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ELCPartially AllowedPetition No. E001 of 2023· [2026] KEELC 6210 (KLR)

David Chege Kuria & Another v The Hon Attorney General & 7 Others

Environment and Land Court of Kenya
6 October 2026
6,741 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court halted an EPZ project because the government started construction without consulting residents or completing an environmental assessment first.

What this practically means

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Executive summary

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Two residents of the Gatuanyaga Settlement Scheme, Kiambu County, petitioned under Articles 2, 10, 19, 20, 21, 22, 23 and 165 of the Constitution, challenging the establishment of an Export Processing Zone on land excised from Delmonte Farm (L.R. Nos. 12203/1, 12203/2 and 12158) via Legal Notice No. 201. They sought declarations of unconstitutionality, certiorari, prohibition, mandamus and damages, alleging that the declaration and subsequent works proceeded without public participation, gazette notices, stakeholder engagement or an Environmental Impact Assessment, threatening four wellsprings and a school complex of 2,625 pupils. The 1st to 5th Respondents argued the suit was premature, public participation being reserved for later planning and EIA stages; the National Assembly sought its removal for want of mandate. The Court framed five issues and held that its unappealed ruling of 14/07/2025 on standing was final; that the commencement of works without participation or EIA violated Articles 10, 42, 43(1)(d), 47 and 69 and EMCA and planning statutes; that the exhaustion doctrine did not apply because physical works had already commenced without any participatory process; and that the National Assembly was improperly joined. The petition succeeded in part: declarations of unconstitutionality and rights violations were issued against the 2nd, 7th and 8th Respondents, prohibition and certiorari issued, and mandamus ordered a 90-day public participation exercise and full EIA. Certiorari quashing Legal Notice No. 201 itself and constitutional damages were refused. Each party bears own costs save the 8th Respondent, who bears the Petitioners' costs.

Key legal issues

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01

Locus standi and precision of pleadings

Holding

Settled by the unappealed ruling of 14/07/2025 and not open to re-litigation; pleadings satisfy the Anarita Karimi Njeru precision threshold

Reasoning

The Court held its earlier ruling on jurisdiction and standing final between the parties. Reading the pleadings as a whole, they identify the impugned Legal Notice, affected parcels, water catchments at risk and threatened school complex with sufficient particularity.

p. 21
02

Violation of rights by initiating the EPZ project

Holding

Commencement of works without public participation or EIA violated Articles 10, 42, 43(1)(d), 47 and 69 and EMCA and Physical Planning Act provisions

Reasoning

The Respondents admitted works began before the EIA was finalized and before county land use plan consultations. Applying the Mui Coal Basin standard to uncontroverted facts, the omission was total, not attenuated, and the precautionary principle under section 3(5) EMCA was disregarded.

p. 24
03

Public participation threshold

Holding

The process failed the constitutional and statutory threshold; participation must precede project implementation

Reasoning

Relying on Pauku Wa Kiumbe and Mui Coal Basin, the Court found no prior engagement by the 2nd Respondent, no 21-day gazette notices or ward display by the 8th, and abdication of oversight by the County Assembly under Articles 185(3), 185(4) and 196(1)(b).

p. 22
04

Ripeness and exhaustion

Holding

The Petition is ripe; the exhaustion doctrine does not apply where physical works have commenced without any participatory process

Reasoning

Although administrative processes must generally run their course, intervention is imperative where ongoing physical works threaten imminent and irreversible constitutional harm. The alternative remedy of a later EIA is neither timely nor effective.

p. 25
05

Joinder of the National Assembly

Holding

The National Assembly was improperly joined and struck out for want of a properly pleaded cause of action

Reasoning

Its mandate under Article 95 is confined to legislative oversight; the Petitioners pleaded no session, resolution or omission by the National Assembly bearing on the project. Vague assertions of oversight failure fail the constitutional specificity threshold.

p. 27

Legal principles established

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  • Public participation must be real, calibrated to the scale of the intervention, and undertaken before the event, not offered as an afterthought
  • The exhaustion doctrine does not apply where concrete physical alteration of land use has already occurred without any antecedent participatory process
  • A constitutional petition must plead with precision the specific conduct attributed to each respondent
  • Economic development cannot override constitutional mandates, the precautionary principle, or the socio-economic rights of surrounding communities

Court orders

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  1. 1.Declaration that the actions and decisions of the 2nd, 7th and 8th Respondents in initiating physical development, excavations and setup for the proposed EPZ on L.R. Nos. 12203/1, 12203/2 and 12158 without prior public participation and without a duly approved EIA licence are unconstitutional, illegal, null and void
  2. 2.Declaration that the 2nd, 7th and 8th Respondents violated Articles 10, 42, 43(1)(d), 47 and 69 by failing to conduct meaningful prior public participation and failing to procure an EIA before commencing works
  3. 3.Order of prohibition restraining the 2nd, 7th and 8th Respondents from further construction, excavation or physical development on the suit parcels until the mandamus orders are complied with
  4. 4.Order of mandamus directing the 2nd, 7th and 8th Respondents to conduct, within 90 days, a public participation exercise meeting the Mui Coal Basin standard, including 21-day gazette and ward-level notices, and to procure a full EIA under section 58 of EMCA
  5. 5.Order of certiorari quashing any development approvals, site authorizations or administrative decisions permitting physical works on the suit parcels prior to full statutory compliance
  6. 6.The name of the 6th Respondent, the National Assembly, struck out of the proceedings for want of a properly pleaded cause of action, with no orders as to costs
  7. 7.Each party to bear their own costs save that the 8th Respondent shall bear the Petitioners' costs of the Petition

