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ELCAllowedPetition number not stated in the ruling (Application dated 26/08/2024)

Gakuru & 2 others (Suing on their Behalf and on Behalf of JWA Thika Sub-County) v County Government of Kiambu & another; National Land Commission & another (Interested Parties) (Petition E012 of 2024) [2025] KEELC 3970 (KLR)

Environment and Land Court
20 May 2025
4,078 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted the Boma Yangu housing project in Thika because the county held only one public meeting and produced no proper environmental assessment.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Thika in a constitutional petition by Jamofastar Welfare Association, an association of approximately 50,000 residents of estates surrounding land parcel Thika/Municipality Block 11/343 in Thika Sub-County, Kiambu County. The Petitioners challenged the commencement of the Boma Yangu/Bustani affordable housing project, contending there was no meaningful public participation and no Environmental Impact Assessment, and sought conservatory orders restraining all construction and related activities. The 1st Respondent (County Government of Kiambu), through its County Attorney, opposed, asserting the land was lawfully allocated, that a Memorandum of Understanding was signed with the Association in 2021, that meetings were held culminating in a meeting of 10/09/2023 at which tenants endorsed the project, and that all approvals including an EIA were obtained. The 2nd Interested Party, Chania Thika Residents Association, sought joinder. The Court framed two issues: the threshold for conservatory orders and joinder. Applying Gatirau Peter Munya, Wilson Kaberia Njunja and Martin Nyaga Wambua, and considering Giella v Cassman Brown, the Court found a prima facie case: the 1st Respondent produced no EIA documentation and only evidence of one public meeting, which the Court held was inadequate participation and vitiated the process. Public interest favoured conservation given irreversible environmental risks. The Court allowed both motions, issuing conservatory orders restraining all activities on the suit parcel pending determination of the petition, joining the Chania Thika Residents Association as 2nd Interested Party, with costs of both applications in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petitioners have met the threshold for grant of conservatory orders
  2. 2.Whether the 2nd Interested Parties should be considered for joinder

Key legal issues

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01

Whether the Petitioners met the threshold for conservatory orders

Holding

Yes. The Petitioners established a prima facie case with probability of success, real risk of the petition being rendered nugatory, and public interest favours conservation given the flawed EIA/public participation process.

Reasoning

The Court applied the Munya and Kaberia Njunja thresholds. Although the 1st Respondent claimed consultation and an EIA, it produced only a notice dated 4/09/2023 and minutes of one meeting of 10/09/2023 and no EIA documentation. The environmental and property risks to residents of the surrounding estates required discussion and mitigation. The EIA process, if any, was flawed, so a NEMA licence would be saddled with irregularities. Environmental damage is irreversible, engaging the precautionary principle.

p. 8
02

Whether there was adequate public participation and environmental impact assessment

Holding

No. The single meeting of 10/09/2023 was inadequate; the statutory publication and objection procedures under EMCA and the Regulations were not followed, vitiated the process.

Reasoning

The Court suo motu reviewed the EIA process under EMCA and the Regulations made thereunder. It found the process undertaken fell short of what the law and the mandatory constitutional requirement of public participation expect for a project of this magnitude. There was no publication of the project as required by the Regulations, so the Petitioners never got the opportunity to lodge objections, and they were not accorded an adequate hearing.

p. 8
03

Whether the 2nd Interested Party should be joined

Holding

Yes. The joinder application was largely unopposed and the nexus of the Association to the petition was evident.

Reasoning

The only response to the joinder application dated 18/11/2024 was the Petitioners' submissions opposing joinder, which do not amount to a pleading; the application was therefore treated as unopposed. The Court found a nexus between the Chania Thika Residents Association and the petition and allowed the joinder without belabouring the point.

p. 9

Legal principles established

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  • Conservatory orders should be granted on the inherent merit of a case, bearing in mind public interest, constitutional values and proportionate magnitudes.
  • An applicant for conservatory orders must show a prima facie case with likelihood of success, real danger of prejudice, that the petition would be rendered nugatory, and public interest must be considered.
  • Real danger must be imminent, evident, true and actual, not fictitious or remote.
  • Public participation is the single most critical requirement in public projects beneficial to the citizenry; a single meeting inadequate in the circumstances vitiated the process.

Court orders

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  1. 1.A conservatory order issued restraining the Respondents by themselves or any other person, body or organ acting under their authority from financing, proceeding with, excavating, erecting buildings or undertaking any other activities on all that land parcel known as Thika Municipality Block 11/343 under the Boma Yangu housing project within Thika Sub-County, Kiambu County pending the hearing and determination of this petition
  2. 2.Chania Thika Residents Association, through John Kagira Nage (Chairman), Ann Kagure Irari (Secretary) & Gregory Wambaki (Treasurer) joined as the 2nd Interested Party in the Petition
  3. 3.Costs of the two Applications shall be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23, 70 and 165(2)(b) of the Constitution of Kenya, 2010 (constitutional petition under the Environment and Land Court's jurisdiction)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a. That pending the hearing and determination of this Application inter-parties, a conservatory order be issued restraining the Respondents by themselves or any other person, body or organ acting under their authority au financing, proceeding with, excavating, erecting buildings or undertaking any other activities on all that land parcel known as Thika Municipality Block 11/343 under the Boma Yangu housing project within Thika Sub-County, Kiambu County pending the hearing and determination of this petition.
p. 9Final orders - conservatory order
b. That; Chania Thika Residents Association, through John Kagira Nage (Chairman), Ann Kagure Irari (Secretary) & Gregory Wambaki (Treasurer) be joined as the 2nd Interested Party in this Petition.
p. 3Final orders - joinder
c. That the costs of the two Applications shall be in the cause.
p. 9Final orders - costs
I am satisfied that the Applicants have established they have a prima facie case with a probability of success. The process of conducting the Environmental Impact Assessment study was flawed and therefore the NEMA if issued is saddled with irregularities yet approving the proposed project cannot be justified.
p. 8Prima facie case and flawed EIA
Public participation is the single most critical requirement in public projects which are beneficial to the citizenry.
p. 8Public participation

Issues in the judgment

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minor

The joinder application is referred to inconsistently: directions were given on an application 'dated 18/04/2024' whereas the application throughout the ruling is dated 18/11/2024.

minor

The list of constitutional rights said to be breached contains duplicated and irregularly sequenced article numbers.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gakuru & 2 others (Suing on their Behalf and on Behalf of JWA Thika Sub-County) v County Government of Kiambu & another; National Land Commission & another (Interested Parties) (Petition E012 of 2024) [2025] KEELC 3970 (KLR)", Case Analysis (2025). Petition number not stated in the ruling (Application dated 26/08/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3970/eng@2025-05-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.