Mbesa Investments Limited v County Government of Mombasa; Bayusuf & another (Interested Parties) (Constitutional Petition 23 of 2022) [2025] KEELC 602 (KLR)
The bottom line
#Mombasa County cannot suspend a building approval without hearing the developer or giving reasons, but neighbours' privacy concerns still deserve practical fixes.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petition and Cross-Petition met the threshold for constitutional petitions
Both met the threshold, being pleaded with reasonable precision in line with Anarita Karimi Njeru
The court applied Article 259 interpretation principles and the Anarita Karimi Njeru standard as restated in Mumo Matemu, holding that the pleadings articulated the violations and reliefs sought with sufficient particularity to bring the parties to a defined issue.
Whether the Enforcement Notice of 24th June 2020 violated the Petitioner's constitutional rights
Yes; the notice was issued without hearing the Petitioner, without valid reasons, contrary to Articles 27, 40 and 47 and the rules of natural justice
The court found the Petitioner held title and approvals (change of user 2015, NEMA licence and development permission), yet the Respondent suspended the approval without consultation, without stating reasons, and before a non-existent County Liaison Committee. The Respondent and 1st Interested Party failed to discharge the burden of proving the alleged breaches of approval conditions or ownership defects on MN/I/3412.
Whether the Respondent's allegations of breach of the partial approval conditions and defective title to MN/I/3412 were proved
Not proved; the Land Registrar's letter was casual, vague and untested, and the deponent was never summoned as a witness
The court held that allegations of breach of approval conditions required empirical evidence, preferably in a full trial with oral and documentary evidence. The Registrar's letter about 'two contradicting files' was never substantiated by an official search or green card, so the ownership challenge failed for want of proof under Section 107 of the Evidence Act.
Whether the Petition was time-barred or defeated by laches
No; the suit was filed as a pure constitutional petition to which Order 53/Law Reform Act limitation did not apply, and the delay was explained by prior litigation
The court accepted the Petitioner's submission that the period 2020–2022 was spent prosecuting Petition 43 of 2020 in the High Court and the ensuing appeals, and that this Petition was filed only 10 days after the Court of Appeal struck out Petition 43 of 2020. The court applied Mitu-Bell on fashioning appropriate reliefs under Article 23(3).
Whether the 1st Interested Party's right to privacy under Article 31 was infringed
Partially; the court found a potential interference but declined demolition, instead ordering mitigating construction within 90 days
The court noted the Petitioner's admission that privacy and dust concerns were raised and mitigation offered, but held that demolition was disproportionate given the suburban character of Nyali, the lawful development and the balance between neighbouring landowners' rights. It directed the Petitioner to construct a shade/sail and safety measures at its own cost within 90 days.
Legal principles established
#- A public authority must act within the law; administrative action must have a lawful justification and may not be taken capriciously, arbitrarily or without due process
- A constitutional petition challenging an administrative action is not governed by statutory limitation periods applicable to judicial review; the court may fashion appropriate reliefs under Article 23(3)
- Where a party alleges breach of conditions of a development permission or challenges ownership, the burden of proving those allegations rests on the party alleging them
- The right to privacy of a landowner must be balanced against the right of a neighbouring land owner to use and enjoy their land within the law
Court orders
#- 1.Judgment entered in favour of the Petitioner in its entirety in accordance with the prayers sought in the Petition dated 20th June 2022
- 2.A Conservatory Order to stay the enforcement and implementation of the Enforcement Notice dated 24th June 2020 suspending Approval Ref Number CP/AAA/2628
- 3.A declaration that the Respondent has violated the Petitioner's rights under Articles 27, 43 and 47 of the Constitution
- 4.A declaration that the Enforcement Notice dated 24th June 2020 by the Chief Officer suspending Approval Ref. Number CP/AAA/2628 indefinitely is null and void
- 5.An Order of Certiorari to quash and suspend the Enforcement Notice dated 24th June 2020
- 6.An Order of Prohibition and Permanent Injunction restraining the Respondent from suspending Approval Ref Number CP/AAA/2628 and/or interfering with works on Plots MN/I/3412, MN/I/5503 & MN/I/5504
- 7.The Cross-Petition partially allowed: the Petitioner directed within 90 days at its own costs to construct a properly designed shade/sail around the 1st Interested Party's swimming pool by a qualified Architect and to construct precautionary safety measures (hood and perimeter wall) to prevent infringement of the 1st Interested Party's privacy and the spread of dust or pollution
- 8.Each party to bear their own costs
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act, Section 93 of the Physical and Land Use Planning Act (No. 13 of 2019) and Articles 22, 47 and 70 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbesa Investments Limited v County Government of Mombasa; Bayusuf & another (Interested Parties) (Constitutional Petition 23 of 2022) [2025] KEELC 602 (KLR)", Case Analysis (2025). Constitutional Petition dated 20th June 2022 (ELC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/602/eng@2025-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.