Mazingira Greens Party of Kenya v Stellar Strategies Ltd & 2 others (Environment and Planning Petition E007 of 2026) [2026] KEELC 4034 (KLR)
The bottom line
#Kenya's Environment and Land Court has halted construction of a 21-storey Kilimani tower until a court hears residents' zoning and environmental objections.
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 application herein is competent
- 2.Whether the preliminary objection is merited
- 3.Whether the Petitioner has met the threshold for the grant of conservatory orders
Key legal issues
#Competence of the Notice of Motion (wrong deponent named)
The application is competent; the misdescription of Ngorongo Makanga as deponent was a clerical error causing no prejudice
Rule 19 permits, and Rule 24 contemplates informal documentation for, interim applications in constitutional proceedings, so an affidavit is permissive. Article 159(2)(d) requires substantive justice over technicalities. Bunei demonstrated authority as Chairperson to swear affidavits, Makanga is the Petitioner's Secretary General and no stranger, and no prejudice was shown.
Jurisdiction and exhaustion of statutory remedies (s.61(3) PLUPA; s.129 EMCA)
Preliminary objection fails; the court may exempt the Petitioner from exhaustion in exceptional circumstances
The Anarita Karimi Njeru precision threshold was met as the Petition identifies the impugned approvals and the constitutional provisions infringed. The development approval dated 7th August 2025 means the 14-day statutory appeal window had lapsed, so requiring exhaustion would deny access to justice entirely; no EIA licence decision yet exists to appeal under s.129 EMCA; and the core challenge is constitutional validity, not an appeal on merits.
Whether the Petition is premature (ripeness)
The Petition is not premature; issued approvals are administrative actions capable of challenge
Development permission dated 7th August 2025, change of user approval dated 22nd August 2025 and a borehole licence had already issued, so the dispute is neither speculative nor hypothetical and the alleged threat to constitutional and environmental rights is not remote, defeating the ripeness and constitutional-avoidance objections.
Applicable threshold for the orders sought
The conservatory-order threshold in Gatirau Peter Munya applies, not Giella
The Notice of Motion is expressly brought under Rules 23 and 24 of the Mutunga Rules governing conservatory and interim orders, and the orders are sought pending determination of a Petition raising constitutional and environmental questions; conservatory orders are remedies in rem not tied to irreparable harm or probability of success.
Prima facie case
Established - two arguable issues: applicable zoning framework and adequacy of public participation in the EIA process
There is an arguable issue whether the instruments relied on by the Respondents (the 2025 Development Control Policy and the change of use) authorise a 21-storey development, and an arguable issue whether the 1st Respondent complied with Regulation 21 of the 2025 EMCA Assessment Regulations requiring at least two public consultation meetings, notices, and evidence of consultation annexed to the EIA report.
Prejudice and public interest
Real danger of irreversible, non-compensable environmental prejudice; public interest favours preserving the status quo
Financial expenditure and booking deposits go to balance of convenience, not to prejudice from constitutional violation; environmental harm to infrastructure, microclimate and neighbourhood character is incapable of monetary compensation; the Petition raises public-law questions bearing on the integrity of the planning and environmental regulatory framework.
Legal principles established
#- An affidavit supporting an application under the Mutunga Rules is permissive, not mandatory, and technical misdescription of the deponent is curable under Article 159(2)(d)
- Where the statutory appeal window has lapsed and the dispute is one of constitutional validity of administrative actions, exceptional circumstances under Section 9(4) of the Fair Administrative Action Act excuse exhaustion
- Where a petition seeks orders pending determination of constitutional and environmental issues, the Gatirau Peter Munya conservatory-order threshold, not the Giella injunction test, applies
- A prima facie case at the conservatory stage need only disclose arguable constitutional issues
Court orders
#- 1.Pending the hearing and determination of the Petition, a conservatory order restraining the 1st Respondent, its servants, agents, employees, or any person acting under its instructions or on its behalf, from commencing or continuing any construction works on Plot No. 1/475 (Nairobi/Block 19/62) along Maalim Juma Road, Kilimani
- 2.Costs of the Application shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23 and 70 of the Constitution of Kenya, 2010; Rules 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Relief refused
#Injunction stopping the 2nd & 3rd Respondents from issuing, or suspending any licences/permits already issued, for the construction
The court granted only a conservatory order against the 1st Respondent; no order was made against the 2nd and 3rd Respondents, and costs were not awarded to the Petitioner
Costs
Costs of the Application 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.
Pending the hearing and determination of the Petition, a conservatory order is hereby issued restraining the 1st Respondent, its servants, agents, employees, or any person acting under its instructions or on its behalf, from commencing or continuing any construction works on Plot No. 1/475 (Nairobi/Block 19/62) along Maalim Juma Road, Kilimani.
Costs of the Application shall be in the cause.
To strike out the application on this ground would be to elevate form over substance in a manner that Article 159(2)(d) expressly prohibits.
This court is therefore satisfied that exceptional circumstances have been established within the meaning of Section 9(4) of the Fair Administrative Action Act.
This Court is satisfied that the Petitioner has disclosed arguable constitutional issues. The prima facie threshold is met.
The public interest, therefore, favours the grant of conservatory orders to preserve the status quo pending the hearing and determination of the Petition.
Issues in the judgment
#The supporting affidavit is inconsistently attributed: the Motion states it is supported by the affidavit of Ngorongo Makanga, but the grounds cite the affidavit of John Kiplagat Bunei sworn on even date
Inconsistent storey/unit figures in the pleadings: the Petitioner's affidavit describes 380 residential units (128 one-bedroom, 214 two-bedroom, 38 additional two-bedroom) while the 2nd Respondent describes the application as proposing 360 apartments across 21 storeys
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mazingira Greens Party of Kenya v Stellar Strategies Ltd & 2 others (Environment and Planning Petition E007 of 2026) [2026] KEELC 4034 (KLR)", Case Analysis (2026). Petition dated 2026; Notice of Motion dated 17th February 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4034/eng@2026-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.