Okoiti v Ministry of Lands, Public Works, Housing and Urban Development & 11 others; Langata Reject Ahp Committee & 18 others (Interested Parties) (Land Case Petition E052 of 2025) [2026] KEELC 465 (KLR)
The bottom line
#A Kenyan court has halted the Southlands affordable housing project in Lang'ata because construction began before the required environmental assessment was approved.
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 Motion of 4th July, 2025 is competent?
- 2.What is the consequence of the 10th Respondent recanting its Affidavit?
- 3.Whether the Petitioner has met the threshold for the grant of conservatory orders?
Key legal issues
#Competency of the Motion given unsealed annexures and uncertified electronic evidence
The Motion was competent; formalities in constitutional petitions are kept to a minimum and expunging the annexures would elevate procedural form over constitutional substance.
Article 22(3) requires minimum formalities and permits informal documentation. Rule 11 of the Mutunga Rules allows documents to be annexed to a petition or supporting affidavit. The Supreme Court in Likowa v Aluochier affirmed that vindication of constitutional rights need not be formalistic. The Evidence Act applies to affidavits only subject to other statutes and rules of court, so Section 106B(4) operates within the more flexible Mutunga Rules framework.
Effect of the 10th Respondent's Director General recanting his affidavit
The affidavits were materially self-contradictory and unreliable on the central issue of EIA compliance; the retraction did not cure the inconsistency nor displace NEMA's written admission of non-compliance.
An affidavit once sworn and filed is evidence. Two affidavits with mutually inconsistent material averments destroy their own probative value. By filing a supplementary affidavit rather than disowning the first, the deponent implicitly acknowledged its validity. No complaint was lodged with investigative authorities over the alleged misuse of his signature, and NEMA's own letter of 26th March 2025 admitting no EIA had been undertaken remained uncontroverted.
Whether the threshold for conservatory orders was met
Yes — the Petitioner demonstrated a prima facie case with likelihood of success, real risk of prejudice rendering the Petition nugatory, and public interest favouring restraint.
Construction was underway by March 2025; NEMA's own correspondence of 26th March 2025 confirmed no EIA had been undertaken; the licence issued only on 16th December 2025 after commencement. The ESIA reports for Lots 2–5 were unsigned, had gaps in public participation documentation, and the licence described the project as 'over 10,000 units' without specifying numbers. These disclosed arguable breaches of Articles 10, 42 and 69 and EMCA. The scale of the project meant prejudice was inherent, and public interest favoured the rule of law.
EIA compliance prior to commencement of a high-risk project
Section 58 of EMCA requires an EIA study approved prior to commencement; a prima facie case of non-compliance was disclosed where construction predated the licence.
Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003 prescribes mandatory public participation steps, and Regulation 18(2) requires the ESIA report to be signed by both proponent and experts. The record showed unsigned reports, references to 'XXX' venues, an attendance list from Mathare Constituency, and no report for Lot 1. These were substantive safeguards, not technical formalities.
Legal principles established
#- An affidavit once sworn and filed constitutes evidence; a deponent who swears two affidavits with mutually inconsistent averments on material facts becomes self-contradictory and undermines his own probative value.
- In constitutional litigation under Article 22(3), formalities are kept to a minimum and documents annexed to a petition will be accepted even if informal; non-compliance with Rules 9 and 10 of the Oaths and Statutory Declarations Rules does not invalidate such annexures.
- A supplementary affidavit can only be filed to supplement a proper existing affidavit; it cannot be used to recant a contradictory one.
- Public interest in large-scale development is not served by continuation of construction at all costs, but by development proceeding strictly within constitutional and statutory confines.
Court orders
#- 1.The Notice of Motion dated 17th December, 2025 is dismissed.
- 2.A conservatory order restraining the Respondents, their agents, servants, developers, contractors, assigns or any other persons acting under their authority from continuing with the excavation, development and construction of social housing and associated infrastructure in Southlands, Langata Constituency (Southlands Affordable Housing Project, Contract No. MLPWHUD/SDHUD/SUD/382/2023-2024-Lot Numbers 1, 2, 3, 4 & 5) pending the hearing and determination of the Petition.
- 3.The Officer Commanding Station (OCS), Langata Police Station to provide all necessary support in execution of the orders granted.
- 4.The hearing of the Petition shall be expedited.
- 5.Costs of the two applications shall be in the cause.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 165(3), 162(2)(b) and 258 of the Constitution of Kenya, 2010
Relief refused
#Attorney General's Notice of Motion dated 17th December, 2025 seeking setting aside/variation of the interim conservatory orders of 11th December 2025
It raised no separate or independent questions and its grounds were subsumed within the Petitioner's earlier Motion; the Court found a prima facie case justifying continued conservatory orders.
Costs
Costs of the two applications shall be in the cause.
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.
A conservatory order does hereby issue restraining the Respondents, their agents, servants, developers, contractors, assigns or any other persons acting under their authority, or howsoever acting, from continuing with the excavation, development and construction of social housing and associated infrastructure in Southlands, Langata Constituency, Nairobi County under Contract No. MLPWHUD/SDHUD/SUD/382/2023-2024-Lot Numbers 1, 2, 3, 4 & 5
The Notice of Motion dated 17th December, 2025 is hereby dismissed.
Costs of the two applications shall be in the cause.
public interest is not served merely by the continuation of construction at all costs, but by ensuring that development proceeds strictly within the confines of the Constitution and the law.
an affidavit cannot be casually recanted on tenuous grounds.
vindication of constitutional rights needed not be formalistic nor technical under the Constitution.
Issues in the judgment
#The 10th Respondent's Director General swore two mutually contradictory affidavits; the Court itself noted the contradiction and resolved it against the retraction.
Internal date inconsistencies in the Respondents' record (issues addressed 'vide a letter dated 4th August, 2024' versus a 'further TOR report received by the Authority on 4th August, 2025').
The judgment inconsistently refers to the Kenya Civil Aviation Authority as the 18th Interested Party in one passage and as 'the 18th Respondent' in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okoiti v Ministry of Lands, Public Works, Housing and Urban Development & 11 others; Langata Reject Ahp Committee & 18 others (Interested Parties) (Land Case Petition E052 of 2025) [2026] KEELC 465 (KLR)", Case Analysis (2026). Petition (Southlands Affordable Housing Project) — Motion dated 4th July, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/465/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.