Kilonzo t/a Kokomo Beach Bar and Restaurant & another v County Executive Committee Member for Lands, Physical Planning, Housing and Urbanization & another; Lion Beach Resort (Interested Party) (Environment and Land Petition E013 of 2024) [2025] KEELC 6025 (KLR)
The bottom line
#A Kenyan court ruled a beach business built illegally on riparian land could face demolition, but the county government acted unfairly by not serving notice or offering a hearing first.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition was res judicata Malindi Miscellaneous Application No. 1 of 2024
The petition was not res judicata; the earlier miscellaneous application did not involve determination of constitutional rights and this petition substantively resolves the issues inter partes
The court noted the earlier application was decided ex parte after service, without the petitioners' full participation, and raised no issue of violation of constitutional rights. The present weighty constitutional petition overtakes that proceeding and substantively resolves the dispute. The same contention had been dismissed in the ruling of 25th February 2025.
Whether the petitioners breached the law by constructing on riparian reserve land
Yes - they breached Section 57(1) PLUPA (no development permission), failed to obtain authority from the National Land Commission over public land under Article 62, and failed to conduct an environmental impact assessment under Section 58 EMCA
The riparian reserve is public land vested in the county and administered by the NLC. KWS authorization to a third party did not confer development rights; no development permission was sought from the county; no NLC consent was obtained; and the massive investment of over Kshs 185 million belied any claim of a temporary structure. An EIA was also required.
Whether the respondents violated the petitioners' rights to fair administrative action (Article 47) and fair hearing (Article 50)
Yes - the enforcement notice, invitation to consultative meeting and demolition order were never proved to have been served on the petitioners, denying them a hearing and the appeal mechanism under Section 72(3)-(4) PLUPA
Service is a matter of proof; no affidavit of service or acknowledgment was exhibited. Although the petitioners were themselves in breach, natural justice requires that no person be condemned unheard. The licensing of the business meant the county knew of and had condoned the location, so it should have engaged the petitioners before enforcement. A declaration of violation issued, with nominal damages.
Whether handing the enforcement notice and demolition order to the interested party amounted to collusion, bias or discrimination
No - the interested party was genuinely aggrieved as a first-row beach owner whose ocean view was obstructed, and had constitutional and statutory standing to report and enforce environmental law; no evidence of malice or collusion was adduced
Articles 69(2) and 70 and Section 3(4) EMCA empower any person to assist state organs and approach court on environmental violations without showing personal loss. Taking the interested party's complaint as collusion would discourage citizens from environmental conservation. The collusion and discrimination claims failed for want of evidence.
Whether the demolition order could only issue after prosecution and conviction
No - Section 57 PLUPA prescribes alternative penalties; the CEC may elect to prosecute or enforce by restoration/demolition
The court held that prosecution is not mandatory in all circumstances; the respondents may assess the circumstances and elect enforcement by demolition, ideally after exhausting Section 72(3) mechanisms. The petitioners' argument that demolition required prosecution and conviction was rejected.
Legal principles established
#- A business permit is not a substitute for development permission under the Physical and Land Use Planning Act.
- Fair administrative action under Article 47 and fair hearing under Article 50 apply even to persons acting unlawfully; administrative bodies must accord a hearing before enforcement action.
- Service of an enforcement notice under Section 72 PLUPA is a matter of proof; without it, issuance of a demolition order is incompetent.
- A county executive committee member is not compelled in all circumstances to prosecute; enforcement by demolition is a lawful alternative where statutory mechanisms are exhausted.
- Article 40 protection of property does not extend to illegally acquired property or structures illegally erected on public riparian land.
Court orders
#- 1.Declaration that the respondents' omissions to grant the petitioners fair administrative action and a fair hearing prior to the issuance of the enforcement notice and demolition order violated the petitioners' rights under Articles 47(1) and 50(1) of the Constitution
- 2.The respondents shall pay the petitioners Kenya Shillings 100,000/- as nominal damages for violation of their constitutional rights
- 3.The respondents shall, upon submission of original receipts, refund to the petitioners Kshs 98,000/= paid for renewal of a business permit for which no permit was issued
- 4.No interest shall be payable on the decretal sums in (b) and (c)
- 5.The respondents shall forthwith comply with the relevant laws and the Constitution in dealing with the petitioners' structure
- 6.The petitioners, the respondents and the interested party shall each bear their own costs of the petition
- Jurisdiction invoked
- Articles 47, 50 and 40 of the Constitution of Kenya 2010; Physical and Land Use Planning Act 2019 (constitutional petition for violation of fundamental rights)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kilonzo t/a Kokomo Beach Bar and Restaurant & another v County Executive Committee Member for Lands, Physical Planning, Housing and Urbanization & another; Lion Beach Resort (Interested Party) (Environment and Land Petition E013 of 2024) [2025] KEELC 6025 (KLR)", Case Analysis (2025). Malindi ELC Petition (dated 2/9/2024) - Petition of 2nd September 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6025/eng@2025-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.