Northern Block Residents Limited v Gitom & another; Canaan Residences Llp (Respondent); National Environment ManagementAuthority & another (Interested Parties) (Environment and Land Petition E090 of 2024) [2026] KEELC 438 (KLR)
The bottom line
#A Kenyan court refused to jail developers for alleged contempt but kept a construction ban in place, allowing only supervised safety work on the disputed property.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Contemnors are in contempt of the order issued on 20th December 2024
- 2.Whether the Respondent is entitled to the orders sought (discharge/vary of the conservatory orders, permission to secure the site, and security for damages)
Key legal issues
#Whether the contemnors were in contempt of the 20th December 2024 conservatory orders
No - contempt not proved to the required standard
The court found the order clear and binding and the Respondent aware of it, but the Petitioner's evidence fell short: photographs of construction materials were inconclusive, lacked locational evidence linking them to the suit property, no OB extracts or charge sheets proved arrests of the contemnors' employees or agents, and independent inspections by both Interested Parties confirmed no ongoing construction. Suspicion or inference cannot sustain a contempt finding given the quasi-criminal standard.
Whether the conservatory orders should be discharged
No - discharge refused; orders varied only to permit safety works
The Respondent failed to show a material change in circumstances since the regulatory approvals predated the orders. The Court of Appeal structural interdicts in Civil Appeals E160 of 2024 and E1010 of 2024 did not invalidate the 2021 policy, declare the cause moot, or direct courts to vacate interim reliefs. The 2025 ordinance, not yet enacted, could not displace the 2021 policy. The court distinguished remedial stabilisation works from development and varied the orders accordingly.
Whether security for damages/undertaking as to damages should be ordered
No - refused as inconsistent with constitutional proceedings
Security for damages is ordinarily a private law remedy. Because the Petition challenges the legality of building approvals and is brought under Articles 22 and 23, imposing security would improperly burden access to constitutional justice, contrary to Mumo Matemu. The Respondent also failed to demonstrate exceptional circumstances at the interlocutory stage.
Legal principles established
#- Elements of civil contempt: clear unambiguous terms of order; knowledge; breach; deliberate conduct
- Standard of proof in contempt is higher than balance of probabilities, almost but not exactly beyond reasonable doubt
- Not every physical activity on land constitutes development; purely safety or stabilisation works do not breach a conservatory order against construction
- Conservatory orders may be reviewed, varied or set aside on proof of changed circumstances or non-disclosure of material facts
- A proposed ordinance that has undergone public participation and first reading does not confer the force of law
Court orders
#- 1.The Notice of Motion dated 4th April 2025 (contempt application) is dismissed
- 2.The prayer for discharge of the Conservatory Orders in the application dated 29th July 2025 is dismissed
- 3.The Conservatory Orders dated 20th December 2024 are varied: they shall continue to prohibit any construction on the suit property
- 4.The Respondent is authorised to carry out only such limited measures as are strictly necessary and contemplated in the Site Inspection Reports to secure and stabilise the site
- 5.The measures shall be expressly approved and supervised by the Interested Parties and other regulatory agencies
- 6.The Respondent shall submit a detailed work plan to the Petitioner and the Court within 14 days
- 7.The Respondent shall file a report detailing the remedial measures undertaken
- 8.No construction, excavation or development beyond the remedial measures shall be undertaken; all activities must comply with directives of the Interested Parties and competent agencies
- 9.Parties are at liberty to apply for further directions and in the event of non-compliance
- 10.The Respondent's alternative prayer for an undertaking as to damages (Kshs 100 million security) and costs is dismissed
- 11.Costs shall abide with the outcome of the Petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23 and 162(2)(b) of the Constitution; Environment and Land Court Act Sections 3 and 19(2)
Relief refused
#Committal of the 1st and 2nd Contemnors to civil jail for contempt
The Petitioner failed to prove wilful and deliberate disobedience to the required (near-criminal) standard; photographs did not conclusively show construction, no locational evidence linked them to the suit property, and no evidence that those on site were the contemnors' employees, agents or contractors
Discharge/vacation of the conservatory orders issued on 20th December 2024
No material change in circumstances; the regulatory approvals existed before the orders; the Court of Appeal judgments did not render the cause moot nor invalidate the 2021 policy
Security for damages of Kshs 100 million / undertaking as to damages
Security for damages is a private law remedy inconsistent with constitutional petitions under Articles 22 and 23; no exceptional circumstances shown
Costs
Costs shall abide with the outcome of the Petition
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Conservatory Orders dated 20th December 2025 shall be varied in the following terms:
The orders shall continue to prohibit any construction on the suit property.
No construction, excavation or development beyond these remedial measures shall be undertaken.
Costs shall abide with the outcome of the Petition
In the end, I find that the application dated 4th April 2025 is devoid of merit and is hereby dismissed.
Regarding the application dated 29th July 2025, the prayer for the discharge of the Conservatory Orders is hereby dismissed.
However, contempt proceedings require more than suspicion or inference.
Issues in the judgment
#The judgment inconsistently refers to itself as both a 'Ruling' and a 'Judgment' and the delivery-date passage is garbled in the text, making the exact delivery date uncertain
The court varies orders it describes as dated 20th December 2024, but the disposition refers to orders dated 20th December 2025 - an apparent typographical inconsistency
Internal date inconsistencies in affidavits: a replying affidavit by Sameer R.J Patel opposing the 29th July 2025 application is sworn on 4th September 2024, and a site visit is dated 24th April 2024 although the order issued on 20th December 2024
The judgment garbles several passages in the analysis, including apparently contradictory statements about the pleading filed by the Petitioner
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Northern Block Residents Limited v Gitom & another; Canaan Residences Llp (Respondent); National Environment ManagementAuthority & another (Interested Parties) (Environment and Land Petition E090 of 2024) [2026] KEELC 438 (KLR)", Case Analysis (2026). Not stated in the judgment (Petition with applications dated 4th April 2025 and 29th July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/438/eng@2026-01-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.