Mital Ashok Shah v County Government of Mombasa & Hi Marhaba Apartments Limited

2. The application which is supported by an Affidavit sworn by the Petitioner is premised on the grounds inter alia that: i) In February 2025, the Petitioner became aware of demolition and excavatory works being carried out on Plot No. Msa/Block XXVI/677 owned by one Rajul Rameshchandra Malde; ii) On 5th February 2026, the Petitioner wrote to the 1st Respondent, requesting to know why the said Rajul Malde was undertaking development of the said plot without development permission; iii) By a letter dated 4th March 2026, the 1st Respondent wrote back stating that the said R.K. Malde had obtained permission to develop the said plot and pledged to ensure strict adherence to the required standards; iv) Contrary to the assurance given, the 2nd Respondent has commenced and is now continuing with construction works of Plot numbers Mombasa/Block XXVI/677, Mombasa XXVI/692 and Mombasa/Block RULING XXVI/829 Page 2 of 23 for purposes of MSA. ELCPET. E002 OF 2026

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developing an 18 storey Block of Apartments, Offices and other amenities; v) On 7th May 2026, the Petitioner wrote to the 1 st Respondent enquiring if permission had been given for the said developments but received no response; vi) The Petitioner contends that there was no public participation conducted and or carried out, of and concerning the developments now being undertaken by the 2nd Respondent with the tacit approval of the 1st Respondent; and vii) In the circumstances, the development works which have been commenced on the three plots are in breach of the law. 3. Hi Marhaba Apartments Limited (the 2nd Respondent) is opposed to the Petition and the application. In a Replying Affidavit sworn on its behalf by its director Hassan Said Boboo, the 2nd Respondents avers that it acquired Plot Nos. Mombasa/Block RULING XXVI/677, Mombasa/Block Page 3 of 23 XXVI/692 and MSA. ELCPET. E002 OF 2026

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Mombasa/Block XXVI/829 by a Sale Agreement dated 4 th August 2025 from the previous owners. 4. The 2nd Respondent further avers that they effected transfer of the said properties on 11 th March 2026 and that the 2 nd Respondent is therefore the legal, beneficial and equitable owner of the said properties. 5. The 2nd Respondent avers further that it has secured all required permits and licences from government agencies lawfully and legally through following laid down procedures and that there was no illegality committed on their part in commencing and continuing with the said constructions. 6. The 2nd Respondent asserts that on 17th February 2026, it submitted an application for Change of User from single dwelling to Residential Multiple Dwelling use together with a consolidation of the 3 parcels. It is its case that on 11 th February 2026, the 1st Respondent sought objections from the RULING Page 4 of 23 MSA. ELCPET. E002 OF 2026

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members of the public on the proposed change of use and consolidation through the Taifa Leo Newspaper. 7. The 2nd Respondents avers that on 17 th February 2026, the 1st Respondent through its Director of County Planning sought comments and recommendations from various stakeholders and that their application was approved by the 1 st Respondent on 28th February 2026. 8. The 2nd Respondent further avers that on 7 th February 2026, they had equally submitted an application for approval of their Building Plan and the same was approved on 1 st March 2026. The 2nd Respondent states that it then proceeded to prepare and submit an Environmental Impact Assessment (EIA) Project Report to the National Environment Management Authority (NEMA) and the National Construction Authority (NCA) which was approved by NEMA on 24 th April 2026. Equally the NCA approved the application and issued a Certificate of Compliance valid from 27th April 2026 to 27th April 2028. The 2nd Respondent further avers that they RULING Page 5 of 23 MSA. ELCPET. E002 OF 2026

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consulted the neighbours around the area by conducting public participation barazas. 9. The 2nd Respondent avers that the construction they have commenced is not out of character with its surroundings as there are similar buildings in the neighborhood and the same is lawful as all the requisite approvals were obtained before its commencement. The 2nd Respondent further avers that given that they have commenced the construction, a grant of a temporary injunction stopping the same at this stage will subject them to great loss and damage that cannot be compensated by way of costs and the Court should therefore balance their interests as owners of the suit properties who have a right to use, occupy and enjoy the same and those of the Petitioner who acquiesced on his right to participate in a publicly advertised process of public participation. 10. The 2nd Respondent urges the Court that if it is inclined to grant the prayers sought, for purposes of maintaining an equal tooling herein, it should order the Petitioner to deposit RULING Page 6 of 23 MSA. ELCPET. E002 OF 2026

