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ELCPartially AllowedNot stated in the judgment (Petition with applications dated 4th April 2025 and 29th July 2025)

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)

Environment and Land Court
27 January 2026
8,816 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~35 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The court determined two applications arising from conservatory orders issued on 20th December 2024 halting construction of the Aura Peponi development on the suit property for breach of zoning regulations, environmental and infrastructure concerns. The Petitioner sought committal of the Respondent's two directors (the contemnors) to civil jail for contempt, demolition of structures erected after the order, and police enforcement. The Respondent sought discharge or variation of the conservatory orders, permission to reinforce perimeter walls, and alternatively an undertaking as to damages backed by Kshs 100 million security. On contempt, the court found the order clear and the Respondent aware of it, but held the Petitioner failed to prove wilful disobedience to the required quasi-criminal standard: the photographs were inconclusive, lacked locational evidence linking them to the suit property, no occurrence book extracts or charge sheets proved arrests of the contemnors' agents, and independent inspections by both Interested Parties found no ongoing construction. The contempt application was dismissed. On discharge, the court held there was no material change of circumstances; the regulatory approvals predated the orders; the Court of Appeal's structural interdicts in Civil Appeals E160 of 2024 and E1010 of 2024 did not invalidate the 2021 zoning policy or render the cause moot; and the unenacted 2025 ordinance had no force of law. However, distinguishing safety stabilisation works from development, the court invoked the precautionary principle and varied the conservatory orders to permit strictly necessary, regulator-supervised remedial works under a 14-day work plan, while maintaining the prohibition on all construction. The security-for-damages prayer was refused as inconsistent with Articles 22 and 23. Costs were ordered to abide the outcome of the Petition.

Questions the Court framed

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

  1. 1.Whether the Contemnors are in contempt of the order issued on 20th December 2024
  2. 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

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01

Whether the contemnors were in contempt of the 20th December 2024 conservatory orders

Holding

No - contempt not proved to the required standard

Reasoning

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.

p. 16
02

Whether the conservatory orders should be discharged

Holding

No - discharge refused; orders varied only to permit safety works

Reasoning

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.

p. 18
03

Whether security for damages/undertaking as to damages should be ordered

Holding

No - refused as inconsistent with constitutional proceedings

Reasoning

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.

p. 18

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 4th April 2025 (contempt application) is dismissed
  2. 2.The prayer for discharge of the Conservatory Orders in the application dated 29th July 2025 is dismissed
  3. 3.The Conservatory Orders dated 20th December 2024 are varied: they shall continue to prohibit any construction on the suit property
  4. 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. 5.The measures shall be expressly approved and supervised by the Interested Parties and other regulatory agencies
  6. 6.The Respondent shall submit a detailed work plan to the Petitioner and the Court within 14 days
  7. 7.The Respondent shall file a report detailing the remedial measures undertaken
  8. 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. 9.Parties are at liberty to apply for further directions and in the event of non-compliance
  10. 10.The Respondent's alternative prayer for an undertaking as to damages (Kshs 100 million security) and costs is dismissed
  11. 11.Costs shall abide with the outcome of the Petition

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 and 162(2)(b) of the Constitution; Environment and Land Court Act Sections 3 and 19(2)

Relief refused

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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

p. 18

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

p. 18

Costs

Costs shall abide with the outcome of the Petition

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.

The Conservatory Orders dated 20th December 2025 shall be varied in the following terms:
p. 18Disposition - variation of conservatory orders
The orders shall continue to prohibit any construction on the suit property.
p. 18Final order - construction prohibition maintained
No construction, excavation or development beyond these remedial measures shall be undertaken.
p. 19Final order - limits of permitted works
Costs shall abide with the outcome of the Petition
p. 19Costs
In the end, I find that the application dated 4th April 2025 is devoid of merit and is hereby dismissed.
p. 18Dismissal of contempt application
Regarding the application dated 29th July 2025, the prayer for the discharge of the Conservatory Orders is hereby dismissed.
p. 18Dismissal of discharge application
However, contempt proceedings require more than suspicion or inference.
p. 16Standard of proof in contempt

Issues in the judgment

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minor

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

material

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

minor

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

minor

The judgment garbles several passages in the analysis, including apparently contradictory statements about the pleading filed by the Petitioner

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, "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.