Gichohi & another v Bajuun Properties Ltd & 2 others (Environment and Land Case E049 of 2023) [2026] KEELC 5146 (KLR)
The bottom line
#A Nairobi court stopped a developer from building on two parcels lacking approvals, but let approved construction continue next door.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to hear and determine this suit
- 2.Whether the approvals issued by the 2nd and 3rd Defendants lawfully authorized the impugned development
- 3.Whether there was compliance with public participation requirements
- 4.Whether the Plaintiffs established a violation or a threatened violation of their constitutional and proprietary rights
- 5.Whether the Plaintiffs are entitled to the reliefs sought
- 6.Whether the 1st Defendant is entitled to the orders sought in the counterclaim
Key legal issues
#Whether the planning and EIA approvals authorized the development on all four parcels
Approvals were limited to L.R Nos. 104/228 and 104/229 and did not extend to 104/230 and 104/231; no amalgamation was proved
The Notification of Approval expressly referred to specific parcels, and no corresponding approval for 104/230 or 104/231 was produced. DW1 admitted no amalgamation number had issued and no documentary evidence of completed amalgamation was tendered. DW2 confirmed the EIA covered only 104/228 and 104/229. Approvals must be read according to their terms and cannot be expanded by a developer's assertion.
Whether public participation was meaningful
Public participation complied in respect of 104/228 and 104/229 but did not lawfully cover 104/230 and 104/231
The Court accepted that public participation requires an opportunity for affected persons to express views, not personal involvement of every resident. The EIA process and questionnaires related only to 104/228 and 104/229. Allegations of fictitious signatures failed for want of expert proof of forgery. Participation for the parcels assessed was therefore adequate, but development on parcels not subjected to the process could not be validated by it.
Whether the Plaintiffs' constitutional rights under Articles 40, 42 and 47 were violated
No violation established; no environmental harm proved and the unresolved appeal did not breach Article 47
The evidence addressed legality of approvals and structural implications, not pollution or degradation of natural resources within Article 42 or Article 69. The Plaintiffs also failed to show the county government failed to facilitate the Liaison Committee's mandate; delay alone did not establish an Article 47 breach.
Whether the Plaintiffs were entitled to a permanent injunction
Granted, but limited to L.R Nos. 104/230 and 104/231 pending approvals
The Plaintiffs proved ownership of 104/232 and that the approvals relied upon did not extend to the adjacent parcels. A blanket injunction over all four parcels would exceed the evidence and interfere with the 1st Defendant's proprietary rights on parcels with valid approvals, so the injunction was tailored to the unapproved parcels.
Whether the 1st Defendant's counterclaim was merited
Counterclaim dismissed in its entirety
The injunction and declarations sought were framed broadly and would validate development on parcels lacking approvals. No malice, bad faith or abuse of process by the Plaintiffs was established, defeating general damages. The special damages claim of Kshs 500,000 per day failed because no contracts, invoices or any documentary proof of loss were produced despite being specifically pleaded.
Legal principles established
#- A statutory approval is limited to the parcels expressly covered by it and cannot be extended by pleadings or claims of amalgamation
- Submissions are not evidence; an expert opinion referred to orally but never produced cannot displace formally tendered expert evidence
- Allegations of fraud and forgery must be strictly pleaded and proved to a standard higher than a balance of probabilities
- Special damages must be specifically pleaded and proved
- A jurisdictional issue already ruled on attains finality between the parties absent new jurisdictional facts
Court orders
#- 1.A permanent injunction restraining the 1st defendant from carrying out demolition and/or construction on L.R Nos. NAIROBI BLOCK 104/230 and 104/231, unless and until all planning and environmental approvals have been obtained
- 2.Each Party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (environmental and land disputes)
Relief refused
#Blanket permanent injunction restraining development on all four parcels
Would restrain parcels for which approvals exist
Cancellation of approvals granted by the 2nd and 3rd Defendants
Approvals lawfully issued for L.R Nos. 104/228 and 104/229; no unlawfulness found
Order restraining change of user of the suit properties
No finding that change of user approval was unlawfully obtained
Declaration of violation of Articles 42 and 69 of the Constitution
No environmental expert evidence of pollution, contamination or degradation
Declaration of violation of Article 47
Mere non-determination of appeal does not establish violation
Costs
Each Party shall bear its own costs.
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 permanent injunction is issued restraining the 1st defendant from carrying out the demolition and/or construction on L.R Nos. NAIROBI BLOCK 104/230 and 104/231, unless and until all planning and environmental approvals have been obtained.
For avoidance of doubt, the order shall not affect the 1st defendant's right to proceed with the development on L.R Nos. 104/228 and 104/229 in accordance with the approvals lawfully issued and conditions attached thereto.
Each Party shall bear its own costs.
An amalgamation proposal cannot, on its own, expand the scope of statutory approvals.
An expert opinion referred to in oral testimony, but never produced, cannot displace expert evidence that has been formally tendered and subjected to cross-examination.
Allegations of fraud and forgery are serious in nature and must be strictly pleaded and proved to a standard higher than a balance of probabilities.
Issues in the judgment
#Paragraph 122 states the permanent injunction restrains development on L.R Nos. 104/231 and 104/232, but 104/232 is the Plaintiffs' own property; the final orders (paragraph 133(a)) correctly restrain only 104/230 and 104/231
Paragraph 104 records the finding that the Plaintiffs' parcel 104/232 was not subject to environmental assessment prior to demolition, apparently a misstatement for 104/230 and 104/231, and contradicts the later finding that public participation was satisfied for the parcels covered by the approvals
Paragraph 110 states the approvals did not extend to L.R No. 104/230 and 104/232, an apparent typographical error for 104/231
Paragraph 115 states 'The questionnaires relied upon by the Defendants related to those parcels' where context indicates it should read 'did not relate to' those parcels
DW1 is recorded as stating the four parcels were amalgamated while listing only three in cross-examination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichohi & another v Bajuun Properties Ltd & 2 others (Environment and Land Case E049 of 2023) [2026] KEELC 5146 (KLR)", Case Analysis (2026). ELC CASE NO. E049 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5146/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.