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50% of the value of the construction amounting to Kshs. 500 Million in a joint interest earning account in the name of both advocates on record as security to protect the losses so far incurred. 11. The County Government of Mombasa (the 1st Respondent) is equally opposed to the application by the Petitioner. In a Replying Affidavit sworn by its County Director of Physical Planning Paul Manyala on 22 nd May 2026, the 1st Respondent avers that it is the lawful County authority mandated under the Constitution of Kenya, the County Governments Act and the Physical and Land Use Planning Act, 2019, to process, consider and determine applications relating to physical planning, change of user, consolidation, development permissions and building approvals within Mombasa County. 12. The 1st Respondent avers that the approvals complained of by the Petitioner were processed lawfully, procedurally and within the statutory framework established under the Physical RULING Page 7 of 23 MSA. ELCPET. E002 OF 2026

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and Land Use Planning Act, 2019 and the applicable Regulations. 13. The 1st Respondent further avers that the 2 nd Respondent submitted to the County Government an application for change of user, an application for consolidation of the three plots and another for development permission and approval of building plans in respect of the proposed development. The 1st Respondents asserts that upon receipt of the said applications, it commenced the requisite statutory review and approval processes before granting its approvals for the same. 14. The 1st Respondent avers that the processes undertaken included publication and invitation for public comments and/or objections regarding the proposed change of user and consolidation through a newspaper advertisement in the Taifa Leo Newspaper and that the allegation by the Petitioner that there was no public participation is therefore misleading, inaccurate and contrary to the factual position. RULING Page 8 of 23 MSA. ELCPET. E002 OF 2026

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15. The 1st Respondent avers further that pursuant to Section 57 and related provisions of the Physical and Land Use Planning Act, 2019, the application for development permission was duly publicized and relevant stakeholders afforded opportunity to raise comments and/or objections. an The 1 st Respondent states that it further sought comments and recommendations from relevant departments and stakeholders before granting the approvals. 16. The 1st Respondent asserts that in granting the approvals, it did further impose conditions upon the same including compliance with environmental, planning and construction requirements imposed by the relevant regulatory bodies. 17. The 1st Respondent avers that the allegations relating to anticipated traffic congestion, parking concerns, utilities strain and similar matters are issues ordinarily addressed within the planning and environmental assessment process and do not by themselves establish an illegality or constitutional violation. RULING Page 9 of 23 MSA. ELCPET. E002 OF 2026

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18. It is further the 1st Respondent’s case that the conservatory and injunctive orders sought by the Petitioner would severally prejudice the lawful exercise of proprietary and development rights over the subject properties notwithstanding existence of duly issued approvals and licences. the The 1 st Respondent asserts that the balance of convenience tilts in favour of allowing a duly approved development to proceed subject to continued regulatory supervision and compliance enforcement by the relevant statutory authorities rather than restraining the same. 19. I have carefully perused and considered the Petitioner’s application as well as the respective responses by the two Respondents. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocates representing the parties. 20. By this application before the Court, the Petitioner prays for an order of injunction to issue to restrain and prohibit the 2 nd Respondent, its agents and/or servants from conducting and RULING Page 10 of 23 MSA. ELCPET. E002 OF 2026

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continuing with any construction and development works on the parcel of land known as Plot No.s Mombasa/Block XXVI/677, Mombasa XXVI/692 and Mombasa/Block XXVI/829 pending the hearing and determination of this Petition. 21. It is the Petitioner’s case that the 2 nd Respondent has embarked on the process of construction and development of 18 storey blocks of Apartments, Offices and other amenities without receiving the requisite development permissions and without public participation. 22. The 2nd Respondent denies those accusations and avers that it is the lawful owner of the registered properties and that it has secured all required permits and licences from government agencies lawfully and legally by following the laid down procedures. The 2nd Respondent denies that there was any illegality committed on their part in commencing and continuing with the said constructions. 23. In support of the position taken by the 2 nd Respondent, the 1st Respondent County Government avers that it is the only RULING Page 11 of 23 MSA. ELCPET. E002 OF 2026

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authority mandated under the Constitution of Kenya, the County Governments Act and the Physical and Land Use Planning Act, 2019 to process, consider and determine applications relating to physical planning, Change of User, consolidation, development permissions and building approvals within Mombasa County. 24. It is the 1st Respondent’s case that pursuant to that mandate, it had lawfully, procedurally and within the statutory framework established under the law, given its approval to the 2nd Respondent to commence and continue construction and development works on the suit properties. It is further the 1st Respondent’s case that the processes undertaken included publication and invitation for public comments and/or objections regarding the proposed developments and that therefore the assertions by the Petitioner that there was no public participation prior to the commencement of the works was without basis. RULING Page 12 of 23 MSA. ELCPET. E002 OF 2026

