Coral Pearl Executive Apartments Limited & another v County Government of Mombasa & 2 others (Constitutional Petition 32 of 2021) [2024] KEELC 1231 (KLR)
The bottom line
#Mombasa's Environment and Land Court stopped the county government and police from blocking or prosecuting a developer whose building approval they could not prove was breached.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition met the constitutional petition threshold
The Petition complied with the Anarita Karimi Njeru threshold, pleading with reasonable precision the rights violated and the manner of violation
The court applied Anarita Karimi Njeru and Mumo Matemu, holding that despite general allegations of breach of Articles 3, 10, 19, 20, 28, 47, 50, 157 and 244, the Petitioners had dutifully complied with the threshold of reasonable precision in pleadings for instituting the Petition and for the prayers sought.
Whether the Petitioners' fundamental rights and freedoms were infringed
A violation of the Petitioners' legal and constitutional rights was demonstrated, entitling them to all reliefs sought
The court found the Respondents failed to act accountably, interfering with property rights under Articles 10, 40 and 47 without lawful justification, and that every act of government power affecting legal rights must be shown to have a strictly legal pedigree; the Respondents' actions lacked such a pedigree.
Whether the approval limited the number of floors to seven
The approval drawings did not specify the number of floors and the Respondents bore the burden of proving the approved number of storeys
The court perused the approved drawings, found none specified the number of floors, noted the Respondents were the custodians of records and had been invited to produce empirical evidence of the approved storeys but failed, so the insistence on a 7-floor limit was conjecture under Section 107 of the Evidence Act.
Whether the criminal prosecutions should be quashed
The criminal process was being used improperly and prayers for declaration, certiorari and prohibition against the criminal proceedings must succeed
Relying on Kuria v Attorney General, Ganijee and Kipngeno Arap Ngeny, the court held a prosecution mounted without proper factual foundation or for ulterior purpose is an abuse of process; the Respondents produced no affidavits from complainants and the criminal process was being used to further civil disputes, warranting halting of the prosecutions.
Whether permanent injunction should issue restraining interference with the development
Having established their claim, the Petitioners were entitled to the permanent injunction and prohibition restraining interference with the development
Distinguishing temporary from permanent injunctions, the court held a permanent injunction is granted on the merits after evidence; since the Petitioners had established their claim, the prayer for prohibition and permanent injunction restraining interference with the apartment development was allowed.
Legal principles established
#- A public authority must act within the four corners of the law whenever it takes any administrative or executive action, and no action should be taken capriciously, arbitrarily and without due process
- Where a public authority is the custodian of records and fails to present evidence to substantiate its claim of illegality, the claim fails
- The court has power and duty to halt criminal proceedings brought for ulterior motives notwithstanding the DPP's constitutional prosecutorial powers
Court orders
#- 1.A declaration that the Respondents' actions of stopping the 1st Petitioner's development and prosecuting the 2nd Petitioner and the 1st Petitioner's workers are inconsistent with and in contravention of the Constitution of Kenya 2010 and the law
- 2.A declaration that the criminal charges levelled against the 2nd Petitioner, Humphrey Kamandi, Benjamin Ochieng and Gabriel Okumu in Mombasa County Court Criminal Case No. M 079 of 2021 and Criminal Case No. M. 265 of 2021 are illegal, null and void
- 3.An order of certiorari removing into the court and quashing the criminal proceedings in Mombasa County Court Criminal Case No. M 079 of 2021 and Criminal Case No. M. 265 of 2021
- 4.An order of prohibition and permanent injunction restraining the Respondents from stopping or interfering with the development of CORAL PEARL EXECUTIVE APARTMENTS on L.R.No.MN/1/5222 situate in Nyali off Links Road in Mombasa County
- 5.The Petition filed by the Petitioners dated 21st July, 2021 found to be meritorious and allowed in its entirety
- 6.The injunctive orders made on 24th October, 2022 are vacated
- 7.Costs awarded to the 1st and 2nd Petitioners to be borne by the 1st, 2nd and 3rd Respondents jointly and severally
- Jurisdiction invoked
- Article 165(2)(d)(ii) of the Constitution of Kenya 2010
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) [2024] KEELC 1231 (KLR)", Case Analysis (2024). Constitution Petition dated 21st July, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1231/eng@2024-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.