Introduction
Center for Litigation on Environment and governance [CLEG], the Petitioner herein has filed this petition against the County Government of Mombasa and 6 other respondents. The petition seeks declarations that:-
1. The respondents violated Article 42 of the Constitution 2010 that guarantees right to a clean and healthy environment.
2. It is alleged that the Respondents violated Article 26(3) of the constitution 2010 by intentionally threatening the life of the general public and specifically the life of Mama Nasanga Nsajja Jane.
3. The 1st 5th and 6th Respondents violated the petitioner's rights as guaranteed by Article 47(1)(2) of the constitution 2010 on a fair administrative action.
4. The 5th and 6th Respondents by acting in the manner they did, violated Article 10(1) (2) of the constitution 2010 on national values and principles of governance.
5. The Respondents violated Article 62(4) of the constitution 2010 that prohibits disposal and usage of public land unless by an act of parliament specifying the nature and terms of that disposal or use,
6. The 1st, 5th and 6th Respondents violated the petitioner's right in common with the mama Nasanga Nsajja and the general public as guaranteed under Article 27(1)(2) of the constitution that guarantees equality and freedom from discrimination
7. The Respondents violated mama Nasanga Nsajja Jane's rights as guaranteed under Article 54(1)(a-c) of the constitution 2010 which guarantees rights to persons with disabilities.
8. The Respondents violated Mama Nasanga Nsajja Jane's rights as guaranteed under Article 57(a-c) of the Constitution 2010 which guarantees older members of the society rights to fully participate in the affairs of society, to pursue their personal development, to live in dignity and respect and be free from abuse.
9. The 5th and 6th Respondents by acting in the manner they did, violated Article 232(1)(a-f) of the constitution 2010 on values and principles of public service. The 5th and 6th Respondents are unfit to hold public office.
The petitioner finally seeks orders of a permanent injunction prohibiting the Respondents either by themselves or by their agents or by their assigns or by individuals and entities not mentioned in this suit from occupying, developing, subdividing, selling and or constructing any structure of any nature on the access road, the suit property situated in Shanzu settlement scheme within Mombasa County.
Furthermore, an order compelling the 2nd 3rd and 4th Respondents to comply with the enforcement notice as issued by the 1st Respondent dated 17th September 2025 to remove their developments and structures built on the said access road situated in Shanzu settlement scheme within Mombasa County and to restore the said road to its original state within ninety (90) days of the court's judgement.
The petitioner prays that incase the 2nd 3rd and 4th Respondents fail to comply with order no. (ii)(b) hereinabove, the 1st 5th and 6th Respondents be directed to demolish all and every structure and development erected and built on the said access road in Shanzi settlement scheme within Mombasa County including restoring the land to its original state and the cost incurred in the exercise be met by the 2nd , 3rd and 4th Respondents and that the 1st, 5th and 6th Respondents to file an affidavit in this court within 120 days of this court's judgment detailing the status of the access road herein referred to as the suit property in respect to compliance with prayer no.(ii)(b) & (ii)(c) herein above.
Lastly, that the Honourable court awards general damages to Mama Nasanga Nsajja Jane as against the 2nd 3rd 4th 5th and 6th Respondents for the inconvenience caused, compelling the respondents to bear the cost of this suit.
PRELIMINARY OBJECTION BY 2ND -4TH RESPONDENTS
The 2nd – 4th respondents filed a notice of Preliminary Objection stating that this Honorable Court lacks jurisdiction to entertain, hear and determine both the application and Petition since the Petitioner is bereft of Locus standi to institute and prosecute this Petition.
The 2nd to 5th respondents contend that in the absence of Mama Nasanga Nsajja Jane, the purported victim, or any statement or affidavit from Jane and/or member(s) of the public, the Petition cannot be sustained under public interest litigation;
The respondents argue that the Application and the Petition are founded on falsehood and are an abuse of the court process.
The respondents urge that this is a boundary dispute between parties that is disguised as a constitutional petition.
The Petition discloses no reasonable cause of action against the 2nd 3rd and 4th Respondent and the same is frivolous and a waste of court time and the same should be dismissed with costs to the 2nd 3rd and 4th Respondents.
The Petition violates the doctrine of exhaustion.
