Center for Litigation on Environment and Governance (CLEG) (Suing on Behalf of Fulgence Nwanyalo Kisomba) v County Government of Mombasa & 2 others; Attorney General of the Republic Of Kenya & another (Interested Parties) (Environment and Land Petition E004 of 2005) [2025] KEELC 6752 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Locus standi by way of preliminary objection
The ground of locus standi required ascertainment of facts and evidence and was improperly raised as a preliminary objection; it failed.
Applying Mukisa Biscuit and Oraro v Mbaja, a preliminary objection must be a pure point of law on assumed facts. Whether the petitioner was authorised by the landowner Fulgence Mwanyalo Kisomba, and its capacity under Articles 22 and 23, depended on evidence (e.g. the letter marked K35), best tested through affidavit evidence rather than a preliminary objection.
Exhaustion of statutory remedies
The exhaustion doctrine did not bar the petition, which was directed at the County Government and public offices whose statutory organs had already been alerted to the encroachment without action.
The respondents' exhaustion argument would apply to claims against the private developers, but the petition targeted public offices and sought declaratory orders. Correspondence from the 1st respondent (letter dated 3rd June 2021, marked K32) showed the complaints were already before the County Director of Planning and Land Use, and the Liaison Committee was said not to be operationalized.
Particularity of constitutional violations (Anarita Karimi Njeru threshold)
The petition met the Anarita Karimi Njeru threshold; violations were sufficiently particularized in paragraphs 39 to 70.
The petition set out the legal foundation citing the relevant constitutional articles and separately pleaded the alleged violations, satisfying the standard of precision in pleading constitutional infringements, so the petition should proceed to hearing on the merits.
Frivolity, vexation and abuse of process
Having found no bar on locus standi, exhaustion or particularity, the abuse-of-process ground failed.
The court noted it need not pronounce finality at interlocutory stage on issues of law or fact. Since the petition was properly before it and particularized, the fourth ground of the preliminary objection could not stand.
Legal principles established
#- A preliminary objection must be a pure point of law and fails where facts must be ascertained or evidence adduced; locus standi in this instance required evidence and was improperly raised by way of preliminary objection.
- The exhaustion doctrine does not bar a petition against public offices where the relevant complaints had already been brought to the attention of the statutory organs without real progress.
Court orders
#- 1.The preliminary objection dated 27th May 2025 is without merit and is rejected
- 2.Costs shall abide the outcome of the petition
- Jurisdiction invoked
- Constitution of Kenya, 2010 - Articles 22, 23 and the petition's cited Articles 27, 40, 42, 43(1)(b), 47, 57(b) & (c), 62(4) & 232(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Center for Litigation on Environment and Governance (CLEG) (Suing on Behalf of Fulgence Nwanyalo Kisomba) v County Government of Mombasa & 2 others; Attorney General of the Republic Of Kenya & another (Interested Parties) (Environment and Land Petition E004 of 2005) [2025] KEELC 6752 (KLR)", Case Analysis (2025). Not stated in the extract (Mombasa ELC petition dated 21st May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6752/eng@2025-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.