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ELCPartially AllowedNotice of Motion dated 26th February 2025 (Petition, Mombasa)· [2025] KEELC 6219 (KLR)

Abdalla & 6 others v Khansa Developers Limited & 3 others (Constitutional Petition 16 of 2022) [2025] KEELC 6219 (KLR)

Environment and Land Court
25 September 2025
2,154 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Mombasa court found a developer and its directors guilty of defying court orders and stopped all construction until they fully comply with environmental requirements.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (J.O. Olola, J) determines a Notice of Motion dated 26th February 2025 by seven Petitioners seeking a temporary injunction restraining Khansa Developers Limited from continuing construction on plot Mombasa/Block XXVI/595, and seeking citation of the developer's directors, the Director of Physical Planning at the County Government of Mombasa and the Director General of NEMA for contempt of the court's Ruling of 30th April 2024. That Ruling had set aside an earlier judgment on conditions: reduction of the development from 18 to 16 floors, a fresh EIA under Section 58 of EMCA, new development plans by the County, and fresh applications for development approvals. The 1st Respondent opposed, alleging the Petitioners had not proven ownership and asserting good-faith compliance; the 2nd, 3rd and 4th Respondents did not respond. The court restated that contempt requires proof of the terms of the order, knowledge of them, and willful non-compliance, to a standard higher than balance of probabilities but not beyond reasonable doubt, citing Mutitika v Baharini Farm and the Ahmad Aboltathi decision. Although the director affirmed compliance, no fresh EIA or fresh development approvals were exhibited, and a National Construction Authority Suspension of Work Order of 7th February 2025 showed construction was ongoing. The court found the 1st and 2nd Respondents in willful breach, enjoined further development, found the 1st Respondent's directors guilty of willful disobedience, and summoned them for mitigation and sentencing on 22nd October 2025. Contempt was not established against the 3rd and 4th Respondents for lack of proof of knowledge. Costs were awarded against the 1st Respondent.

Key legal issues

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01

Whether the 1st Respondent was in willful contempt of the orders of 30th April 2024

Holding

Yes - it resumed construction without obtaining a fresh EIA or fresh development approvals as directed

Reasoning

The court reviewed the conditions set in its Ruling of 30th April 2024, which required a fresh EIA and fresh development approvals before continued development. The 1st Respondent's director averred compliance but exhibited no fresh EIA Report or fresh applications for approvals. A Suspension of Work Order from the National Construction Authority dated 7th February 2025 showed construction was ongoing and non-compliant. The court concluded the construction was in total and willful disregard of the orders.

p. 5
02

Whether the 3rd and 4th Respondents were liable for contempt

Holding

No - knowledge of the orders was not proven

Reasoning

Although the court was persuaded that the 3rd and 4th Respondents had not done their part, the orders of 30th April 2024 were issued in their absence and in an application in which they did not participate. Since proof of knowledge of the terms of the order is an essential element of contempt, and no evidence of such knowledge was placed before the court, contempt could not be established against them.

p. 5
03

Whether a temporary injunction should issue pending compliance

Holding

Yes - against the 1st and 2nd Respondents

Reasoning

Having found the 1st and 2nd Respondents had contravened the orders regarding resumption of construction, the court was persuaded that they should be restrained from further development until full compliance with the conditions in the Ruling of 30th April 2024, including the fresh EIA, new development plans and fresh development approvals.

p. 5

Legal principles established

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  • In civil contempt proceedings the applicant must prove the terms of the order, the respondent's knowledge of those terms, and willful failure to comply
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt

Court orders

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  1. 1.A temporary order of injunction restraining the 1st and 2nd Respondents from proceeding with any further developments on Mombasa/Block XXVI/595 until full compliance with the conditions in the Ruling of 30th April 2024
  2. 2.The directors of the 1st Respondent found guilty of willful disobedience of the court's orders of 30th April 2024
  3. 3.Summons issued to the directors to appear on 22nd October 2025 for mitigation and sentencing
  4. 4.Costs of the application borne by the 1st Respondent

Authorities

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Legislation

  • Environmental Management and Co-ordination Act (EMCA)Section 58(1)
  • Constitution of Kenya, 2010Articles 10, 40, 42, 47, 67, 69 and 70
  • National Construction Authority Actnull

Cases cited (2)

  • Mutitika –vs- Baharini Farm Limited
    (1985) KLR 229
  • Republic –vs- Ahmad Aboltathi Mohamed & Another
    (2019) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; enforcement of the court's own orders of 30th April 2024

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Abdalla & 6 others v Khansa Developers Limited & 3 others (Constitutional Petition 16 of 2022) [2025] KEELC 6219 (KLR)", Case Analysis (2025). Notice of Motion dated 26th February 2025 (Petition, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6219/eng@2025-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.