Tom Brown Ltd & another v County Executive Committee Member In Charge of Planning & 7 others (Environment and Land Petition E053 of 2022) [2026] KEELC 4248 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled approvals for a 12-storey Nairobi apartment block, ruling the county's change-of-user process ignored mandatory steps like Defence Ministry clearance and public participation.
What this practically means
#Executive summary
#Key legal issues
#Competency of the 3rd Respondent's Replying Affidavit
Struck out as incompetent; deponent not a registered director and no rebuttal of the CR12 evidence
A company acts only through duly authorised natural persons. The CR12 produced showed Hassan Abdi Mohamed was not a director when he swore the Replying Affidavit, and the 3rd Respondent adduced no rebuttal. The defect goes to capacity, not procedure, and is not curable under Article 159(2)(d). The 3rd Respondent was thus left without a valid response.
Whether the development permissions were issued lawfully
The approvals were unlawful; no lawful reversion to single dwelling use and unrectified statutory deficiencies (Ministry of Defence clearance, neighbour no-objection, on-site notice)
The property's last known approved user was professional offices subject to a 'no redevelopment' condition. The Respondents failed to show any lawful reversion to single dwelling before the impugned change. The NMS letter of 17th May 2022 identified outstanding requirements (MoD clearance, neighbour no-objection) never shown to have been cured, and no on-site notice was proved.
Public participation and circulation to safeguarded-area agencies
Section 60(h) PLUPA required circulation to the Ministry of Defence; MoD was never notified and this was uncontroverted; on-site notice not exhibited
The land lies within a safeguarded area 200 metres from Defence Headquarters. Section 60(h) imposes a positive duty to circulate applications to security agencies. MoD confirmed non-notification, uncontradicted by the Respondents. The absence of a photograph of the project board and of material substantiating participation measures meant meaningful public participation was not proved.
Whether Articles 10, 42, 47 and 48 were violated
Yes, as regards Articles 10, 42, 47 and 48; no, as regards Article 31 (privacy)
Cumulative procedural lapses were inconsistent with Article 10 values; evasive responses to the Petitioners' letters fell below Article 47; withholding documents frustrated the Liaison Committee appeal, implicating Article 48; the transformation of a low-density safeguarded area posed a credible environmental threat under Article 42. Privacy concerns were prospective consequences, not violations by the approvals themselves.
Exhaustion of remedies / competency of the Petition
Petition competent; exhaustion objection regarding EIA licence moot since the licence was not impugned; Liaison Committee process frustrated
The competency challenge was substantively addressed in the ruling of 8th June 2023. The exhaustion objection concerning the EIA licence was raised only in submissions and, since no relief against the licence was sought, it was moot. The Liaison Committee had refused to accept fees and failed to set down the appeal, engaging the FAAA exemption.
Legal principles established
#- Where authority to depone for a corporation is challenged, the burden shifts to the deponent/company to prove authority; an affidavit sworn by an unauthorised person is incompetent and not curable under Article 159(2)(d).
- Obsolescence of a general zoning policy does not automatically alter specific user rights attaching to a parcel; each change of user is a distinct regulatory step requiring its own procedural compliance.
- The doctrine of presumption of regularity cannot sanitise an approval process where the record discloses apparent non-compliance with express legal conditions.
- Where statutory appeal frameworks presuppose access to decisions and reasons, withholding documents renders the right of appeal illusory and infringes Article 48.
Court orders
#- 1.Declaration that the 1st and 2nd Respondents' refusal to provide requested documents concerning L.R. No. 209/1458/2 violated the Petitioners' right to access to justice and fair administrative action
- 2.Declaration that the 1st and 2nd Respondents' change of user and building approvals/permissions in respect of L.R. No. 209/1458/2 are illegal, unprocedural and unreasonable
- 3.Declaration that the approvals violate, deny, threaten and infringe the Petitioners' rights under Articles 42, 47 and 48 of the Constitution
- 4.Declaration that the approvals violate Article 10 of the Constitution on rule of law, public participation, integrity, transparency and accountability
- 5.Order of permanent injunction restraining and stopping all development activities pursuant to the development permission and change of user in respect of L.R. No. 209/1458/2
- 6.Order quashing all planning permissions, approval plans, change of user and authority to carry out works for the 12-floor 42-apartment development on L.R. No. 209/1458/2
- 7.Respondents to bear the costs of the Petition jointly and severally
- 8.The 3rd Respondent's Replying Affidavit struck out
- Jurisdiction invoked
- Article 22 and 165 of the Constitution (enforcement of fundamental rights and freedoms; Environment and Land Court jurisdiction under the Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tom Brown Ltd & another v County Executive Committee Member In Charge of Planning & 7 others (Environment and Land Petition E053 of 2022) [2026] KEELC 4248 (KLR)", Case Analysis (2026). ELC Pet. No. E053 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4248/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.