“The requirement to exhaust remedies does not apply when there is no decision or action by the administrative bodies to contest…regulatory silence is not a decision; it is an abdication of duty, which falls under the ELC’s original jurisdiction to remedy.”
Introduction
A recent landmark judgment from the Environment and Land Court (ELC) at Thika has significantly strengthened the position of Residents’ Associations in the fight against illegal and uncontrolled developments. In Kimanda & 6 others v Mwaura & 4 others (2026), Lady Justice J. Mogeni clarified essential protections for communities facing developers who attempt to bypass the law.
In this case, Croton Ridge Gardens Residents Association of Kiambu county sued a developer on the ground that she did not seek or obtain the requisite approvals for the development from the lawful authorities, thus directly contravening planning laws and environmental regulations. The developer raised a preliminary objection premised on non-exhaustion of remedies.
You Cannot Appeal a Vacuum
The doctrine of exhaustion of local remedies before coming to court has been a common tactic used by developers to defeat claims by Residents’ Associations. In this matter, the court decisively ruled that the Doctrine of Exhaustion does not apply if the developer never sought the required approvals in the first place. The court affirmed that if a developer bypasses licensing bodies like NEMA or County Planning, there is no “decision” to appeal to a tribunal like the National Environment Tribunal or the County Liaison Committee.
Regulatory silence or building without a permit is an abdication of duty, hence is not an appealable decision. In such cases, the ELC retains original jurisdiction under Article 162(2)(b) of the Constitution to stop manifest illegalities.
Jurisdiction as a Public Trust
The judgment reinforces that the court’s role is not just to settle technical disputes but to act as a guardian of the environment.
While acknowledging that Jurisdiction is everything, the court reaffirmed that jurisdiction also includes the duty of the Court to protect the environment.
“If a Court downs tools while an illegal forest is being cleared or an illegal skyscraper is being built, it abdicates its Constitutional mandate under Article 70.
Jurisdiction, therefore, is not just a power to hear a case, but a trust to protect the subject matter in this case the environment from being destroyed while legal technicalities are debated.”
The Court’s highlighted its proactive duty to prevent environmental harm enshrined under Article 70 of the constitution. It affirmed that jurisdiction of the ELC is a trust to protect the environment from being destroyed while legal technicalities are debated. Thus, where there is a threat of irreversible damage, courts will act to prevent harm before it occurs rather than waiting for procedural disputes to conclude.
The court restated that the principles of environmental management; particularly the precautionary principle, the principle of public trust, sustainable development and prevention principle vests the ELC with the mandates to act to prevent the harm before it occurs, as environmental damage is often irreversible. It emphasized that these principles ensure that the law prioritizes the preservation of the environment over legal delays.
Key Take away for Residents’ Association
This judgment is a powerful tool for Residents’ Associations. It ensures that when a developer breaks ground without the requisite NEMA, NCA, or County approvals, their right to seek an immediate injunction from the ELC is protected. The law will no longer allow procedural technicalities to be used as a shield for environmental degradation.
Conclusion
If there is no permit, there is no need to wait for a tribunal. The Environment and Land Court is open to protect the local physical plan, zoning and environmental integrity for Residents’ Association.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact our Litigation Department vide litigation@wamaeallen.com
About the author
Allen Waiyaki Gichuhi, our Senior Partner, is an experienced and widely respected litigator with over 20 years experience in complex commercial litigation. He is actively involved in legal industry reforms and is ranked in Dispute Resolution Band 2 by Chambers Global. Learn more
Frankline M. Otieno is a dispute resolution associate, recommended professional and committed to offering sustainable client-centred solutions to legal issues.Frankline is astute in commercial litigation, securities law, banking law, intellectual property litigation, public procurement, land law litigation, Judicial Review and Administrative law litigation, sports law, tax litigation, administrative law, consumer protection law, competition law and constitutional litigation.
Nadio George is a dedicated Advocate of the High Court of Kenya, passionate about legal excellence, societal progress, and environmental stewardship. Admitted to the Roll of Advocates in 2023, he combines deep legal expertise with a strong commitment to making meaningful contributions to both the legal profession and the community.
Denis Mutugi specializes in Commercial Litigation and Alternative Dispute Resolution.
Denis graduated with a Bachelor of Laws, LLB (Hons) from The University of Nairobi in 2021 and was admitted to the Roll of Advocates of the High Court of Kenya in the year 2023.
Denis has amassed a considerable wealth of experience in conducting legal research on various complex legal matters touching on Commercial, Insurance, Employment and Insolvency law and bankruptcy.
