Wanjala Sio & Machira Kibanya (Suing on their own behalf and on behalf of Daisy Road Residents, Runda) v Alexander Mburu Mungai & 2 others

JUDGEMENT 1. The Petitioners instituted the Petition dated 24th November 2025 seeking the following orders: a) A declaration that the construction undertaken on land known as L.R. No. Nairobi Block 99/183 (12872/183), House 183 is illegal. b) A declaration that the Respondent’s actions and/or omissions in failing to obtain development approvals before undertaking construction on L.R. No. Nairobi Block 99/183 (12872/183), House 183 were contrary to the law and infringed upon the rights of the Petitioners. c) A declaration that the omission by the Respondent to undertake an environmental impact assessment study and obtain an Environmental Impact Assessment Licence from the 2nd Interested Party infringed upon the constitutional rights of the Petitioners. d) An order directing the Respondent to stop any further development immediately, and not less than seven days, bring down/demolish/remove the illegal buildings and structures erected on the parcel of land known as L.R. No. Nairobi Block 99/183 (12872/183), House 183. e) A restorative order directing the Respondent to restore the parcel of land known as L. R. No. Nairobi Block 99/183 (12872/183), House 183 to its former condition before undertaking the alleged illegal construction. ELC PETITION NO. E096 OF 2025 2

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f) Costs of the Petition. g) Such other and/or further remedy as this Honourable Court may deem fit and just to grant. THE PETITIONERS’ CASE 2. The Petition is supported by the affidavit of Wanjala Sio, sworn on behalf of the Petitioners and the residents of Daisy Road, Runda. He averred that the Petitioners are residents of Daisy Road and members of the New Runda Residents Association and that the subject property, L.R. No. Nairobi Block 99/183 (12872/183), House 183, is situated within the same neighbourhood. 3. The Petitioners’ case is that the Daisy Road area is zoned as a low-density single-dwelling residential area. According to the deponent, sometime in January 2025, residents noticed clearing works being undertaken on the subject property without prior notice or public participation. Attempts by members of the residents’ association to obtain information from the Respondent and persons working on the property were unsuccessful. Excavation subsequently commenced and, thereafter, construction works began on the property. 4. The Petitioners averred that they approached the 1st Interested Party seeking clarification on the nature of the development and whether the requisite approvals had been granted. The 1 st Interested Party allegedly confirmed that it was unaware of the development and consequently issued a Stay Order dated 24th February 2025. The Respondent initially stopped construction but, according to the Petitioners, later ELC PETITION NO. E096 OF 2025 3

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resumed the works. 5. It was further averred that the 1st Interested Party subsequently issued an Enforcement Notice dated 17th September 2025, requiring the Respondent to stop the development and demolish the construction within seven days. The Petitioners contend that the Respondent did not comply with the notice and continued with the construction. They further state that officers of the 1st Interested Party later visited the property, marked the development as illegal and condemned it for demolition. 6. The Petitioners also contend that the Respondent commenced and continued the development without the requisite development approvals and without undertaking an Environmental Impact Assessment or obtaining the necessary environmental licence. They assert that there was no public participation concerning the development and that the construction was inconsistent with the applicable zoning and planning requirements. 7. On that basis, the Petitioners contend that the Respondent’s actions violated their constitutional rights, including the right to a clean and healthy environment and the peaceful use and enjoyment of their properties, and that the continued construction posed adverse effects upon the character and environment of the neighbourhood. They consequently sought the intervention of the Court. PARTICIPATION BY THE RESPONDENT AND INTERESTED PARTIES 8. The record shows that the Respondent and the Interested Parties were duly served with the Petition and the relevant court process. Despite service, they did not enter appearance, file any response to the Petition or participate in the proceedings. The Petition therefore proceeded as ELC PETITION NO. E096 OF 2025 4

