Real Estate Stakeholders Association v County Government of Kiambu & 2 others

RULING Introduction 1. This Court has been tasked with determining the Notice of Motion application dated 26th November 2025 in which the Applicant seeks the following Orders: 2. Spent… 3. Spent… 4. THAT pending the hearing and determination of the main Petition, this Honourable Court be pleased to issue a conservatory order suspending the operation and effect of the proposed changes to the Integrated Strategic Urban Development Plans (ISUDPs) and the Draft Kiambu consequential County actions or Spatial Plan, administrative and all directives issued pursuant thereto. 5. THAT pending the hearing and determination of the Petition, this Honourable Court be pleased to direct the Respondents to continue processing development applications under the regulatory framework existing prior to the adoption of the proposed changes to the Page 2 of 18

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Integrated Strategic Urban Development Plans and the Draft Kiambu County Spatial Plan, in order to protect the rights and legitimate expectations of developers, investors, and property owners. 6. THAT pending the hearing and determination of the Petition, the Respondents be compelled to adhere strictly to the statutory framework existing under the Physical and Land Use Planning Act, 2019, specifically with regard to development control and land surrender requirements. 7. THAT for avoidance of doubt, the Respondents be prohibited from requiring land surrender exceeding what is expressly permitted under PLUPA 2019, and particularly from imposing or enforcing land surrender requirements for agricultural or mixed-use developments where no statutory basis exists. 8. THAT this Honourable Court be pleased to issues any further or other orders as it may deem just and expedient to preserve the subject matter of the Petition and to protect the constitutional rights of the Petitioner Page 3 of 18

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and its members pending the hearing and determination of the main Petition. 9. THAT the costs of and incidental to this Application be provided for. 2. The Application is founded on the grounds on the face of it and the supporting affidavits of Chrispus Wachira and John Mwaura Kogi sworn on even date 3. In essence, the Applicant challenges the constitutionality, legality and procedural validity of the proposed amendments to the Integrated Strategic Urban Development Plans (ISUDPs) and the Draft Kiambu County Spatial Plan. The complaint in the Petition is threefold. They contend that the process has been undertaken without adequate public participation, infringes the right to property, and violates the right to fair administrative action. It is on that foundation that the Applicant seeks interim orders to halt the implementation of the impugned planning measures pending determination of the Petition. Page 4 of 18

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4. The Applicant’s case is that what was presented as a proposed alteration to the planning framework has, in practice, already been put into effect by the Respondents. The Applicant contends that no piece of legislation has been enacted to legitimize the proposed changes set out in the ISUDPs and the Draft Kiambu County Spatial Plan. 5. The Applicant alleges that the Respondents have declined to approve development applications, required landowners to surrender between reclassified both 20% and 30% of their land, developed and undeveloped and plots, notwithstanding the absence, as they contend, of lawful authority for such measures. 6. According to the Applicant, the implementation of these measures by the Respondents has had far-reaching consequences for developers and property owners, including members of the Petitioner/Applicant, who have been denied development approvals, suffered delays in the implementation of their projects and incurred financial losses. It is the Applicant’s further contention that these measures have interfered with the use and enjoyment of affected Page 5 of 18

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properties and, consequently, infringed the constitutional protection afforded to the right to property under Article 40. 7. The Applicant contends that the danger lies not merely in what the proposed changes may ultimately provide, but in their continued implementation before the Petition is heard. They argue that each further step taken under the impugned planning framework may expose property owners, investors and developers to losses that cannot readily be undone thus undermining the efficacy of any relief that may ultimately be granted. 8. The Respondents take a different view and rely, in support of their opposition, the replying affidavit of Salome Wambui, sworn on 13th January 2026. 9. The Respondents state that the process of preparing the twelve ISUDPs commenced in or about 2016 and was preceded by extensive civic education and public participation and the same was approved on 23 rd December Page 6 of 18

