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ELCPartially AllowedJudicial Review Application (Notice of Motion dated 20.04.2010)· [2025] KEELC 7138 (KLR)

Republic v County Council of Kwale; Leisure Lodges Limited (Ex parte Applicant); Attorney General (Interested Party) (Environment and Land Judicial Review Case 3 of 2022) [2025] KEELC 7138 (KLR)

High Court of Kenya at Mombasa
16 October 2025
1,737 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court quashed Kwale County council demolition notices, finding the council acted in bad faith against a Diani hotelier.

What this practically means

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Executive summary

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This is a first-instance judicial review decision in which Leisure Lodges Limited, the ex-parte applicant, challenged enforcement notices issued by the County Council of Kwale on 19.03.2010 requiring demolition of perimeter walls around water tanks at the Diani Complex Scheme and along the golf course at Diani Beach Road, on the ground that the walls had been erected without permission under the Physical Planning Act. The applicant sought certiorari to quash the two decisions and prohibition to restrain enforcement of the notices, contending it had paid for and obtained the necessary approvals and that the respondent acted in bad faith by failing to take similar action against squatters who had invaded its land. The respondent, through affidavits of its County Engineer and its Clerk, disputed that any development permission application had been made or approved. The court framed two issues: whether the claim for judicial review was substantiated and whether the applicant was entitled to the reliefs. It found a history of land disputes between the parties, noted that the respondent's Clerk had been allocated a plot on the applicant's land and, shortly after being sued, issued the enforcement notices without parcel particulars, and observed the respondent's failure to act against squatters and its haste in issuing notices before completing internal approval of the applicant's paid-up plans. The court held the respondent acted irregularly and in bad faith, granted certiorari quashing both decisions and prohibition against enforcement of the notices, and made no order as to costs.

Key legal issues

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01

Whether the applicant substantiated its claim for judicial review of the enforcement notices

Holding

The applicant proved legal impropriety and bad faith on the part of the respondent in issuing the enforcement notices, and was entitled to judicial review remedies against the respondent only.

Reasoning

The court noted prior land disputes between the parties, including litigation in which the applicant was successful. The clerk who swore a replying affidavit had himself been allocated a plot on the applicant's land and, upon being sued, swiftly issued enforcement notices lacking parcel particulars. The respondent also failed to act against squatters who had invaded the applicant's land, and issued notices before completing scrutiny of the applicant's paid-up building plans. This pattern demonstrated bad faith and ulterior motives.

p. 3
02

Whether the applicant was entitled to the reliefs sought

Holding

Having demonstrated its claim, the applicant was granted the orders of certiorari and prohibition sought, save for costs.

Reasoning

The court found that the applicant had sufficiently demonstrated its claim against the respondent and was entitled to appropriate remedies to vindicate its legal rights. It therefore granted all prayers in the application, but declined to award costs on the facts of the case.

p. 4

Legal principles established

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  • A local authority that takes adverse enforcement action before completing its internal approval processes, and selectively fails to act against other violators, acts in bad faith and irregularly.

Court orders

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  1. 1.Order of certiorari removing into the court and quashing the decision of the County Council of Kwale dated 19.03.2010 that the perimeter wall surrounding water tanks at Diani Complex Scheme, Darad Region was erected by Leisure Lodges Limited without permission under the Physical Planning Act
  2. 2.Order of certiorari removing into the court and quashing the decision of the County Council of Kwale dated 19.03.2010 that the perimeter wall surrounding the Golf course alongside Diani Beach Road was erected without permission under the Physical Planning Act
  3. 3.Order of prohibition preventing the County Council of Kwale, its employees, officers, servants and/or agents from enforcing the enforcement notices dated 19.03.2010 requiring demolition, suspension, pulling down, uprooting or relocation of the perimeter walls
  4. 4.Order of prohibition preventing the County Council of Kwale, its employees, officers, servants and/or agents from requiring demolition, suspension, pulling down, uprooting or relocation of the approved walls on Kwale/Diani Beach Block/856 and commercial plots Kwale/Diani Beach Block/551-559 (Leisure Lodge Golf Resort)
  5. 5.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rules 2, 4 and 5
  • Civil Procedure ActSection 3A
  • Law Reform ActSections 8 and 9
  • Physical Planning Act

Cases cited (2)

  • Mombasa High Court Petition No. 21 of 2010
  • Mombasa HCCC No. 2 of 2010
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules

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, "Republic v County Council of Kwale; Leisure Lodges Limited (Ex parte Applicant); Attorney General (Interested Party) (Environment and Land Judicial Review Case 3 of 2022) [2025] KEELC 7138 (KLR)", Case Analysis (2025). Judicial Review Application (Notice of Motion dated 20.04.2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7138/eng@2025-10-16

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