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unopposed. 9. The Petition was canvassed by way of written submissions. The Petitioners filed their written submissions, together with the authorities relied upon, and urged the Court to allow the Petition as prayed. Counsel identified the following issues for determination: whether the construction undertaken on L.R. No. Nairobi Block 99/183 (12872/183), also known as House No. 183, is illegal; whether the Petitioners are entitled to the reliefs sought; and who should bear the costs of the Petition. 10. In support of their case, the Petitioners relied on Ramogo & another v Integrity Holdings Limited [2023] KEELC 20364 (KLR), Anami & 2 others v County Executive Committee Member (CECM) Built Environment and Urban Planning, Nairobi City County & 20 others [2025] KEELC 128 (KLR), Mui Coal Basin Local Community & 15 others v Permanent Secretary Ministry of Energy & 6 others; Fenxi Mining Industry Company Ltd & 11 others (Interested Parties), Export Processing Zone Authority & 10 others v National Environment Management Authority & 3 others (2024), and Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR. ISSUES FOR DETERMINATION 11. Having considered the Petition, the Supporting Affidavit, the material placed before the Court and the Petitioners’ written submissions, the following issues arise for determination: a) Whether the construction undertaken on L.R. No. Nairobi Block 99/183 (12872/183), House No. 183 was undertaken in contravention of the applicable planning and environmental laws and is therefore unlawful. ELC PETITION NO. E096 OF 2025 5

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b) Whether the Petitioners are entitled to the reliefs sought. c) Who should bear the costs of the Petition. ANALYSIS AND DETEMINATION Whether the construction undertaken on L.R. No. Nairobi Block 99/183 (12872/183), House No. 183 was undertaken in contravention of the applicable planning and environmental laws and is therefore unlawful 11. The first issue concerns the legality of the development undertaken by the Respondent on the suit property. The Petitioners’ case is that the Respondent commenced and continued construction without development permission from the 1st Interested Party, contrary to the planning and zoning requirements applicable to the area, and without complying with the applicable environmental requirements. Although the Petition proceeded unopposed, the Court must nevertheless determine whether the material placed before it establishes those allegations to the required standard. 12. The starting point is section 57(1) of the Physical and Land Use Planning Act, which expressly provides that a person shall not carry out development within a county without development permission granted by the respective County Executive Committee Member. Subsection (2) makes commencement of development without such permission an offence, while subsection (3) empowers the County Executive Committee Member to require restoration of land where development has commenced without permission. The statutory position is therefore clear: development permission is a prerequisite to the lawful commencement of development. ELC PETITION NO. E096 OF 2025 6

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13. The procedure for obtaining such permission is further provided for under section 58 of the Act. An applicant is required to apply to the relevant County Executive Committee Member and provide the documents, plans and particulars necessary to disclose the nature and purpose of the proposed development. Of particular relevance to the present dispute are subsections (7) and (8), which require a person applying for development permission to notify the public of the proposed development in the prescribed manner and to invite members of the public to submit objections for consideration by the relevant County Executive Committee Member. 14. In the present case, no development permission, approved building plans or other development-control approval was placed before the Court to demonstrate that the impugned construction had been sanctioned by the 1st Interested Party. The Petitioners’ evidence was, instead, that they first became aware of the development after clearing and excavation had commenced and that no notice concerning the proposed development had previously been issued to them. They further contended that the property lies within an area ordinarily characterised by low-density residential development and that the construction being undertaken was inconsistent with the applicable zoning requirements. These assertions were not controverted. 15. More significantly, the evidence before the Court shows that after the development came to the attention of the 1st Interested Party, a Stay Order dated 24th February 2025 was issued. The Petitioners averred that the Respondent initially stopped construction but subsequently resumed the works. Thereafter, an Enforcement Notice dated 17 th September 2025 was issued requiring the Respondent to stop further development and remove the offending construction. The Petitioners further stated that ELC PETITION NO. E096 OF 2025 7

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officers of the 1st Interested Party subsequently visited the property, marked the development as illegal and condemned it for demolition. 16. That sequence is consistent with the enforcement mechanism contemplated under section 72 of the Physical and Land Use Planning Act. Under that development provision, has an enforcement commenced without notice the may required issue where development permission or where conditions attached to development permission have not been complied with. Such a notice may require demolition or alteration of the offending works or discontinuance of an unlawful use. The Act also provides a statutory avenue of appeal to the County Physical and Land Use Planning Liaison Committee for a person aggrieved by an enforcement notice. There is no material before the Court showing that the Enforcement Notice issued against the Respondent was challenged, suspended or set aside. 17. The Petitioners also challenged the development on environmental grounds. Section 58 of the Environmental Management and Co-ordination Act requires a proponent of a project falling within the Second Schedule to submit a project report to the National Environment Management Authority before financing, commencing or proceeding with the project. Where the Authority determines that the proposed project may or is likely to have a significant impact on the environment, an environmental impact assessment study is required. Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2003 further provides for consultation with persons who may be affected during the conduct of such an environmental impact assessment study. The Petitioners relied on those provisions in contending that no applicable environmental assessment process had been undertaken and that the neighbouring residents had ELC PETITION NO. E096 OF 2025 8

