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ELCDismissedELC LPET NO. E023 OF 2025· [2026] KEELC 2380 (KLR)

Mwalimu v County Government of Mombasa (Land Case Petition E023 of 2025) [2026] KEELC 2380 (KLR)

Environment and Land Court
23 April 2026
YAY. M. Angima
1,086 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to suspend Mombasa County's new sanitation and hazardous waste regulations, meaning businesses must comply while the main court challenge continues.

What this practically means

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Executive summary

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The petitioner moved the Environment and Land Court at Mombasa by notice of motion dated 28 October 2025 seeking conservatory orders to stop enforcement of the Mombasa County Water and Sewerages Service (Sanitation) Regulations 2025 and the Mombasa County (Hazardous Waste) Management Regulations 2025 pending hearing of the petition. The petitioner argued that the regulations were promulgated without meaningful public participation, imposed exorbitant and duplicate fees, levies, charges and fines, encroached on WASREB's mandate under the Water Act 2016, and created duplicate enforcement mechanisms conflicting with national-level mechanisms. The respondent, through a replying affidavit of Jezian Faruk, County Secretary and Head of Public Service, asserted that extensive public participation and consultations were undertaken, evidenced by newspaper notices and stakeholder letters, that WASREB approval was obtained before reviewing charges upwards, and denied any conflict or duplication. Despite directions for written submissions and leave for a further affidavit, none were filed. Angima J held that the sole question was whether the petitioner had made out a case for the conservatory order. Applying Gatirau Peter Munya vs Dickson Mwenda Kithinji, the court found prima facie some public consultation, with adequacy reserved for trial, and was not satisfied that enforcement would cause substantial injury or chaos in public administration. Invoking the precautionary principle, the court dismissed the motion, with costs in the cause, and directed the petitioner to set down the petition for hearing on merit.

Key legal issues

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Whether a conservatory order should issue to suspend the Mombasa County sanitation and hazardous waste regulations pending the hearing of the petition

Holding

The application was dismissed; the petitioner failed to make out a case for the conservatory order.

Reasoning

The court reiterated the purpose of conservatory orders and, mindful that the main petition was yet to be heard, declined to delve deeply into the controversy. It found on a prima facie basis that some public consultation and stakeholder engagement occurred, with adequacy left for trial. It was not satisfied that enforcement would cause substantial injury or chaos in public administration, and invoked the precautionary principle, directing the petitioner to set the petition down for hearing.

p. 5

Legal principles established

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  • Conservatory orders preserve the state of things in dispute pending hearing and are granted on the inherent merit of a case bearing in mind public interest and constitutional values, not on private-law irreparable harm or probability of success tests

Court orders

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  1. 1.The notice of motion dated 28.10.2025 is dismissed
  2. 2.Costs of the application shall be in the cause
Jurisdiction invoked
Articles 19(3), 20, 21, 22(2)(c), 22, 23, 28, 40, 46, 47, 48, 50 and 159 of the Constitution and Rules 4(1), 23 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Mwalimu v County Government of Mombasa (Land Case Petition E023 of 2025) [2026] KEELC 2380 (KLR)", Case Analysis (2026). ELC LPET NO. E023 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2380/eng@2026-04-23

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