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25. When the application was first presented before this Court on 11th May 2026, the Court granted a temporary order of injunction stopping the construction pending the hearing and determination of the application inter-partes. That order was granted primarily on the basis that there were no development permissions issued to the 2 nd Respondent and that there was no public participation conducted prior to the commencement of the construction works. 26. According to the Respondents, the Petitioner was guilty of material non-disclosure since the 1st Respondent had by then informed the Petitioner that development permissions had been issued to the 2nd Respondent. It was therefore the Respondents’ case that the Petitioner was underserving of any extension of the said orders and that the same should naturally lapse by operation of the law. 27. From the material placed before the Court, the genesis of these proceedings was a letter dated 5th February 2026 which the Petitioner wrote to the 1st Respondent complaining of RULING Page 13 of 23 MSA. ELCPET. E002 OF 2026

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what he termed as an illegal construction or developments that were being undertaken by one Rajul K. Malde who was then the registered proprietor of Plot No. 677. On 4 th March, 2026, the 1st Respondent responded to the Petitioner’s complaint as follows: “RE: Development On Msa/Block XXVI/677 Owner: K. Malde The developer has complied with the requisite requirement of obtaining a Development Permit from the County Government prior to commencement of proposed works. This office will however compliance to ensure continue that the to enforce works are undertaken in strict adherence to the required standards.” 28. Some two months later, the Petitioner having apparently noticed that the construction works had extended to Plot No.s 692 and 829 wrote to the 1st Respondent on 7th May 2026 demanding to know if the 2 nd Respondent who had turned out RULING Page 14 of 23 MSA. ELCPET. E002 OF 2026

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to be the one carrying out the constructions, had complied with the law before commencing the constructions on the three parcels of land. 29. According to the 2nd Respondent, it had on 17th February 2026 submitted an application for Change of User from single Dwelling to Residential Multiple Dwelling Use together with an application for consolidation of the three parcels to the 1 st Respondent. By a letter dated 10th March 2026, the Mombasa County Executive Committee Member for Lands, Physical Planning, Housing and Urban Renewal Mohammed Hussein wrote back to the 2nd Respondent indicating that the application had been approved subject to a number of conditions. At condition No. V, it was stated as follows: “V. No construction should commence on site unless EIA project report is prepared, submitted and approved by NEMA as per EMCA (Amended) Cap 387 and register (sic) the project with the National Construction Authority.” RULING Page 15 of 23 MSA. ELCPET. E002 OF 2026

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30. In its Replying Affidavit filed herein, the 2 nd Respondent has produced an Environmental Impact Assessment Licence issued by the National Environmental Management Authority (NEMA) dated 24th April 2026 (Exhibit HMAL 11). A perusal of the licence reveals that it specifically allowed construction of two eighteen (18) storey buildings on Plot Nos. Mombasa/Block XXVI/829 and Mombasa XXVI/692. The licence does not make any reference to the parcel of land known as Mombasa/Block XXVI/677. 31. It was telling that as at the time the application for change of user, consolidation and development of the suit properties upto the time the conditional approval was given to the 2 nd Respondent on 10th March 2026, none of the properties was registered in the name of the 2nd Respondent. By its own admission, the 2nd Respondent became registered as the proprietor of the three parcels of land on 11th March 2026. 32. In a situation where the person applying for development permission is not the registered proprietor of the land, Section RULING Page 16 of 23 MSA. ELCPET. E002 OF 2026

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58(4) of the Physical and Land Use Planning Act provides as follows: “Where an applicant is not the registered owner of the land for which development permission is being sought, that applicant shall obtain the written consent of the registered owner of that land and the applicant shall provide that written consent to the respective county executive committee member at the time of applying for development permission.” 33. In the matter before me, neither the 1st Respondent nor the 2nd Respondent has exhibited any such consent and it was unclear to me whether such a documents was availed to the 1st Respondent for its evaluation before issuing the development permit. 34. While the Respondents have emphasized on the processes they undertook to conduct public participation culminating in the issuance of the NEMA licence dated 24 th April 2026, they did not respond to the Petitioner’s averment that the construction works, at least in Plot No. 677 had commenced in RULING Page 17 of 23 MSA. ELCPET. E002 OF 2026