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not been consulted. 18. The Court is, however, mindful that the mere fact that construction is being undertaken does not, without more, establish that a full environmental impact assessment study and licence were required. That depends upon the nature, scale and classification of the particular project under the applicable statutory framework. The material before the Court does not sufficiently particularise the development to enable the Court to make a definitive finding that a full environmental impact assessment study was mandatory in this instance. What is clear, however, is that no material was placed before the Court demonstrating compliance with any environmental assessment requirements that may have applied to the impugned development. 19. On the totality of the evidence, the Court is satisfied that the Respondent did not demonstrate that the construction on L.R. No. Nairobi Block 99/183 (12872/183), House No. 183 was supported by development permission issued in accordance with the Physical and Land Use Planning Act. The absence of evidence of such permission, coupled with the Stay Order and the subsequent Enforcement Notice issued by the 1 st Interested Party, supports the Petitioners’ contention that the development was undertaken outside the applicable development-control framework. The evidence that the Respondent nevertheless continued with the construction remained uncontroverted. Accordingly, the Court finds that the impugned construction was undertaken in contravention of the applicable planning requirements and was therefore unlawful. Whether the Petitioners are entitled to the reliefs sought 20. Having found that the impugned development was undertaken in contravention of the applicable planning requirements, the Court now ELC PETITION NO. E096 OF 2025 9

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turns to the reliefs sought. The Petitioners seek declaratory orders, cessation of the development, removal of the impugned works, restoration of the suit property and costs. 21. Article 23(3) of the Constitution empowers the Court to grant appropriate relief where a violation or threatened violation of a right has been established. In addition, sections 57(3) and 72 of the Physical and Land Use Planning Act contemplate restoration of land and the demolition or alteration of development undertaken without the requisite permission. 22. In the present case, the 1st Interested Party had already exercised its statutory mandate by issuing the Stay Order dated 24th February 2025 and the Enforcement Notice dated 17th September 2025. The two documents are exhibited as WS-02 and WS-03 respectively. There is no material before the Court showing that the said notices were subsequently varied, suspended or set aside. 23. In the circumstances, the Court is satisfied that declaratory relief concerning the unlawfulness of the development is warranted. It is also appropriate that the Respondent be directed to cease further development and comply with the enforcement process already initiated by the 1st Interested Party. 24. With respect to the environmental relief, the material placed before the Court does not sufficiently establish the nature and classification of the development so as to enable the Court to make a definitive finding on whether a full Environmental Impact Assessment study and licence were required. The Court therefore declines to grant that particular declaration. ELC PETITION NO. E096 OF 2025 10

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25. The Petition accordingly succeeds to the extent set out in the final orders below. Costs 26. Taking into account the nature of the dispute and the fact that the Petition concerns questions of planning compliance and the interests of residents within the locality, the Court considers it appropriate that each party bears its own costs. FINAL ORDERS 27. Consequently, the Petition dated 24th November 2025 is determined in the following terms: a) A declaration is hereby issued that the construction undertaken on L.R. No. Nairobi Block 99/183 (12872/183), House No. 183 without the requisite development permission was unlawful. b) A declaration is hereby issued that the Respondent’s commencement and continuation of the development without demonstrating compliance with the applicable development-control requirements was contrary to the Physical and Land Use Planning Act. c) The Respondent is hereby directed to cease any further development on L.R. No. Nairobi Block 99/183 (12872/183), House No. 183. d) The Respondent shall comply with the Enforcement Notice dated 17 th September 2025 issued by the 1st Interested Party in accordance with ELC PETITION NO. E096 OF 2025 11

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the applicable law. e) The prayer relating to failure to undertake an Environmental Impact Assessment study and obtain an Environmental Impact Assessment licence is declined. f) Each party shall bear its own costs. It is so ordered. DATED, SIGNED and DELIVERED virtually at NAIROBI on 21st day of September, 2026. MOHAMMED N. KULLOW JUDGE Judgement delivered in the presence of: Ms. Karori holding brief for Mr. Wamae N/A Ms. Mwangi ELC PETITION NO. E096 OF 2025 for the Petitioner for the Respondent Court Assistant 12

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