The suit is bad in law, incurably defective and the same should be dismissed with cost to the respondents herein.
PRELIMINARY OBJECTION BY THE 1ST RESPONDENTS
The 1st respondent filed a Preliminary Objection whose gist is that this honourable Court lacks Jurisdiction to entertain this matter and the petitioner's suit violates the Doctrine of exhaustion.
That the said suit and/or petition discloses no reasonable cause of action 5th and 6th Respondent and same is premature, Non -starter in law, scandalous and/or frivolous or vexations and (he same is an abuse of the process and same should be dismissed with costs to Respondent.
That the entire suit is misconceived both in law and facts tainted with false hood and as such is an abuse of the process of court and the said suit ought to be dismissed with costs to the Respondent,
That the Suit is flawed and cannot proceed due to specific provisions of the law more specifically the available alternative dispute mechanisms under county law and in absence of such, the suit ought to be dismissed with costs to the 5th and 6th Respondent.
That the Suit is bad in law, incurable defective and the same is not properly before this court and is ripe for Dismissal with costs to the Respondents herein.
ANALYSIS AND DETERMINATION
The two Preliminary Objections basically raise issues that the petitioner lacks standing, the petition is against individuals who cannot be sued, and offends the principle of exhaustion.
On locus standi, Articles 22 and 258 of the Constitution empower any person to institute court proceedings claiming that a right in the Bill of Rights has been denied, violated, or infringed. This includes acting on behalf of others who cannot act in their own name, acting as a member of/in the interest of a group, or acting in the public interest. In Public Interest Litigation like the one before me, the courts in Kenya have adopted a flexible approach, allowing public-spirited individuals or NGOs to bring cases related to environmental protection, human rights, and constitutional violations, even if they are not personally aggrieved.
The Black’s Law Dictionary, 9th Edition at page 1026 locus standi as: -
“The right to bring an action or to be heard in a given forum”
The promulgation of Constitution 2010 gave the concept of locus standi a wider meaning vide Article 3(1) as read with Articles 22 and 258 of Constitution 2010. The said provisions allow every person the leeway to defend Constitution 2010 and to institute Court proceedings to protect a right or fundamental freedom or Constitution 2010 itself.
In Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR the Court while referring to The matter of Ms. Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission Nairobi HCCP No. 1 of 2010 held as follows: -
…In Kenya the Court has emphatically stated that what gives locus standi is a minimal personal interest and such interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population….
In Khelef Khalifa El-Busaidy v Commissioner of Lands & 2 others [2002] eKLR the Court discussed locus standi thus: -
…for an individual to have a locus standi, he must have an interest either vested or contingent in the subject matter before the court, which interest must be a legal one. Such interest must be above that of other members of the public in general.
The Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR settled the issue of locus standi in constitutional Petitions in the following manner: -
“(28) It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some special interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22 (3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28th June 2013 – the Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013–which, in view of its long title, we take the liberty to baptize, the “Mutunga Rules”, to inter alia, facilitate the application of the right of standing. Like Article 48, the overriding objective of those rules is to facilitate access to justice for all persons. The rules also reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated or infringed or threatened has a right of standing and can institute proceedings as envisaged under Articles 22 (2) and 258 of the Constitution.(29)It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision, or without authority of law, and such person or determinate class of persons is, by reason of poverty, helplessness, disability or socio-economic disadvantage, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution.(30)It is our consideration that in filing the petition the 1st respondent was acting not only on behalf of its members and in accordance with its stated mandate, but also in the public interest, in view of the nature of the matter at hand. The 1st respondent, its members and the general public were entitled to participate in the proceedings relating to the decision-making process culminating in the impugned decision.”
The upshot of the above is that the petitioner has the locus standi to file the petition on behalf of the public and disadvantaged individuals.
On the doctrine of exhaustion, it has been held by The Supreme Court of Kenya in the case of Abidha Nicholas v the Attorney General & 7 Others [2024]eKLR and which case mentioned their position in Kibos Distillers v Benson Adega and several other cases.
