Ali & 2 others v Stay City Apartments Limited & 3 others (Constitutional Petition E017 of 2023) [2024] KEELC 3881 (KLR)
The bottom line
#A Mombasa court stopped construction of a Mombasa apartment block until trial, ruling developers cannot build before approvals and genuine public participation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioners established a prima facie case for conservatory orders
A prima facie case was established; the development commenced before approvals and without effective public participation, threatening the right to a clean and healthy environment
The Court weighed pleadings, facts and law preliminarily. The 4th Respondent supported the Petitioners that the development was started before approval and remained illegal; the 2nd and 3rd Respondents filed no responses and did not dispute the assertions. The Court found no record of sufficient public participation and noted the larger public interest in ensuring approvals precede projects and environmental rights are guaranteed, hence conservatory orders were warranted.
Whether the conservatory orders of 12th July, 2023 could be discharged
No; the Court would not disturb its earlier orders absent demonstration of irreparable injury to the applicant
Article 23(3) affords parties avenues for relief, but the Court had satisfied itself a prima facie case existed when issuing the orders. Trite law requires satisfaction that the applicant would be irreparably injured before disturbing conservatory orders, and public interest favoured protecting constitutional rights. The 1st Respondent's application instead delayed the expedited main petition.
Whether security for costs of Kshs. 43,050,000/- should issue in a constitutional petition
Security for costs was refused; the 1st Respondent made only general allegations and did not prove inability to pay, and the sum claimed was in substance a damages claim
Security for costs under Order 26 Rule 1 is discretionary and must be exercised judiciously. The applicant bears the burden of proving inability to pay costs and a bona fide defence. No evidence of deposits or withdrawals was demonstrated beyond sale agreements, and the Kshs. 43,050,000/- was already claimed by cross-petition as damages, making the application a disguised claim for damages. Ordering security would be unreasonable, unfair and inequitable.
Who bears costs of both applications
Costs follow the event under Section 27(1) of the Civil Procedure Act and were awarded to the Petitioners
The Court applied the established principle that costs are discretionary and follow the outcome of proceedings, citing Supreme Court authority. Having succeeded in the conservatory application and defeated the security application, the Petitioners were entitled to the costs of both motions.
Legal principles established
#- Conservatory orders preserve the substratum of a petition and are public-law remedies in rem, not private interlocutory injunctions
- Public participation must be real and not illusory, cosmetic or a mere formality
- An applicant for security for costs must prove inability to pay costs; a mere allegation is insufficient
Court orders
#- 1.The Notice of Motion Application dated 27th June, 2023 is found to have merit and is allowed entirely
- 2.The Notice of Motion dated 3rd November, 2023 is found to lack merit and is dismissed
- 3.Conservatory orders in the form of a temporary injunction issue restraining the 1st Respondent from proceeding with or carrying out excavating or construction activities on property known as Mombasa/Block XXVI/361 pending the hearing and determination of the Petition
- 4.The main Petition to be heard and disposed of on 30th September, 2024 through written submissions, with the Petitioners granted 21 days and the 1st, 2nd & 3rd Respondents 14 days to file and serve written submissions, and a mention on 20th May, 2024 for highlighting submissions and taking a judgment date
- 5.A site visit (Locus in Quo) to be conducted on 20th May, 2024 at 3.00pm in accordance with Order 18 Rule 10 and Order 40 Rule 10 of the Civil Procedure Rules, 2010, with parties to make prior security arrangements through the Coast County Commander
- 6.Costs of both Notices of Motion awarded to the Petitioners
- Jurisdiction invoked
- Articles 22, 23 and 258 of the Constitution of Kenya, 2010; Rules 10 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali & 2 others v Stay City Apartments Limited & 3 others (Constitutional Petition E017 of 2023) [2024] KEELC 3881 (KLR)", Case Analysis (2024). Constitutional Petition (Mombasa ELC) - Notice of Motion dated 27th June, 2023 and Notice of Motion dated 3rd November, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3881/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.