Vaitha & 14 others v County Government of Mombasa & 3 others (Constitutional Petition E010 of 2024) [2025] KEELC 824 (KLR)
The bottom line
#Mombasa County was ordered to set up its planning committee and create zoning rules, but residents lost claims over specific building permits.
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 Constitution petition dated April 12, 2024 meets the threshold of a petition
- 2.Whether the 4th respondent had been properly sued in this suit
- 3.Whether the parties herein are entitled to the remedies they seek
- 4.Who bears the costs of this proceedings
Key legal issues
#Competence of the petition and the standard of proof of constitutional violations
The petition was competently before the court, but the petitioners did not discharge the burden of proving the alleged violations with the precision required by the Anarita Karimi Njeru standard.
The court held it had original jurisdiction under article 162(2)(b) over environmental and land use claims. Applying Anarita Karimi Njeru and Communications Commission of Kenya, a petitioner must show the rights infringed, the constitutional provisions contravened and the manifestation of contravention. The photographs, google maps and assertions annexed to the petition, unaccompanied by expert evidence, did not demonstrate how the developments infringed privacy, sanitation or the environment.
Joinder of the 4th respondent (National Construction Authority)
The 4th respondent was improperly enjoined; its mandate under the National Construction Authority Act is registration and quality assurance, not issuing development permits, so no cause of action was demonstrated against it.
Guided by order 1 rule 10(2) of the Civil Procedure Rules, the court found the 4th respondent's statutory functions unrelated to the alleged zoning and planning violations. Since no failure of the 4th respondent in discharging its role was pleaded or proved, the suit against it was struck out while the petition continued against the remaining respondents.
Failure to establish the County Physical and Land Use Planning Liaison Committee
The court found a violation of the petitioners' rights because the 1st and 2nd respondents failed to establish the Liaison Committee required under PLUPA since 2019.
The Liaison Committee is the statutory forum to hear complaints, appeals and disputes on development permissions and to advise the CECM on land use policy. Its absence curtails access to justice and fair hearing under articles 48 and 50, and deprives the county of statutory advice. The court found no plausible excuse for the delay and directed establishment within 90 days.
Failure to enact a zoning/development framework
Although national legislation and the ISUDP 2015-2035 exist so no total lacuna was proved for declaration purposes, the court agreed the 1st respondent had done little and directed enactment of a County Development Control Policy/Plan within 180 days.
The court noted section 8(2) of the County Government Act fills legislative gaps with national legislation and that the ISUDP 2015-2035 was in place. However, it concurred that the 1st respondent had done little, that section 111 of the County Government Act mandates a land use, zoning and building plan, and that six years after PLUPA came into force the county could still claim to be consulting.
Legal principles established
#- Where a county assembly fails to enact legislation required to give effect to a provision of the County Government Act, corresponding national legislation applies until the county assembly enacts the required legislation
- Misjoinder of a party where no cause of action is demonstrated warrants striking out that party but not dismissal of the whole suit
- Constitutional violations must be pleaded and proved with precision; decisions on violations cannot be based on unsupported hypotheses
Court orders
#- 1.A declaration that the 1st and 2nd respondents have violated articles 1(1), 10, 42, 48, 50, 69 and 70 of the Constitution by failing to establish the County Physical and Land Use Planning Liaison Committee as provided under sections 72 and 73 of PLUPA
- 2.A declaration that the 1st and 2nd respondents have violated articles 1(1), 10, 42, 69 and 70 of the Constitution by failing to take legislative and other measures to provide a framework guiding development of land by defining allowed standards of various land uses in different places (zones) within Mombasa
- 3.An order directing the 1st and 2nd respondents to take legislative and other measures to provide a framework guiding development of land within one hundred and eighty (180) days from the date of delivery of the judgment
- 4.An order directing the 1st and 2nd respondents to forthwith establish the County Physical and Land Planning Liaison Committee within ninety (90) days from the date of delivery of the judgment
- 5.An order that the 1st and 2nd respondents carry out public sensitization of the Mombasa Integrated Strategic Urban Development Plan 2015-2035 in print, social, broadcast and digital media within 45 days
- 6.An order that the 4th respondent was improperly joined and is struck out from the proceedings
- 7.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 258 and 162(2)(b) of the Constitution of Kenya, 2010 - the court's original jurisdiction to determine violations of rights relating to the environment and the use and occupation of land
Relief refused
#Declaration that development permits issued by the 1st and 2nd respondents in contravention of the Local Government (Adoptive By-laws) (Building) Order 1968 are irregular and illegal
Petitioners failed to point out which specific sections of the by-laws were violated
Conservatory order restraining the respondents from issuing any further development permits in Mombasa
The Mombasa Integrated Strategic Urban Development Plan 2015-2035 already provides a framework for guiding development and conservatory orders are interim remedies
Costs
Each party to bear its own costs
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.
a declaration be and is hereby made that the 1st and 2nd respondents have violated articles 1(1), 10, 42, 48, 50 69 and 70, of the Constitution of Kenya, 2010 by failing to establish the County Physical and Land Use Planning Liaison Committee as provided under sections 72 and 73 of the PLUPA for the County Government of Mombasa.
That an order be and is hereby made directing the 1st and 2nd respondents take legislative and other measures to provide a framework guiding development of land by deining the allowed standards of various land uses in difierent places[zones] within the county government of Mombasa as was intended by articles 10, 47, 42, 69 and 70 of the Constitution 2010 as read with the County Government Act 2012 within the one hundred & eighty (180) days from the date of the delivery of this Judgement.
That an order be and is hereby issued directing the 1st and 2nd respondents to forthwith establish the County Physical and Land Planning Liaison Committee as provided under the provision of sections 72 and 73 of the PLUPA for the county government of Mombasa within the next ninety (90) days from the date of the delivery of this Judgement.
That the 1st and 2nd respondents be and are hereby ordered to carry out public sensitization of the Mombasa Integrated Strategic Urban Development Plan 2015-2035 in both print, social, broadcast and digital media within the next 45 days from the date of the delivery of this Judgement.
That an order made that the 4th respondent was improperly joined in this suit and hence it be and is hereby struck out from the proceedings.
That each party to bear its own costs.
Decisions on violation of constitutional rights cannot be based upon the unsupported hypotheses.
The court will not therefore grant conservatory orders as sought as I believe the same will serve no purpose.
Issues in the judgment
#The judgment and the final orders refer to 'sections 72 and 73' of PLUPA as establishing the Liaison Committee, while the court itself quotes section 76 as the establishment provision and petitioners' counsel relied on 'sections 77 and 78'; the section numbering is inconsistent within the judgment.
The judgment inconsistently names the county planning instrument as the 'Mombasa Integrated Strategic Urban Development Plan 2015-2035' and the 'Mombasa Integrated Strategic Urban Development Fund 2015-2035'.
The National Construction Authority Act is cited variously as No 41 of 2011 and No 14 of 2011 within the judgment.
The petition is described as pleaded under 'sections 58, 72, 73 and 93 of the Physical & Land Use Planning Act' while the prayer text references sections 72 and 73, but the court's analysis on development permission relies on sections 57 and 58 - a slight internal mismatch.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vaitha & 14 others v County Government of Mombasa & 3 others (Constitutional Petition E010 of 2024) [2025] KEELC 824 (KLR)", Case Analysis (2025). Constitution Petition dated April 12, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/824/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.