At paragraph 104 the decision the Supreme .Court held thus;-
“On the issue of exhaustion, this court finds that the jurisdiction to hear the petition lies squarely with the Environment and Land Court t as the issues raised of violation of property rights cannot be entertained by the Land acquisition Tribunal. Tribunals cannot determine the violation of rights and fundamental freedoms. The Supreme Court in the case of Abidha Nicholas v the Attorney General & 7 Others [2024]eKLR and which case mentioned their position in Kibos Distillers v Benson Adega and several other cases. At paragraph 104 the S.C held thus;-“Having considered the above complaints, we reiterate our earlier finding in this judgment that the mandate and jurisdiction to determine these questions lie with the ELC under Articles 22, 23(3) and 162(2)(b) of Constitution 2010 as read with Section 4(1) of the Environment and Land Act. We say so because neither the NET, EPRA nor EPT have the jurisdiction to determine alleged violations of the Constitution 2010. That right to access the court for redress of alleged constitutional violations, should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms. We say this persuaded by the elegant reasoning in William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR where the High Court (Achode (as she then was), Nyamweya (as she then was), & Ogola, JJ) stated:“In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”
I do find that nature of the reliefs sought by the petitioner cannot be entertained by a tribunal as the petitioner alleges violation of the right to life of the public under Article 26(30 of the constitution of Kenya 2010. Moreover, the petitioner claims that there is a violation of the right to a clean and healthy environment inter alia which are not within the jurisdiction of the tribunals. The Preliminary Objections are not merited and are dismissed with costs to the Petitioner.
Center for Litigation on Environment and governance [CLEG], the Petitioner herein has filed this petition against the County Government of Mombasa and 6 other respondents. The petition seeks declarations that:-
1. The respondents violated Article 42 of the Constitution 2010 that guarantees right to a clean and healthy environment.
2. It is alleged that the Respondents violated Article 26(3) of the constitution 2010 by intentionally threatening the life of the general public and specifically the life of Mama Nasanga Nsajja Jane.
3. The 1st 5th and 6th Respondents violated the petitioner's rights as guaranteed by Article 47(1)(2) of the constitution 2010 on a fair administrative action.
4. The 5th and 6th Respondents by acting in the manner they did, violated Article 10(1) (2) of the constitution 2010 on national values and principles of governance.
5. The Respondents violated Article 62(4) of the constitution 2010 that prohibits disposal and usage of public land unless by an act of parliament specifying the nature and terms of that disposal or use,
6. The 1st, 5th and 6th Respondents violated the petitioner's right in common with the mama Nasanga Nsajja and the general public as guaranteed under Article 27(1)(2) of the constitution that guarantees equality and freedom from discrimination
7. The Respondents violated mama Nasanga Nsajja Jane's rights as guaranteed under Article 54(1)(a-c) of the constitution 2010 which guarantees rights to persons with disabilities.
8. The Respondents violated Mama Nasanga Nsajja Jane's rights as guaranteed under Article 57(a-c) of the Constitution 2010 which guarantees older members of the society rights to fully participate in the affairs of society, to pursue their personal development, to live in dignity and respect and be free from abuse.
9. The 5th and 6th Respondents by acting in the manner they did, violated Article 232(1)(a-f) of the constitution 2010 on values and principles of public service. The 5th and 6th Respondents are unfit to hold public office.
The petitioner finally seeks orders of a permanent injunction prohibiting the Respondents either by themselves or by their agents or by their assigns or by individuals and entities not mentioned in this suit from occupying, developing, subdividing, selling and or constructing any structure of any nature on the access road, the suit property situated in Shanzu settlement scheme within Mombasa County.
Furthermore, an order compelling the 2nd 3rd and 4th Respondents to comply with the enforcement notice as issued by the 1st Respondent dated 17th September 2025 to remove their developments and structures built on the said access road situated in Shanzu settlement scheme within Mombasa County and to restore the said road to its original state within ninety (90) days of the court's judgement.
The petitioner prays that incase the 2nd 3rd and 4th Respondents fail to comply with order no. (ii)(b) hereinabove, the 1st 5th and 6th Respondents be directed to demolish all and every structure and development erected and built on the said access road in Shanzi settlement scheme within Mombasa County including restoring the land to its original state and the cost incurred in the exercise be met by the 2nd , 3rd and 4th Respondents and that the 1st, 5th and 6th Respondents to file an affidavit in this court within 120 days of this court's judgment detailing the status of the access road herein referred to as the suit property in respect to compliance with prayer no.(ii)(b) & (ii)(c) herein above.
