The High Court has dismissed a petition by residents of Kyuna estate, Nairobi, to stop a private investor from constructing a primary school within the high-end residential area, citing noise and population congestion.
Justice Oscar Angote rejected the petition after finding that the residents, suing under the auspices of Kyuna Residents Association, had filed a similar case against the decision of the National Environment Tribunal over the said construction two years ago.
“From the pleadings and annexures, it is clear that the factual basis of the petition remains substantially unchanged from what was before the tribunal and this court on appeal. The same development, the same Environmental Impact Assessment (EIA) licence and alleged irregularities, and the same administrative actors are in issue,” said the judge.
He added that the filing of the petition amounted to forum shopping and an abuse of the court process. The construction in issue is a primary school for at least 220 students.
The developer, Montessori Learning Centre (MLC), through its director, Sahil Dodhia, said public participation was undertaken through numerous questionnaires and public meetings.
Consequently, he said there was no dereliction of duty by the National Environment Management Authority (Nema) and the Nairobi City County Government as alleged.
Mr Dodhia stated that the approvals were granted in 2020 by the Nairobi Metropolitan Services and that they sought a change of user from low-density residential houses to educational use (Primary School) under the notification of approval of development.
The residents' association through its officials Kimani Mathu (chairperson), Atul Shah (vice chairperson), and Chris Ndegwa (secretary) argued that the project was out of character with the area and it would materially alter the use of the property from strictly residential to educational.
They said the neighborhood is lawfully zoned and classified by the Nairobi City Government as a low-density residential apartment characterised by single dwelling residential homes each sitting on a minimum acreage of at least half an acre.
However, Justice Angote ruled that the complaints regarding the alleged ongoing environmental degradation, noise pollution, and felling of trees involved post-approval conduct and possible non-compliance with EIA License conditions.
He said these concerns were subject to enforcement under the existing laws, which was a separate issue from the petition before the court.
The court heard that the neighborhood has attracted senior members of society due to its general character and scale of buildings as well as its unique and remarkable natural environment defined by green ambience and heavy tree cover.
It was their case that neither the Association, nor its officials, nor any of its project-affected members, including those immediately neighbouring the subject property, were party to or participated in deciding to allow the construction.
They alleged that the construction approvals were dubiously obtained, in contravention of the Physical and Land Use Planning Act, and that the developer had begun excavation works and construction occasioning noise and excessive vibration pollution.
They said this made the residents' homes uninhabitable contrary to the underpinnings in the Noise and Excessive Vibration Pollution control regulations.
The judge also found that the dispute was governed by the Environment Management and Co-ordination Act (EMCA), about EIA licensing, and the Physical and Land Use Planning Act (PLUPA) in relation to change of user and development approvals.
He said the petitioners did not initially approach the court with a comprehensive petition. Rather, they first elected to proceed before the National Environment Tribunal, focusing singularly on the alleged irregular EIA Licence issuance and attendant constitutional breaches.
The court also found that there was no evidence to show that the Petitioners took any steps to challenge the approval of the development through the appropriate statutory mechanisms under the Physical and Land Use Planning Act.
"While this court acknowledges the importance of the right of access to justice under Article 48 of the Constitution, it must also emphasize that litigation must be conducted in good faith and within the confines of procedural and substantive legal rules," said the judge.
According to Justice Angote, to allow what the petitioners sought to do would have set a dangerous precedent.
"It would open the floodgates for litigants who, having failed to meet the strict procedural requirements under specialized statutory frameworks such as EMCA and PLUPA, would simply recast their grievances to circumvent lawful timelines," explained the judge.
"The petitioners cannot be permitted to gamble with the judicial system, testing their case in different courts. Such a scenario, if allowed, will open floodgates to repetitive suits, bringing the administration of justice into disrepute. It would undermine the finality of decisions made through statutory forums and weaken the structure of Kenya’s environmental and planning adjudication regime," said the judge.
He observed that in addition to the original claims relating to the EIA licence, the petitioners had also raised further complaints concerning alleged irregular approvals for change of user, architectural designs, felling of trees, noise pollution, and environmental degradation.
The petitioners had argued that the case sought to address whether the emission of noise and excessive vibrations contrary to the Noise and Excessive Vibration Pollution Control Regulations contravened the principles of sustainable development.
