Mwadzaya v County Government of Kilifi & another (Civil Appeal 46 of 2019) [2025] KECA 869 (KLR)
The bottom line
#Kenya's Court of Appeal refused to protect a building developed without county approval, confirming that courts won't grant injunctions to people breaking planning laws.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge dismissed the appellant's suit on issues and matters that were not before the court for consideration and on which no evidence had been led
- 2.Whether the learned judge failed to evaluate and analyse the uncontroverted evidence that the suit property was not on a road reserve
- 3.Whether there is any basis for interfering with the exercise of discretion by the learned judge with regard to the reliefs sought
Key legal issues
#Whether the trial judge determined the suit on matters not pleaded or proved
The appeal grounds alleging that the judge decided the suit on unpleaded issues failed, because the reasons for dismissal were squarely before the court and conceded by the appellant himself.
The appellant conceded in evidence that he developed the suit property without written approval of the second respondent, contrary to section 30(a) of the Physical Planning Act. Since the judge's reasons rested on that concession, the claim that a new cause of action was introduced without pleading or evidence was unfounded. Grounds 1, 2 and 3 were accordingly dismissed.
Whether an appellate court may interfere with the trial judge's discretion to refuse an injunction
No; the appellant failed to show that the judge misdirected himself, and the Mbogo v Shah principles therefore precluded interference with the discretionary refusal of an equitable remedy.
Citing Mbogo & Another v Shah, the Court reaffirmed that an appellate court will only interfere with discretion where it is clearly wrong because the judge misdirected himself or acted on wrong considerations. The appellant had admitted developing the buildings without approval, and equity would not sanction that breach by granting an injunction. No misdirection was demonstrated.
Compliance with section 30(a) of the Physical Planning Act as a precondition to equitable relief
A plaintiff who develops property without development permission cannot obtain an injunction, as granting it would sanction his breach of the statute.
The appellant admitted he never obtained written approval for the developments, having only alleged verbal approval. The trial judge found it difficult to justify an injunction for a party who failed to comply with the mandatory development-permission requirement, and the Court of Appeal endorsed that reasoning as properly grounded in the pleadings and the concession.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a trial judge unless it is satisfied that the judge misdirected himself, acted on matters he should not have acted upon, or failed to consider relevant matters, and as a result there has been misjustice.
- No development may be carried out within the area of a local authority without development permission granted by the local authority under section 33 of the Physical Planning Act, and a party in breach of that mandatory provision cannot claim an equitable remedy such as an injunction.
- Where the reasons for dismissal of a suit arise from facts conceded by the plaintiff at trial, the suit cannot be said to have been dismissed on issues that were not before the court.
Court orders
#- 1.Grounds 1, 2 and 3 of the appeal dismissed
- 2.The appeal dismissed in its entirety
- 3.The appellant to bear the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (not explicitly stated; the decision was by 'the learned judge')
- Jurisdiction invoked
- Not expressly stated; appellate jurisdiction of the Court of Appeal over a decision of the High Court (implied by Article 164(3) of the Constitution / first appeal from the High Court).
Relief refused
#Injunction and certiorari against the demolition notice (the reliefs sought in the suit)
The trial judge, in the exercise of judicial discretion, declined to grant an equitable remedy to a party who had developed the suit property without the required development permission, and the Court of Appeal found no basis to interfere with that discretion.
Costs
The appellant shall bear the costs of the appeal. (The trial court had ordered each party to bear its own costs of the suit.)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
All in all, we find this appeal lacking in merit and dismiss it in its entirety. The appellant shall bear the costs of the appeal.
In the circumstances, it cannot be said that the trial court dismissed the appellant’s suit on issues that were not before the court for consideration. The reasons for the dismissal of the suit were properly before the court and were conceded by the appellant.
It is trite law that an appellate court should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been misjustice.
Granting the orders sought herein would be tantamount to sanctioning the plaintifi’s breach of the relevant provisions of the Physical Planning Act.
Issues in the judgment
#The parties' names, the case number and the trial court decision details are not stated in the judgment as provided; the appellant is referred to only as 'the appellant' and the respondents as 'the respondents', which limits the identifiability of this brief.
The judgment does not state the constitutional or statutory basis for the appeal to the Court of Appeal.
The coram listing describes D. K. Musinga as 'JUDGE OF APPEAL (PRESIDENT)' without a rank abbreviation such as 'P' being used in a formal way; he is recorded here as JA (President).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwadzaya v County Government of Kilifi & another (Civil Appeal 46 of 2019) [2025] KECA 869 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/869/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.