Wagitaha Holdings Limited v Haldoor Real Estate Limited & 2 others (Environment and Planning Civil Case E003 of 2023) [2025] KEELC 4405 (KLR)
The bottom line
#A Nairobi court cancelled building approvals granted without proper neighbour consultation, halted construction, and confirmed that even demolishing a house requires permits.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st defendant's works on the suit property required the necessary approvals
- 2.Whether there was public participation undertaken before the impugned licences were issued
- 3.Whether there was damage to the plaintiff's property
- 4.Whether the plaintiff should be awarded the reliefs sought
- 5.Who should bear costs of the suit
Key legal issues
#Whether the 1st Defendant's demolition and excavation required approval
Demolition and excavation amounted to development under PLUPA; no permission had been obtained, so the 1st Defendant acted in contravention of the law
PLUPA 2019 defines development as carrying out any works on land or making any material change in the use of structures on the land. Demolishing the existing house and excavating beyond mere topsoil removal amounted to a material change. Section 57 of PLUPA prohibits development without permission from the county executive committee member. The 1st Defendant admitted demolishing the house and excavating before obtaining any permit, contravening the law.
Whether there was sufficient public participation before the change of user and development approvals
The change of user approval was irregularly issued and null and void for want of notification of the public, and public participation for the EIA licence was neither quantitative nor qualitative
Sections 58(7) and (8) of PLUPA require notification of the public inviting objections to the county executive committee member. The 1st Defendant produced no newspaper or onsite advertisement, and the 3rd Defendant produced no evidence of sharing the application with relevant agencies under section 60(1) nor the housing policy relied upon. The single meeting of 7th September 2023 was convened to address complaints, not as EIA public participation; there was no evidence of any other engagement.
Whether the plaintiff proved damage to its property and entitlement to damages
Structural damage not proved; general damages of Kshs.100,000 awarded for inconvenience; special damages of Kshs.400,000 dismissed for want of proof
Photographs showed exposed foundation walls given the beacon-to-beacon excavation, but no evidence established interference with the structural strength of the plaintiff's building. The claim could only lie on nuisance, which was not pleaded. However, since the excavation was unapproved and the plaintiff unnotified, general damages of Kshs.100,000 were awarded for the inconveniences suffered. Special damages were not specifically proved as no evidence showed the premises was ever let.
Whether permanent and mandatory injunctions should issue
Mandatory injunction compelling revocation of the approvals granted; permanent injunction restraining development until lawful change of user obtained
The court found no sufficient and credible public participation before approving the development, and held the plaintiff proved its case challenging the approval procedure. The impugned licences had to be revoked so the 1st Defendant could follow due process. Yet, balancing the 1st Defendant's Article 40 property rights, the permanent injunction was limited to restraining development until lawful change of user was obtained.
Legal principles established
#- Demolition of an existing house and excavation constitute development requiring development permission under section 57 of PLUPA
- Public participation must be both quantitative and qualitative, and casual engagement falls short of the constitutional standard
- A permanent injunction restraining a proprietor from developing their own property can only issue for a limited period pending compliance with development control laws
Court orders
#- 1.A mandatory injunction compelling the 2nd and 3rd Defendants to revoke the approvals for change of user and EIA licence in respect of Property Number Nairobi/Block 1X4/X2 due to lack of proper public participation
- 2.A permanent injunction restraining the 1st Defendant from continuing with construction works or development on the Property Number Nairobi/Block 1X4/X2 until it obtains the change of user in accordance with the law
- 3.General damages to the plaintiff of Ksh.100,000/= for the inconveniences suffered due to the irregular activities by the 1st Defendant
- 4.Costs of the suit to the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property Nairobi/Block 1X4/X2 and development control disputes
Relief refused
#Special damages for loss of rental income of Kshs.400,000
Not specifically proved; no evidence the premises had ever been rented out
General damages for interference with structural integrity of the plaintiff's property
No material evidence that the structural strength of the plaintiff's building was interfered with
Permanent injunction in absolute terms against the 1st Defendant's development
The 1st Defendant's proprietary rights under Article 40 allow the injunction only for a limited period pending compliance with development control laws
Costs
Costs of the suit to the Plaintiff
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
A mandatory injunction be and is hereby issued compelling the 2nd and 3rd Defendants to revoke the approvals for change of user and EIA license in respect of the Property Number Nairobi/ Block 1X4/X2 due to lack of proper public participation.
An order of permanent injunction is hereby granted restraining the 1stDefendant from continuing with construction works or development on the Property Number Nairobi/ Block 1X4/X2 along Mukunga Road, Pangani Ward, Starehe Sub County —Nairobi City County whatsoever until it obtains the change of user in accordance with the law.
General damages to the plaintifi of Ksh.100,000/= for the inconveniences sufiered due to the irregular activities by the 1st Defendant.
Cost of the suit to the Plaintifi.
It is my considered opinion that demolishing an existing house is a form of development since after the demolition, the place would not exist in its original form and as well as dangers associated with such.
Thus, the public participation was not quantitative and qualitative.
the impugned licences must be revoked for the 1st Defendant to follow due process.
Issues in the judgment
#The judgment is not dated as a whole within the body; the delivery date appears only in the coram line and the case number/neutral citation are not printed in the extract provided.
Judgment first states the plaintiff proved its case challenging the procedure of granting approvals but simultaneously finds the plaintiff did not prove damage, producing a mixed outcome on the reliefs.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kassam & 12 others v Exotic Real Estates Limited & 12 others (Environment and Planning Petition E002 of 2024) [2026] KEELC 3221 (KLR)[2026] KEELC 3221 (KLR)28 May 2026
Cite this brief
#Cite this brief
Caselaw, "Wagitaha Holdings Limited v Haldoor Real Estate Limited & 2 others (Environment and Planning Civil Case E003 of 2023) [2025] KEELC 4405 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4405/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.