Mbaazi Avenue Residents Association & 1 other v Metricon Home Nairobi Company Limited & 2 others
The bottom line
#Kenya's Court of Appeal allowed Metricon's 16-storey Mbaazi Avenue project to proceed, confirming residents' participation was adequate and the developer must still follow its EIA licence conditions.
What this practically means
#Executive summary
#Key legal issues
#Reliance on an unpleaded government policy
The ELC was entitled to rely on the Nairobi City County Development Control Policy, 2021 notwithstanding it was not pleaded, as it was an approved operational policy approved by the County Assembly on 10 February 2022; the draft 2023 policy could not be applied as it was still undergoing public participation.
The Court applied the Rawal exception for unpleaded issues and Maema on matters of law. A policy in operation is judicially noticeable under section 60 of the Evidence Act. The 2021 policy bore the Speaker's approval stamp ('NCCA APPROVED 10 FEB 2022'); the 2023 successor was still a draft undergoing public participation and could not substitute the 2021 policy. The finding that the suit property falls in Zone 4B with a 16-floor skyline was a finding of fact not shown to be plainly wrong.
Sufficiency of public participation and compliance with Regulation 22
Public participation was adequately undertaken at the two phases required by sections 59 and 60 of EMCA; NEMA's failure to hold a hearing under Regulation 22 was not fatal because the power is discretionary and substantial hearings were nonetheless conducted.
The Court endorsed Okoiti: participation requires reasonable opportunity to be heard and good-faith consideration of views, not acceptance of all views. MARA and Millennium Gardens conceded attending meetings and completing questionnaires. Regulation 22 uses 'may', making a NEMA-convened hearing discretionary; where a hearing would serve no useful purpose it need not be held, and Metricon's comprehensive engagement informed the EIA Licence conditions.
The precautionary principle and the right to a clean and healthy environment
The precautionary principle could not be invoked because no threats of serious or irreversible damage were established; the burden on the proponent was discharged through the EIA process and licence, and compliance remains subject to enforcement under EMCA.
The Court agreed with the Odando statement of the principle but held that a case must be made out justifying invocation, requiring threats of serious or irreversible damage without demanding full scientific certainty. The learned Judge found no viable threat established; the EIA licence conditions (geotechnical investigation, air quality, traffic management, water harvesting) addressed the grievances and remain enforceable, with due recourse to the appellants under EMCA for any contravention.
First appellate mandate on findings of fact
As a first appeal, the Court reappraised the evidence but would not disturb the trial judge's finding that the property falls in Zone 4B absent demonstration of material inconsistencies or that the judge went plainly wrong.
Relying on Peters v Sunday Post and Watt v Thomas, the Court reiterated that an appellate court differs from findings of fact only with caution. The appellants' contention of 'translocation' to Zone 4B did not demonstrate the finding was affected by material inconsistencies, that weight was misappreciated, or that the judge was plainly wrong.
Deference to specialised statutory bodies
Courts should not substitute their views for determinations of specialised authorities such as NEMA within their technical expertise.
Adopting mutatis mutandis the Supreme Court of India's opinion in Maharashtra State Board, the Court held that where specialised forums are established by law, courts ought not to readily impose their own views. NEMA's determination, made after considering objections and responses, was expert-based and attracted deference.
Legal principles established
#- Courts cannot base decisions on unpleaded issues, but operational government policies coming to the court's knowledge need not be pleaded to be applied
- Effective public participation does not require acceptance of all views; a reasonable opportunity to present views and their good-faith consideration suffices
- NEMA's power to hold a public hearing under Regulation 22 is discretionary, not mandatory
- The precautionary principle is invoked only upon a showing of threats of serious or irreversible environmental damage; an EIA licence is not a blank cheque and compliance remains enforceable under EMCA
- Courts should defer to specialised statutory bodies such as NEMA in their areas of technical expertise and not substitute their own views
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
- 3.Nairobi City County directed to ensure the Nairobi County Physical and Land Use Development Plan or its equivalent is in place within 12 months from the date of delivery of the decision
- 4.At the lapse of the 12-month period, MARA and Millennium Gardens shall be at liberty to move the ELC for appropriate orders towards compliance with the direction
- 5.The conservatory orders granted by the Court on 4th April 2025 are discharged
- On appeal from
- Environment and Land Court
- ELC Petition No. E121 of 2023
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction (reappraisal of evidence and law from the Environment and Land Court); relief granted under Article 23 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kassam & 12 others v Exotic Real Estates Limited & 12 others (Environment and Planning Petition E002 of 2024) [2026] KEELC 3221 (KLR)[2026] KEELC 3221 (KLR)28 May 2026
Cite this brief
#Cite this brief
Caselaw, "Mbaazi Avenue Residents Association & 1 other v Metricon Home Nairobi Company Limited & 2 others", Case Analysis (2025). Civil Appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1593/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.