Lastly, that the Honourable court awards general damages to Mama Nasanga Nsajja Jane as against the 2nd 3rd 4th 5th and 6th Respondents for the inconvenience caused, compelling the respondents to bear the cost of this suit.
PRELIMINARY OBJECTION BY 2ND -4TH RESPONDENTS
The 2nd – 4th respondents filed a notice of Preliminary Objection stating that this Honorable Court lacks jurisdiction to entertain, hear and determine both the application and Petition since the Petitioner is bereft of Locus standi to institute and prosecute this Petition.
The 2nd to 5th respondents contend that in the absence of Mama Nasanga Nsajja Jane, the purported victim, or any statement or affidavit from Jane and/or member(s) of the public, the Petition cannot be sustained under public interest litigation;
The respondents argue that the Application and the Petition are founded on falsehood and are an abuse of the court process.
The respondents urge that this is a boundary dispute between parties that is disguised as a constitutional petition.
The Petition discloses no reasonable cause of action against the 2nd 3rd and 4th Respondent and the same is frivolous and a waste of court time and the same should be dismissed with costs to the 2nd 3rd and 4th Respondents.
The Petition violates the doctrine of exhaustion.
The suit is bad in law, incurably defective and the same should be dismissed with cost to the respondents herein.
PRELIMINARY OBJECTION BY THE 1ST RESPONDENTS
The 1st respondent filed a Preliminary Objection whose gist is that this honourable Court lacks Jurisdiction to entertain this matter and the petitioner's suit violates the Doctrine of exhaustion.
That the said suit and/or petition discloses no reasonable cause of action 5th and 6th Respondent and same is premature, Non -starter in law, scandalous and/or frivolous or vexations and (he same is an abuse of the process and same should be dismissed with costs to Respondent.
That the entire suit is misconceived both in law and facts tainted with false hood and as such is an abuse of the process of court and the said suit ought to be dismissed with costs to the Respondent,
That the Suit is flawed and cannot proceed due to specific provisions of the law more specifically the available alternative dispute mechanisms under county law and in absence of such, the suit ought to be dismissed with costs to the 5th and 6th Respondent.
That the Suit is bad in law, incurable defective and the same is not properly before this court and is ripe for Dismissal with costs to the Respondents herein.
ANALYSIS AND DETERMINATION
The two Preliminary Objections basically raise issues that the petitioner lacks standing, the petition is against individuals who cannot be sued, and offends the principle of exhaustion.
On locus standi, Articles 22 and 258 of the Constitution empower any person to institute court proceedings claiming that a right in the Bill of Rights has been denied, violated, or infringed. This includes acting on behalf of others who cannot act in their own name, acting as a member of/in the interest of a group, or acting in the public interest. In Public Interest Litigation like the one before me, the courts in Kenya have adopted a flexible approach, allowing public-spirited individuals or NGOs to bring cases related to environmental protection, human rights, and constitutional violations, even if they are not personally aggrieved.
The Black’s Law Dictionary, 9th Edition at page 1026 locus standi as: -
“The right to bring an action or to be heard in a given forum”
The promulgation of Constitution 2010 gave the concept of locus standi a wider meaning vide Article 3(1) as read with Articles 22 and 258 of Constitution 2010. The said provisions allow every person the leeway to defend Constitution 2010 and to institute Court proceedings to protect a right or fundamental freedom or Constitution 2010 itself.
In Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & another [2016] eKLR the Court while referring to The matter of Ms. Priscilla Nyokabi Kanyua vs. Attorney General & Interim Independent Electoral Commission Nairobi HCCP No. 1 of 2010 held as follows: -
…In Kenya the Court has emphatically stated that what gives locus standi is a minimal personal interest and such interest gives a person standing even though it is quite clear that he would not be more affected than any other member of the population….
In Khelef Khalifa El-Busaidy v Commissioner of Lands & 2 others [2002] eKLR the Court discussed locus standi thus: -
…for an individual to have a locus standi, he must have an interest either vested or contingent in the subject matter before the court, which interest must be a legal one. Such interest must be above that of other members of the public in general.
