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ELCPartially AllowedPetition dated 15th September 2021· [2025] KEELC 6602 (KLR)

Irungu v Hayer Marquis Limited & 2 others (Environment and Land Petition E034 of 2021) [2025] KEELC 6602 (KLR)

Environment and Land Court
30 September 2025
11,441 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~46 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court declared a Nairobi developer's EIA licences unlawful for skipping public participation, and ordered a fresh Environmental Impact Assessment at the developer's own cost.

What this practically means

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Executive summary

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The Petitioner, registered proprietor of LR No. 209/16014 neighbouring a high-rise development on LR No. 209/9674, petitioned claiming that the EIA Licence No. NEMA/EIA/PSL/3309 (originally issued to Nirbau Gulshan Ventures Limited and later transferred to the 1st Respondent) and a subsequent variation licence were issued without an EIA Study Report or meaningful public participation, and that construction negligently damaged her house, polluted her indoor air and caused her depression, violating Articles 10, 26, 40 and 42. The Respondents countered that the Petition was a time-barred collateral attack on the licence which belonged before the National Environment Tribunal under Sections 129 and 130 of EMCA, and that the claims lacked evidentiary foundation. The court first held it possessed jurisdiction: although the Petition partly impugned the licence, its dominant character was the enforcement of constitutional environmental rights under Articles 42, 69 and 70, falling within the ELC's original jurisdiction under Section 13(4) of the ELC Act, guided by the Supreme Court's nuanced approach in Nicholus. On public participation, the court found the project high-risk under EMCA's Second Schedule, requiring Regulation 17 compliance, and held the 1st Respondent failed to demonstrate any EIA Study Report or participation; the licences were thus unprocedurally obtained and unlawful. The addition of two floors (28 units and two penthouses) constituted a substantial change requiring a fresh EIA. However, claims of negligence, property damage, air pollution and psychological harm failed for want of photographic, expert or medical evidence establishing a causal nexus, as did the Article 40 and Article 26 claims; the Petition against the 3rd Respondent was dismissed for disclosing no cause of action. Noting the development was complete, the court issued structural interdicts: a declaration of unlawfulness, a fresh EIA with meaningful public participation within 60 days at the 1st Respondent's cost, NEMA's decision to be filed within 120 days, with final suitability determination to follow.

Key legal issues

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01

Jurisdiction - exhaustion of statutory remedies under EMCA

Holding

The court has jurisdiction. Although challenges to an EIA licence ordinarily lie before the NET under Section 129 EMCA, the Petition is broader and raises constitutional rights under Articles 42, 69 and 70, which fall within the ELC's original jurisdiction under Section 13(4) of the ELC Act, guided by the Supreme Court's nuanced approach in Nicholus.

Reasoning

The court reviewed the exhaustion doctrine (Muthinja, Kibos Distillers, Nicholus) and held that where the Petition invokes constitutional environmental rights, the ELC has original jurisdiction. Following Nicholus and John Muthui, the court adopted a case-by-case approach and found the constitutional claims properly before it rather than confined to the Tribunal.

p. 13
02

Public participation before issuance of the EIA Licences

Holding

Public participation was inadequate; the licences were obtained unprocedurally. The project (over 100 housing units) was high-risk under the Second Schedule of EMCA, requiring an EIA Study Report and Regulation 17 public participation, none of which was demonstrated.

Reasoning

Regulation 17 prescribes posters, newspaper notices, radio announcements and at least three public meetings for high-risk projects. The respondents produced no evidence of an EIA Study Report or of notifying the affected community including the Petitioner. Following Mui Coal Basin and British American Tobacco, the burden lay on the proponent and was not discharged; a presumption of threat to the environment arose (Moffat Kamau).

p. 19
03

Whether the development breached/required variation of the EIA Licences

Holding

The addition of two floors comprising 28 units and two penthouses was a substantial change requiring a fresh EIA Study Report; the second licence of 28th October 2019 was not shown to have been preceded by a fresh EIA study or public participation.

Reasoning

Section 64(1) EMCA empowers NEMA to require a fresh EIA upon substantial change. Borrowing from Moffat Kamau, variation under Regulation 25(3) is not unfettered. Adding floors to a high-density development alters the scale and intensity of land use and is substantial. The 2019 licence therefore rested on a procedurally flawed process.

p. 20
04

Alleged negligence, air pollution, property damage and health harm

Holding

Not proved. The Petitioner adduced no photographic, expert, toxicological or medical evidence establishing a causal nexus between the construction and the alleged damage to her house, air quality deterioration or depression.

Reasoning

Applying Sections 107 and 108 of the Evidence Act and the higher constitutional threshold in Gwer & KEMRI and Communications Commission of Kenya, mere apprehension of harm without empirical proof cannot found a constitutional violation. Claims under Articles 40 and 26 therefore failed.

p. 21
05

Appropriate remedies given completed development

Holding

Structural interdicts: declaration of unlawfulness of the licences; fresh EIA with meaningful public participation within 60 days at the 1st Respondent's cost; NEMA's decision to be filed in court within 120 days; final suitability determination deferred.

Reasoning

Relying on Fose v Minister of Safety and Security and Hoffmann v South African Airways, the court crafted remedies that address the wrong, are capable of compliance and are fair, bearing in mind that the development was already complete, making demolition-type relief impractical and favoring supervised regularisation.

p. 23

Legal principles established

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  • Where a dispute resolution mechanism exists outside courts, it must be exhausted before court jurisdiction is invoked, though a nuanced, case-by-case approach applies.
  • A constitutional petition on environmental rights falls within the original jurisdiction of the Environment and Land Court notwithstanding the existence of the NET route.
  • The burden rests on the project proponent to demonstrate compliance with public participation obligations.
  • A licence issued in violation of mandatory public participation provisions cannot stand.
  • A change in scale and intensity of a licensed project amounts to a substantial change requiring a fresh EIA.

Court orders

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  1. 1.Declared that the EIA Licenses issued to the 1st Respondent in respect of the development on Land Parcel No. 209/9674 were obtained unprocedurally, and are thus unlawful.
  2. 2.A fresh Environmental Impact Assessment to be undertaken by the 1st Respondent in full compliance with EMCA and the Environmental (Impact Assessment and Audit) Regulations within 60 days from the date of the Judgment.
  3. 3.The fresh Environmental Impact Assessment shall incorporate meaningful public participation pursuant to Regulation 17 and shall be submitted to NEMA.
  4. 4.The decision of NEMA in respect of the said Report(s) shall be filed in court within 120 days from the date of the judgment.
  5. 5.The costs of undertaking the fresh Environmental Impact Assessment and implementing any mitigation measures shall be borne solely by the 1st Respondent.
  6. 6.The final decision/judgment of the court on the suitability of the development on the suit report to be delivered on a date to be agreed upon by the parties, after the lapse of the 120 days.
  7. 7.The Petition against the 3rd Respondent dismissed (no cause of action disclosed).
  8. 8.Claims for breach of the licence scope, property rights (Article 40), right to life (Article 26) and damages/compensation dismissed for want of proof.
Jurisdiction invoked
Article 165 Constitution and Section 13(4) of the Environment and Land Court Act; Articles 22(1) and 70 (enforcement of environmental rights)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Irungu v Hayer Marquis Limited & 2 others (Environment and Land Petition E034 of 2021) [2025] KEELC 6602 (KLR)", Case Analysis (2025). Petition dated 15th September 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6602/eng@2025-09-30

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