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2024 by the County Assembly through the Sectoral Committee on County Planning and Urbanization. 10. They further state that, prior to their approval by the County Assembly, the ISUDPs were subjected to public participation through a notice published in the Daily Nation on 31st May 2024, inviting members of the public to submit memoranda on the Plans to the Clerk of the County Assembly. 11. The Respondents maintain that the ISUDPs were duly approved, published and implemented in accordance with section 45 of the PLUPA. The Respondents further state that this position was reiterated by, the Governor of Kiambu County, through a notice published in the Daily Nation on 5th June 2025, informing members of the public that the County was in the process of preparing a Draft County Spatial Plan, which was expected to be completed by the end of that financial year. Page 7 of 18

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12. The Respondents take issue with the Applicant’s contention that the proposed changes to the ISUDPs have already been put into effect. Their position is that the changes have neither been implemented nor enforced. They similarly deny that the Draft Kiambu County Spatial Plan has been implemented. 13. The Respondents characterize the Applicants allegations as preposterous, misleading and devoid of merit. Their objection is principally directed at the assertion that the proposed changes to the ISUDPs and the Draft Kiambu County Spatial Plan have already been given effect. According to the Respondents, no such implementation or enforcement has occurred and, consequently, the alleged infringement of property rights, denial of development approvals and other adverse consequences attributed to the impugned measures are said to rest on a factual premise that does not exist. 14. The Respondents further contend that the Applicants have not demonstrated the process by which any development applications were made, considered or allegedly denied. They Page 8 of 18

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therefore dispute the assertion that the Applicant or its members have been denied development approvals. 15.Ultimately, the Respondents contend that the Application discloses no basis upon which the Court's interlocutory jurisdiction ought to be invoked. They characterise it as frivolous, devoid of merit and an abuse of the process of the Court and, on that footing, invite the Court to dismiss it with costs. 16. The Application was canvassed by written submissions duly filed by learned counsel for the respective parties. Issues for Determination 17. Having examined the application, the replying affidavit in opposition, the rival submissions and the relevant authorities, the sole issue for determination is: whether the interim conservatory order ought to be maintained pending the hearing and determination of the Petition. Analysis and Determination Page 9 of 18

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18. Article 23(3) is an important expression of the Constitution's commitment to effective judicial protection of rights and freedoms. It recognises sometimes requires the that constitutional Court to act adjudication before the final determination, lest the right asserted or the controversy itself be overtaken by events. A conservatory order is one such form of protection. Its purpose, however, is not to determine the constitutional question in advance, but to preserve the circumstances in which that question may ultimately be determined. 19. The Court must, at this stage, resist the pull of the ultimate question. The Petition raises substantive questions concerning the legality and constitutionality of the impugned planning measures, but those questions await determination at the hearing. For present purposes, the narrower inquiry is whether the circumstances call for the continued preservation of the position pending that determination. That inquiry is best approached by first considering the nature and purpose of conservatory relief. Page 10 of 18

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20. The Supreme Court settled the character of the remedy in Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR as follows: “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.” 21. Building upon that jurisprudence, Onguto J (as he then was) in Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR identified the considerations which guide the exercise of the Page 11 of 18

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Court's discretion in determining whether conservatory relief is warranted. These include whether the Applicant has demonstrated an arguable prima facie case with a likelihood of success and whether prejudice is likely to result in the absence of relief; whether the grant or denial of the order would enhance the constitutional values and objects implicated; whether the Petition or its substratum would be rendered nugatory without interim protection; and whether the public interest would be served or prejudiced by the exercise of the Court's discretion. The learned Judge also emphasised the need for the Court to consider the relevant material before it without making definitive findings on matters reserved for the hearing of the Petition. 22. The distinction drawn by the Supreme Court is not merely one of nomenclature. It determines the nature of the Court's inquiry. 23. A conservatory order is concerned with preserving the constitutional space within which a dispute concerning the exercise of public power can be effectively determined. It does not resolve that dispute in advance, but neither does it permit the dispute to be overtaken by events merely because the final Page 12 of 18

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determination must await the hearing. The question, therefore, is whether the circumstances of the present case require that protection to continue. The first consideration is whether the Applicants have established a prima facie case. 24. In Mrao Ltd v First American Bank of Kenya Ltd& 2 others[2003] eKLR, the Court of Appeal stated that a prima facie case is one in which, on the material presented, a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal. The Court emphasised that a prima facie case is more than an arguable case and that the evidence must disclose the alleged infringement. 25. It follows that the threshold is not crossed merely because the claim is arguable. Conservatory relief is preventive in character, but the threat it is intended to avert must itself be sufficiently demonstrated. The material before the Court must disclose a real and discernible basis for apprehending the alleged infringement; a possibility founded only on conjecture or speculation cannot, without more, justify the restraint of public power. See Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR. Page 13 of 18