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3(1), 10, 19, 20, 21, 22, 23, 24, 258(2), 259(1), 40, 42, 43, 47, 60, 69, 94, 95, 118, 119, 162(2)(b), 165, 174, 185, 196
  • Environment and Land Court ActSection 13
  • Environmental Management and Co-ordination Act (EMCA)Sections 2, 3, 3(5), 9, 58, 58(2)
  • Physical and Land Use Planning Act, 2019Sections 2, 4, 5, 38, 40
  • Export Processing Zones Act, 1990Sections 2, 15, 15(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 10(2)
  • Fair Administrative Action ActSection 9
  • Evidence ActSection 107
  • Civil Procedure ActSection 27
  • Rio Declaration on Environment and DevelopmentPrinciple 15
  • National Assembly Standing Orders

Cases cited (27)

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR; [2013] KECA 445 (KLR)

    Public interest litigation may be maintained by any bona fide member of the public

  • Anarita Karimi Njeru v Republic
    [1979] KEHC 30 (KLR)

    Precision required in constitutional pleadings

  • Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 others
    [2015] eKLR; [2015] KECA 304 (KLR)

    Pleading precision; courts as fora of last resort

  • CFC Stanbic Bank Limited v Kenya Haulage Agency Limited
    [2025] KECA 1034 (KLR)

    Cause of action

  • Ansazi Gambo Tinga & Another v Nicholas Patrice Tabuche
    [2019] KECA 803 (KLR)

    Cause of action

  • Munya v Dickson Mwenda Kithinji & 2 Others
    Civil Application No. 5 of 2014

    Standards of proof

  • Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others
    [2013] eKLR

    Standards of proof

  • Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others
    [2014] eKLR

    Sustainable development and public participation as national values under Article 10

  • Export Processing Zone Authority & 10 Others v National Environment Management Authority & 3 Others
    Petition E021 of 2023; [2024] KESC 75 (KLR)

    State's primary obligation is precautionary before relying on polluter pays principle

  • British American Tobacco Kenya PLC v Cabinet Secretary for the Ministry of Health & 2 Others
    Petition 5 of 2017; [2019] eKLR

    Public participation must be real, meaningful, timely and with reasonable notice

  • C M M & 6 Others v The Standard Group & 4 Others
    SC Petition 13 (E015) of 2022 (Judgment) (8th September 2023)

    Constitutional remedies under Article 23

  • Supermarine Handling Services Ltd v Kenya Revenue Authority
    [2010] KECA 373 (KLR)

    Costs follow the event

  • Rai & 3 Others v Rai & 4 Others
    Petition 4 of 2012; [2013] KESC 20 (KLR)

    Judicial discretion on costs in public interest litigation

  • Mohamed Ali Baadi and Others v Attorney General & 11 Others
    [2018] KEHC 5397 (KLR)

    Balancing economic development against environmental protection; caution on premature injunctive relief

  • Republic v. Rosemary Wairimu Munene (Ex parte Applicant) v. Ihururu Dairy Farmers Cooperative Society Ltd
    (2004)

    Costs discretion in public interest litigation

  • Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another
    [2016] KEHC 7064 (KLR)

    Costs discretion

  • Halsbury's Laws of England

    Costs principles

  • Speaker of the National Assembly v Karume
    Civil Application 92 of 1992; [1992] KECA 42 (KLR)

    Where Constitution or statute prescribes specific procedure, it must be strictly followed

  • Ngumi v Waigwa & 6 others
    [2026] KEHC

    Constitutional pleading standard

  • In the Matter of Kenya National Commission on Human Rights
    Reference 1 of 2014; [2014] KESC 33 (KLR)

    Holistic constitutional interpretation

  • Gideon v University of Eastern Africa, Baraton & 6 others
    Judicial Review Cause E003 of 2025; [2025] KEHC 18120 (KLR)

    Doctrine of exhaustion

  • John Fitzgerald Kennedy Omanga v Postmaster General, Postal Corporation of Kenya & 2 others
    [2004] eKLR

    Exhaustion of internal remedies before judicial review

  • Pauku Wa Kiumbe & 3 Others v Minister for Environment and Mineral Resources & 4 Others
    [2013] eKLR

    Binding nature of environmental compliance and public consultation

  • Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others
    [2015] eKLR

    Content of public participation under Articles 10 and 69

  • William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties)
    [2020] eKLR

    Restatement of the doctrine of exhaustion

  • Patrick Ouma Onyango & 12 Others v Attorney General & 2 Others
    [2005] eKLR

    Parties must not be unnecessarily dragged into court where no cause of action disclosed against them

  • Nzioka & 2 Others v Smart Logistics International Limited & 2 Others
    [2014] eKLR

    Limits of prematurity arguments where physical execution has commenced without approvals

Jurisdiction invoked
Articles 162(2)(b), 165(3)(d)(i) & (ii) of the Constitution and Section 13 of the Environment and Land Court Act (No. 19 of 2011)

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, "David Chege Kuria & Another v The Hon Attorney General & 7 Others", Case Analysis (2026). Petition No. E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6210/eng@2026-10-06

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