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ELCDismissedNot stated in extract (Tracking Number OOH4JU2026)· [2026] KEELC 5248 (KLR)

Sheikh v Creek Container Depot Limited (Environment and Land Petition E003 of 2026) [2026] KEELC 5248 (KLR)

Environment and Land Court
7 August 2026
AOAntony O. Ombwayo
3,148 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Mombasa confirmed it can hear constitutional land and environment petitions directly, even with complaints pending before NEMA.

What this practically means

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Executive summary

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The Petitioner, Kaneez Zahra Sheikh, filed a petition in the Environment and Land Court at Mombasa seeking declarations that her rights and those of residents of Baharini Estate to peacefully enjoy their property (Articles 40 and 42 of the Constitution) had been violated by the Respondent's container storage operations on properties VIMN 2440, VIMN 2441 and VIMN 4158, a permanent injunction against those operations, enforcement assistance from the OCS Changamwe and the Assistant County Commissioner, and damages. The Respondent raised a Preliminary Objection dated 8th July 2026 arguing that the petition offended the doctrine of exhaustion under Sections 9(2) and (3) of the Fair Administrative Action Act, that the dispute belonged before the County Physical and Land Use Planning Liaison Committee under the Physical and Land Use Planning Act, 2019, and that a complaint on the same issues was pending before NEMA. The Respondent relied on Muthinja, Mutanga, Lashad Mohammed Mubarak and United Millers; the Petitioner countered that no development approvals were being challenged, that the statutory appeal mechanisms did not apply to her, and that enforcement of fundamental rights is not barred by the exhaustion doctrine, citing Abidha Nicholas and Amani Residents Welfare Association. The court, Justice Antony O. Ombwayo, held that jurisdiction lay squarely with the ELC because the Liaison Committee cannot determine violations of rights and fundamental freedoms, and that the pending NEMA complaint did not oust the Court's jurisdiction over a constitutional matter. The Preliminary Objection was dismissed with costs. The main petition remains to be heard on its merits.

Key legal issues

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01

Applicability of the doctrine of exhaustion

Holding

The doctrine of exhaustion does not apply; the issues raised concern violation of property rights and fundamental freedoms which the County Physical and Land Use Planning Liaison Committee has no power to determine, and jurisdiction lies squarely with the ELC.

Reasoning

Relying on the Supreme Court decisions in Abidha Nicholas v Attorney General and Kibos Distillers, and the High Court decision in William Odhiambo Ramogi, the court held that enforcement of fundamental rights is not barred by the exhaustion doctrine where the violations are not mere bootstraps. The Liaison Committee cannot determine alleged violations of rights and fundamental freedoms, so the petition is properly before the ELC.

p. 6
02

Effect of pending NEMA complaint and investigations

Holding

The pending NEMA complaint does not oust the Court's jurisdiction over this constitutional petition.

Reasoning

The court held that the point regarding the pending NEMA complaint required demonstration by affidavit, and in any event, the matter being a constitutional one, jurisdiction to entertain it vests in the court and not in NEMA.

p. 8

Legal principles established

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  • Where a suit primarily seeks to enforce fundamental rights and freedoms and the constitutional violations are not mere bootstraps, the suit is not barred by the doctrine of exhaustion.
  • The jurisdiction to determine alleged violations of constitutional rights to property and a clean environment lies with the Environment and Land Court, not with tribunals or authorities such as the NET, EPRA or NEMA committees.

Court orders

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  1. 1.The Preliminary Objection dated 8th July 2026 is dismissed
  2. 2.Costs of the Preliminary Objection to the Petitioner
Jurisdiction invoked
Articles 22, 23(3) and 162(2)(b) of the Constitution as read with Section 4(1) of the Environment and Land Court Act and Section 3 of the National Environmental Management Act (as cited in the petition)

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, "Sheikh v Creek Container Depot Limited (Environment and Land Petition E003 of 2026) [2026] KEELC 5248 (KLR)", Case Analysis (2026). Not stated in extract (Tracking Number OOH4JU2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5248/eng@2026-08-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.