Coral Pearl Executive Apartments Limited & another v County Government of Mombasa & 2 others (Constitutional Petition 32 of 2021) [2022] KEELC 3000 (KLR)
The bottom line
#A Mombasa court halted a Nyali apartment construction and threw out the developer's emergency orders, ruling that building disputes belong in ordinary civil suits, not constitutional petitions.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition met the Anarita Karimi Njeru threshold of precision
The court was not satisfied that the Petitioners pleaded the alleged violations of Articles 3, 10, 19, 20, 28, 47, 50, 157 and 244 with reasonable precision, and directed conversion of the Petition into an ordinary suit (Plaint)
Relying on Anarita Karimi Njeru as restated in Mumo Matemu, the court held that constitutional violations must be pleaded with particularity. The Petition made only general allegations of breach without specifying the provisions infringed, the manner of infringement, or the nature of the harm. Pleadings give fair notice of the issues in controversy; since the issues (number of floors approved, authenticity of drawings) required documentary proof, the proper vehicle was a plaint, not a constitutional petition.
Whether conservatory orders could issue to restrain the Respondents from interfering with the construction
No prima facie case was established; the dispute concerned private proprietary interests in land, and the petitioners' private interest was outweighed by the public interest in protection against potentially faulty buildings
Applying Sakwa, Munya and the Judicial Service Commission case, the court observed that conservatory orders bear a public-law connotation and protect against rights violations, whereas private proprietary interests are preserved through interlocutory injunctions under Order 40 of the Civil Procedure Rules. On the evidence, the application form and structural drawings suggested approval only up to the 7th floor with a penthouse, and the petitioner bore the onus of demonstrating the number of floors approved; that could not be resolved on affidavit at the interlocutory stage.
Whether the number of floors approved in the 11th July 2018 development permission was limitless
The court rejected the claim that the approval did not limit the number of floors, holding that an approving authority can only approve a specific number of stories, and put the onus on the Petitioner to prove how many floors were allowed
From the PPA-2 notification of approval and the application particulars, the court found no precision on floors in the notification but noted the structural drawings (PM-3B) showed approval up to the 7th floor and a penthouse. It found the petitioners' claim treacherous, observing that a seven-storey building bears different loading from a nine-storey building, and that the issue required empirical documentary evidence in a suit, preferably a plaint, not mere affidavits.
Legal principles established
#- A constitutional petition must plead the provisions said to be infringed, the manner of infringement, and the relief sought with a reasonable degree of precision
- Conservatory orders are public-law remedies in rem, not interlocutory injunctions protecting private rights; they are granted on the inherent merit of the case bearing in mind public interest and constitutional values
Court orders
#- 1.The Notice of Motion application dated 21st July 2021 is unmerited and is dismissed with costs to the 1st and 2nd Respondents
- 2.The Petitioner to table before Court within 30 days a Design Report of the building of Coral Pearl Executive Apartments on Plot No MN/1/5222 from Nyali Consulting Engineers, the structural engineers who designed the apartment drawings, for approval
- 3.The Petitioner to forthwith stop all on-going development and construction of the Proposed Coral Pearl Executive Apartments on Plot No MN/1/5222 until the case is heard and determined
- 4.The Petitioner to convert the main Petition dated 21st July 2021 into a Plaint within 30 days, and the 1st and 2nd Respondents' Replying Affidavits into a Statement of Defence
- 5.Mention on 21st June 2022 for ascertaining compliance, holding of Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010 and taking a hearing date on priority basis
- Jurisdiction invoked
- Article 23 of the Constitution of Kenya, 2010 and Articles 159(1) and (2); Sections 3 and 13 of the Environment and Land Court Act, No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Coral Pearl Executive Apartments Limited & another v County Government of Mombasa & 2 others (Constitutional Petition 32 of 2021) [2022] KEELC 3000 (KLR)", Case Analysis (2022). Constitutional Petition (Notice of Motion dated 21st July 2021), Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3000/eng@2022-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.