Thome V Resident Welfare Association (Suing on behalf of the Residents of Thome V Estate, Nairobi) v Nairobi City County & 2 others (Petition E109 of 2025) [2026] KEELC 1852 (KLR)
The bottom line
#A residents' association's petition challenging land development approvals was struck out because it skipped the required appeals to statutory bodies first.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court has jurisdiction over the Petition in light of the doctrine of exhaustion
The Petition was filed prematurely; the Court lacks original jurisdiction because the Petitioner did not first appeal to the County Physical and Land Use Planning Liaison Committee or the National Environmental Tribunal, and made no Section 9(4) FAAA exemption application.
The Act establishes a comprehensive dispute resolution framework vesting primary jurisdiction in the Liaison Committee, with the ELC exercising appellate jurisdiction. Section 129 EMCA routes EIA licence grievances to the NET. No exceptional circumstances or exemption application under Section 9(4) FAAA were demonstrated, so the statutory remedies had to be exhausted first.
Whether a preliminary objection can properly raise the issue of jurisdiction
Yes; jurisdiction is a pure point of law properly taken as a preliminary objection.
Applying Mukisa Biscuits and Quick Enterprises, a preliminary objection must be capable of disposing of the matter without ascertaining facts. The exhaustion issue turned on the pleadings alone and thus qualified as a pure point of law.
Whether the Petitioner's locus standi should be determined
Not determined, as the lack of jurisdiction disposed of the matter.
Having found it lacked jurisdiction, the Court was obliged to down its tools per Owners of Motor Vessel 'Lillian S' and could make no further step, rendering the locus standi question unnecessary to decide.
Legal principles established
#- Where a statute provides a clear procedure for the redress of a grievance, that procedure must be strictly followed before resorting to the courts
- A court without jurisdiction must down its tools immediately
- The only exception to the exhaustion doctrine under the Fair Administrative Action Act is via an exemption application under Section 9(4) demonstrating exceptional circumstances
Court orders
#- 1.The Preliminary Objections dated 30th January 2026 and 2nd February 2026 are upheld
- 2.The Petition dated 23rd December 2025 is struck out with no orders as to costs
- Jurisdiction invoked
- Articles 22, 23, 70 and 162(2)(b) of the Constitution of Kenya, 2010 (invoked by the Petitioner); challenged under the doctrine of exhaustion per Section 61(3)-(4) of the Physical and Land Use Planning Act, 2019 and Section 9(2)-(3) of the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thome V Resident Welfare Association (Suing on behalf of the Residents of Thome V Estate, Nairobi) v Nairobi City County & 2 others (Petition E109 of 2025) [2026] KEELC 1852 (KLR)", Case Analysis (2026). Petition dated 23rd December 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1852/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.