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Court of AppealDismissedNot stated in the judgment

Mwadzaya v County Government of Kilifi & another (Civil Appeal 46 of 2019) [2025] KECA 869 (KLR)

Court of Appeal of Kenya
23 May 2025
1,534 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to protect a building developed without county approval, confirming that courts won't grant injunctions to people breaking planning laws.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Mombasa against the dismissal by the High Court of a suit by the registered allottee of Plot No. 8, Mariakani Town (LR. 11492/350), who had sought injunction and certiorari orders to restrain a 14-day demolition notice issued by the respondents on the ground that the buildings encroached into a road reserve. The trial judge found that although the appellant had shown the buildings did not encroach into the road reserve, he had admitted developing the property without approval, contrary to section 30(a) of the Physical Planning Act, and being an equitable remedy, an injunction could not issue to a party in breach; the suit was dismissed with each party bearing its own costs. The appellant argued on appeal that the judge decided the suit on unpleaded, unproven matters, failed to evaluate the uncontroverted survey evidence, and misdirected himself on the reliefs. The Court, composed of Musinga, Gatembu Kairu and Murgor JJA in a single unanimous judgment, held that the reasons for dismissal were before the court and conceded by the appellant, and dismissed grounds 1, 2 and 3. Applying Mbogo v Shah, it found no basis for interfering with the judge's discretion. The appeal was dismissed in its entirety with the appellant bearing the costs of the appeal. The Court apologised for inordinate delay in delivering the judgment, which had been heard on 26th November 2019 but inadvertently not delivered until 23rd May 2025 due to court closures in the Covid-19 pandemic and an oversight.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge dismissed the appellant's suit on issues and matters that were not before the court for consideration and on which no evidence had been led
  2. 2.Whether the learned judge failed to evaluate and analyse the uncontroverted evidence that the suit property was not on a road reserve
  3. 3.Whether there is any basis for interfering with the exercise of discretion by the learned judge with regard to the reliefs sought

Key legal issues

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01

Whether the trial judge determined the suit on matters not pleaded or proved

Holding

The appeal grounds alleging that the judge decided the suit on unpleaded issues failed, because the reasons for dismissal were squarely before the court and conceded by the appellant himself.

Reasoning

The appellant conceded in evidence that he developed the suit property without written approval of the second respondent, contrary to section 30(a) of the Physical Planning Act. Since the judge's reasons rested on that concession, the claim that a new cause of action was introduced without pleading or evidence was unfounded. Grounds 1, 2 and 3 were accordingly dismissed.

p. 3
02

Whether an appellate court may interfere with the trial judge's discretion to refuse an injunction

Holding

No; the appellant failed to show that the judge misdirected himself, and the Mbogo v Shah principles therefore precluded interference with the discretionary refusal of an equitable remedy.

Reasoning

Citing Mbogo & Another v Shah, the Court reaffirmed that an appellate court will only interfere with discretion where it is clearly wrong because the judge misdirected himself or acted on wrong considerations. The appellant had admitted developing the buildings without approval, and equity would not sanction that breach by granting an injunction. No misdirection was demonstrated.

p. 4
03

Compliance with section 30(a) of the Physical Planning Act as a precondition to equitable relief

Holding

A plaintiff who develops property without development permission cannot obtain an injunction, as granting it would sanction his breach of the statute.

Reasoning

The appellant admitted he never obtained written approval for the developments, having only alleged verbal approval. The trial judge found it difficult to justify an injunction for a party who failed to comply with the mandatory development-permission requirement, and the Court of Appeal endorsed that reasoning as properly grounded in the pleadings and the concession.

p. 3

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by a trial judge unless it is satisfied that the judge misdirected himself, acted on matters he should not have acted upon, or failed to consider relevant matters, and as a result there has been misjustice.
  • No development may be carried out within the area of a local authority without development permission granted by the local authority under section 33 of the Physical Planning Act, and a party in breach of that mandatory provision cannot claim an equitable remedy such as an injunction.
  • Where the reasons for dismissal of a suit arise from facts conceded by the plaintiff at trial, the suit cannot be said to have been dismissed on issues that were not before the court.

Court orders

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  1. 1.Grounds 1, 2 and 3 of the appeal dismissed
  2. 2.The appeal dismissed in its entirety
  3. 3.The appellant to bear the costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court (not explicitly stated; the decision was by 'the learned judge')
Jurisdiction invoked
Not expressly stated; appellate jurisdiction of the Court of Appeal over a decision of the High Court (implied by Article 164(3) of the Constitution / first appeal from the High Court).

Relief refused

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Injunction and certiorari against the demolition notice (the reliefs sought in the suit)

The trial judge, in the exercise of judicial discretion, declined to grant an equitable remedy to a party who had developed the suit property without the required development permission, and the Court of Appeal found no basis to interfere with that discretion.

p. 4

Costs

The appellant shall bear the costs of the appeal. (The trial court had ordered each party to bear its own costs of the suit.)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

All in all, we find this appeal lacking in merit and dismiss it in its entirety. The appellant shall bear the costs of the appeal.
p. 4Final orders - dismissal of the appeal
In the circumstances, it cannot be said that the trial court dismissed the appellant’s suit on issues that were not before the court for consideration. The reasons for the dismissal of the suit were properly before the court and were conceded by the appellant.
p. 3Determination on unpleaded issues ground
It is trite law that an appellate court should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been misjustice.
p. 3Non-interference with judicial discretion (Mbogo v Shah)
Granting the orders sought herein would be tantamount to sanctioning the plaintifi’s breach of the relevant provisions of the Physical Planning Act.
p. 3Denial of equitable relief to a party in breach of statutory development-permission requirements

Issues in the judgment

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minor

The parties' names, the case number and the trial court decision details are not stated in the judgment as provided; the appellant is referred to only as 'the appellant' and the respondents as 'the respondents', which limits the identifiability of this brief.

minor

The judgment does not state the constitutional or statutory basis for the appeal to the Court of Appeal.

minor

The coram listing describes D. K. Musinga as 'JUDGE OF APPEAL (PRESIDENT)' without a rank abbreviation such as 'P' being used in a formal way; he is recorded here as JA (President).

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, "Mwadzaya v County Government of Kilifi & another (Civil Appeal 46 of 2019) [2025] KECA 869 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/869/eng@2025-05-23

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