, it is my finding that the Petitioners are not deserving of the orders sought in the Petition for reasons that:

Prayers (a) (b) (f) (g)

The Constitution at Article 40 guarantees ownership of land in Kenya by any person. Granted, this provision is not absolute as it is subject to Article 65 thereof which restricts land to be held by non-citizens only as leasehold of a term of 99 years and no more. Article 65(2) of the Constitution, in my view, envisages a situation where non-citizens can enter into transactions for acquisition of interest in land that is freehold. Indeed there is no law that prohibits non-citizens from acquiring and owning freehold land, the Constitution however restricts that ownership to leasehold of a period of 99 years. It is therefore my finding that the transfer of the property in question, though the interest therein being freehold to the 1st Respondent being a non-citizen is not illegal as alleged. The bottom line is that the 1st Respondent has acquired 99 year leasehold interest.

Prayers (c) (d) (e) (h) (i) (j) (k)(o)

As found hereinabove, the 1st Respondent has a right to ownership of property only that it being a non-citizen, it can only hold a 99 year leasehold interest in land. As a registered owner of a property, the 1st Respondent acquires the rights of a proprietor secured under Section 25 of the Land Registration Act., the 1st Respondent has the right to deal with its property as it desires subject, off-course to obtaining of the necessary approvals of development plans from state entities including the 3rd and 4th Respondents. As stated hereinabove, there are clear procedures set out in the Physical Planning Act and EMCA on obtaining the necessary approvals. Most importantly, the said Acts provide mechanisms of how persons affected by proposed developments, and in this case, the Petitioners, can participate by giving their views, comments or objections. The 4th Respondent is yet to issue an Environmental Impact Assessment License since the assessment itself is yet to be undertaken. There is thus far no objection registered with the 3rd Respondent as to the 1st Respondent’s application for change of user, and submitted on behalf of the 3rd Respondent, the said application was rejected for want of conformity. It is my finding therefore that the Petitioners rights as to a clean and healthy environment have not been violated neither is there a threat as to violation of the said rights.

As regards costs of the Petition, Rule 26(1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013provides that the award of costs is at the discretion of the Court. The upshot of the court’s finding is that the Petitioners did put the cart before the horse, by filing this petition before the 1st Respondent actualized its intention but more importantly by failing to explore the well laid down procedures expressed in the Physical Planning Act and EMCA in a bid to participate in the 1st Respondents’ development plans. In that regard, the Petitioners shall bear the Respondents’ costs of the Petition.

Dated, signed and delivered this 10thday of November, 2014

L.N. GACHERU

JUDGE

In the Presence of:-

Mr. Ouma H/B for Mr. Ochieng’ Oduol - For the Petitioners

Mr. Mwangi            - For the 1st Respondent

Mr. Mwenesi H/B for.................................. - For the 3rd Respondents

N/A For the 2nd & 5th Respondents

N/A For the 4th Respondent

……………………………………..Court Clerk

L.N. GACHERU

JUDGE

10/11/2014

Mr. Ouma: I apply for a copy of the Judgment and typed copies of the proceedings

Court: Typed copies of the Judgment and proceedings to be supplied to all the parties herein upon payment of requisite fees.

10/11/2014

L.N. GACHERU

JUDGE