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February 2026 long before the Development permission was given by the 1st Respondent. Again while the Respondent have placed great emphasis on public participation conducted under the Environmental Management & Coordination Act (EMCA) I was unable to find at this stage any evidence of public participation conducted under the Physical and Land Use Planning Act. 35. While under EMCA public participation is conducted pursuant to Section 58(1) and (2) for purposes of obtaining an Environmental Impact Assessment (EIA) Licence, that was clearly a different process from the public participation envisaged before granting of a development permission under Section 57 of the Physical and Land Use Planning Act. 36. Under Section 55(1) of the Physical and Land Use Planning Act, the objectives of development control by the County Governments are listed as follows: a) to ensure orderly development; physical and land use b) to ensure optimal land use; RULING Page 18 of 23 MSA. ELCPET. E002 OF 2026

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c) to ensure the proper execution and implementation of approved physical and land use development plans; d) to protect and conserve the environment; e) to promote public safety and health; f) to promote public participation in physical and land use development decision-making; g) to ensure orderly and planned building development, planning, design, construction, operation and maintenance; and h) to promote the safeguarding of national security. 37. At the same time Section 55(2) of the Act Provides as follows: “In addition to the provisions of subsection (1), development control may also relate to the matters specified in the Third Schedule.” 38. In particular Paragraph 8 of the Third Schedule to the Act provides as follows: “8. Where the development involves the erection of a building, the county government will consider the following:- RULING Page 19 of 23 MSA. ELCPET. E002 OF 2026

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a) the use of the building; b) the sitting of the building within the plot; c) the elevations of the building, plinth area, canopies and height of buildings; d) the design, shape, civic design and facade and appearance of the building; e) the set back and the building line; f) access to and parking on land which the building is to be erected; g) loading bay; h) density; i) plot coverage; j) provision for rainwater harvesting facilities and water storage tanks in every building; k) landscaping; l) character; m) ventilation and lighting; n) infrastructure adequacy; o) environmental, health considerations; and RULING Page 20 of 23 and cultural MSA. ELCPET. E002 OF 2026

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p) any other matter that a county government considers necessary for purposes of planning.” 39. In my considered view, the matters listed in detail under Paragraph 8 of the Third Schedule to the Act are matters for consideration by the County Government. These are not matters to be considered by another body, such as NEMA to which the 1st Respondent herein relinquished its responsibility. 40. That must be the reason Sections 58(7) and (8) of the Act provides as follows: “(7) A person applying for development permission shall also notify the public of the development project being proposed to be undertaken in a certain area in such a manner as the Cabinet Secretary shall prescribe. (8) The notification referred to under subsection (7), shall invite the members of the public to submit any objections on the proposed development project to the relevant county executive committee member for consideration.” RULING Page 21 of 23 MSA. ELCPET. E002 OF 2026

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41. In the circumstances herein, I was not persuaded that prior to the commencement of the construction works, the Respondents had complied with the mandatory provisions of Sections 55 and 58 (7) and (8) of the Physical and Land Use Planning Act. 42. In its letter dated 1st April 2026 addressed to the County Commissioner Mombasa (Annexture HHMAL -7 in the 1 st Respondent’s Replying Affidavit), NEMA itself notes that the prevailing neighborhood character of the area where the suit properties are situated are predominantly low-density residential areas interspersed with medium multi-storey buildings ranging upto 10 to 14 floors. NEMA further notes in the said letter that the proposed high-rise building rises to approximately 63 meters above ground and that the same is likely to introduce significant visual prominence and skyline alteration. RULING Page 22 of 23 MSA. ELCPET. E002 OF 2026

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43. Arising from the foregoing and given the apparent failure to conduct the public participation as envisaged under the Physical and Land Use Planning Act, the precautionary principle demands that this Court stops any further construction on the suit properties until the time the Respondents prove compliance with the law. 44. Accordingly, I hereby find and hold that there is merit in the Motion dated 11th May 2026. I allow the same in terms of Prayer No. (d) thereof. 45. The costs of the application shall abide the Petition. Ruling dated, signed and delivered in open court and virtually at Mombasa this 24th day of September, 2026. ………………………….. J.O. OLOLA JUDGE In the presence of: a) Ms. Firdaus Court Assistant. b) Mr. Paul Buti Advocate for the Petitioner c) Mr. Mohammed Advocate for the 1st Respondent d) Mr. Nura holding brief for Ngure Advocate for the 2 nd Respondent RULING Page 23 of 23 MSA. ELCPET. E002 OF 2026

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