Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in the extract (Mombasa ELC petition dated 21st May 2025)· [2025] KEELC 6752 (KLR)

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)

Environment and Land Court
8 October 2025
2,206 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The petitioner, a human rights organization acting with the authority of Fulgence Mwanyalo Kisomba, the 75-year-old owner of plots Nos. 1683 and 1693 in Ziwa La Ngombe, filed a constitutional petition dated 21st May 2025 seeking declarations under Articles 27, 40, 42, 43(1)(b), 47, 57(b) & (c), 62(4) and 232(1) of the Constitution, together with a notice of motion seeking orders prohibiting further development on the access roads to the plots and directing a ground survey and demarcation. The 2nd and 3rd respondents and the 1st interested party filed a notice of preliminary objection dated 27th May 2025 on four grounds: lack of locus standi, non-exhaustion of statutory remedies under the Physical and Land Use Planning regime and the Public Roads and Roads of Access Act, failure to meet the particularity threshold in Anarita Karimi Njeru v Republic, and frivolity/abuse of process. Justice S. M. Kibunja, applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and Oraro v Mbaja, held that locus standi in this case required evidence and was improperly raised by way of preliminary objection. On exhaustion, the court found the petition was directed at public offices that had already been alerted to the encroachment, and the Mombasa Liaison Committee was not operationalized. The pleading of violations met the Anarita Karimi Njeru standard, and the abuse-of-process ground failed. The preliminary objection was rejected in its entirety, with costs abiding the outcome of the petition. The substantive petition and application remain pending hearing on the merits.

Key legal issues

#
01

Locus standi by way of preliminary objection

Holding

The ground of locus standi required ascertainment of facts and evidence and was improperly raised as a preliminary objection; it failed.

Reasoning

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.

p. 4
02

Exhaustion of statutory remedies

Holding

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.

Reasoning

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.

p. 4
03

Particularity of constitutional violations (Anarita Karimi Njeru threshold)

Holding

The petition met the Anarita Karimi Njeru threshold; violations were sufficiently particularized in paragraphs 39 to 70.

Reasoning

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.

p. 5
04

Frivolity, vexation and abuse of process

Holding

Having found no bar on locus standi, exhaustion or particularity, the abuse-of-process ground failed.

Reasoning

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.

p. 5

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. 1.The preliminary objection dated 27th May 2025 is without merit and is rejected
  2. 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.