The Court of Appeal in Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR settled the issue of locus standi in constitutional Petitions in the following manner: -
“(28) It still remains to reiterate that the landscape of locus standi has been fundamentally transformed by the enactment of the constitution in 2010 by the people themselves. In our view, the hitherto stringent locus standi requirements of consent of the Attorney General or demonstration of some special interest by a private citizen seeking to enforce a public right have been buried in the annals of history. Today, by dint of Articles 22 and 258 of the constitution, any person can institute proceedings under the Bill of Rights, on behalf of another person who cannot act in their own name, or as a member of, or in the interest of a group or class of persons, or in the public interest. Pursuant to Article 22 (3) aforesaid, the Chief Justice has made rules contained in Legal Notice No. 117 of 28th June 2013 – the Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013–which, in view of its long title, we take the liberty to baptize, the “Mutunga Rules”, to inter alia, facilitate the application of the right of standing. Like Article 48, the overriding objective of those rules is to facilitate access to justice for all persons. The rules also reiterate that any person other than a person whose right or fundamental freedom under the Constitution is allegedly denied, violated or infringed or threatened has a right of standing and can institute proceedings as envisaged under Articles 22 (2) and 258 of the Constitution.(29)It may therefore now be taken as well established that where a legal wrong or injury is caused or threatened to a person or to a determinate class of persons by reason of violation of any constitutional or legal right, or any burden is imposed in contravention of any constitutional or legal provision, or without authority of law, and such person or determinate class of persons is, by reason of poverty, helplessness, disability or socio-economic disadvantage, unable to approach the court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Articles 22 and 258 of the Constitution.(30)It is our consideration that in filing the petition the 1st respondent was acting not only on behalf of its members and in accordance with its stated mandate, but also in the public interest, in view of the nature of the matter at hand. The 1st respondent, its members and the general public were entitled to participate in the proceedings relating to the decision-making process culminating in the impugned decision.”
The upshot of the above is that the petitioner has the locus standi to file the petition on behalf of the public and disadvantaged individuals.
On the doctrine of exhaustion, it has been held by The Supreme Court of Kenya in the case of Abidha Nicholas v the Attorney General & 7 Others [2024]eKLR and which case mentioned their position in Kibos Distillers v Benson Adega and several other cases.
At paragraph 104 the decision the Supreme .Court held thus;-
“On the issue of exhaustion, this court finds that the jurisdiction to hear the petition lies squarely with the Environment and Land Court t as the issues raised of violation of property rights cannot be entertained by the Land acquisition Tribunal. Tribunals cannot determine the violation of rights and fundamental freedoms. The Supreme Court in the case of Abidha Nicholas v the Attorney General & 7 Others [2024]eKLR and which case mentioned their position in Kibos Distillers v Benson Adega and several other cases. At paragraph 104 the S.C held thus;-“Having considered the above complaints, we reiterate our earlier finding in this judgment that the mandate and jurisdiction to determine these questions lie with the ELC under Articles 22, 23(3) and 162(2)(b) of Constitution 2010 as read with Section 4(1) of the Environment and Land Act. We say so because neither the NET, EPRA nor EPT have the jurisdiction to determine alleged violations of the Constitution 2010. That right to access the court for redress of alleged constitutional violations, should not be impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedoms. We say this persuaded by the elegant reasoning in William Odhiambo Ramogi & 3 others v Attorney General & 6 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR where the High Court (Achode (as she then was), Nyamweya (as she then was), & Ogola, JJ) stated:“In the instant case, the Petitioners allege violation of their fundamental rights. Where a suit primarily seeks to enforce fundamental rights and freedoms and it is demonstrated that the claimed constitutional violations are not mere “bootstraps” or merely framed in Bill of Rights language as a pretext to gain entry to the Court, it is not barred by the doctrine of exhaustion. This is especially so because the enforcement of fundamental rights or freedoms is a question which can only be determined by the High Court.”
I do find that nature of the reliefs sought by the petitioner cannot be entertained by a tribunal as the petitioner alleges violation of the right to life of the public under Article 26(30 of the constitution of Kenya 2010. Moreover, the petitioner claims that there is a violation of the right to a clean and healthy environment inter alia which are not within the jurisdiction of the tribunals. The Preliminary Objections are not merited and are dismissed with costs to the Petitioner.