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26. The Applicant principally relys upon a statement published by the Governor of Kiambu County on behalf of the County Government of Kiambu on 5th June 2025 in the Daily Nation under the heading ‘Statement on Development of Land in County Government of Kiambu.’ The statement by the Governor of Kiambu County gives a general description of the ISUDPs, refers to the Draft Kiambu County Spatial Plan, sets out guidelines said to govern the development and management of land within the County and outlines the proposed way forward. The Applicant has, in addition, exhibited correspondence relating to applications for change of user and their subsequent follow-up with the County authorities. 27. There is, however, a difficulty with the evidential foundation of the case. The ISUDPs and the Draft Kiambu County Spatial Plan, whose legality and constitutionality are directly impugned in the Petition, were not annexed to the supporting affidavits. Neither were the particular provisions, maps, classifications, development controls or other relevant extracts upon which the alleged infringement is founded placed before the Court. 28. The Applicant has also placed before the Court the resubmitted Application for Development Permission (Planning Application) dated 24th July 2025 and subsequent letters dated 27 th August 2025 Page 14 of 18

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and 22nd September 2025 seeking the release of the approvals. The documents are relevant, but for a limited purpose. They establish that the Applicants made the applications and subsequently sought their processing. However, they do not disclose the reason for the delay or non-release of the approvals. The evidential difficulty is therefore not whether there was delay, but whether that delay is attributable to the proposed planning changes. 29. The Court is thus invited to determine the effect of instruments whose actual contents, beyond the brief description contained in the newspaper statement, have not been placed before it. 30. The Applicant’s case is not simply that the County has undertaken spatial planning. Their complaint is directed at particular changes said to have been introduced through the impugned planning framework and at the consequences those changes are alleged to have occasioned to landowners and developers. Without the instruments themselves, or at least the portions said to contain the offending provisions, the Court has no primary material against which to assess the nature and extent of the alleged changes. 31.The Applicant’s evidence establishes that applications for development, for change of user and subdivision were made and Page 15 of 18

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that members of the Applicant subsequently sought their consideration by Kiambu County. It does not, however, disclose a decision refusing or conditioning those applications by reference to any identified provision of an ISUDP or the Draft County Spatial Plan. Nor does it demonstrate, from the face of the documents, that the alleged requirement for surrender of land, reclassification of parcels or other impugned development controls had been applied to the Applicant. 32. The Respondents have, in this regard, drawn the Court's attention to paragraph 21 of the affidavit of John Mwaura Kogi sworn on behalf of the Applicant. There, the deponent states, “THAT although the Respondents have not disclosed the reasons for the nonprocessing or silent rejection of the applications, it has become apparent that the delay is likely connected to the said proposed changes”. 33. The Applicant thus infers, rather than demonstrate, the connection between the delay and the proposed changes. No decision or communication from the Respondents linking the two has been produced. Further, neither the ISUDPs nor the Draft Kiambu County Spatial Plan has been placed before the Court. In Page 16 of 18

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those circumstances, the material before the Court does not establish a sufficient evidential link between the impugned planning changes, their alleged application to the Applicant, and the delay in processing their applications. 34.I am therefore not satisfied that the Applicants have established a prima facie case warranting the continued maintenance of the conservatory order. That finding is sufficient to dispose of the Application. 35. Accordingly, the Notice of Motion dated 26 th November 2025 is hereby dismissed. 36. The interim conservatory order is vacated. 37. The costs shall be in the cause. 38. It is so Ordered. Dated, signed and delivered, at Malindi this 22 nd day of September, 2026 …………………….. J. M. ONYANGO JUDGE Page 17 of 18

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In the presence of: Ms Kasha for Mr. Muli for the Petitioner No appearance for the Respondents Court Assistant: Happy Page 18 of 18

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