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Case Brief · caselaw.co.ke
ELCAllowedELC Petition No. E002 of 2026

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

Environment and Land Court
24 September 2026
3,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Mombasa court halted construction of 18-storey apartment towers because the developer skipped mandatory public participation and planning approvals.

What this practically means

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Executive summary

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The Petitioner, Mital Ashok Shah, moved the Environment and Land Court at Mombasa by Notice of Motion dated 11th May 2026 seeking an injunction to restrain Hi Marhaba Apartments Limited from constructing 18-storey blocks of apartments and offices on Plots Mombasa/Block XXVI/677, XXVI/692 and XXVI/829, alleging that construction commenced without development permission and without public participation. The 2nd Respondent asserted it had lawfully acquired the plots, obtained change of user, consolidation, development permission, building plan approval, a NEMA EIA licence and NCA compliance, and conducted public participation including newspaper advertisement and barazas. The County Government of Mombasa defended its approvals as lawful under the Physical and Land Use Planning Act, 2019. The Court noted that a temporary injunction had been granted ex parte on 11th May 2026 and that the Respondents alleged material non-disclosure by the Petitioner. On the evidence, the Court found that the 2nd Respondent applied for and obtained conditional approval before it was registered as proprietor of the plots, and no written consent of the registered owner under Section 58(4) was exhibited. The NEMA licence covered only Plots 829 and 692, not Plot 677. The Court found no evidence of public participation under the Physical and Land Use Planning Act, holding that EMCA public participation for an EIA licence is a distinct process. Invoking the precautionary principle, the Court allowed the Motion in terms of Prayer (d), restraining further construction until the Respondents prove compliance with the law, with costs of the application to abide the Petition.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 2nd Respondent obtained the requisite development permissions before commencing construction on the suit properties
  2. 2.Whether there was public participation as required under the Physical and Land Use Planning Act, 2019 before grant of development permission
  3. 3.Whether the Petitioner was guilty of material non-disclosure disentitling him from injunctive relief
  4. 4.Whether an interlocutory injunction should issue restraining further construction pending determination of the Petition

Key legal issues

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01

Compliance with Sections 55 and 58(7) and (8) of the Physical and Land Use Planning Act

Holding

The Court was not persuaded that the Respondents complied with the mandatory public participation provisions before commencing construction.

Reasoning

The Court found no evidence of public participation under the Physical and Land Use Planning Act, distinct from that conducted under EMCA for the EIA licence. Sections 58(7) and (8) require notification of the public and invitation of objections on the proposed development to the county executive committee member. Construction on Plot 677 had commenced in February 2026 before development permission was granted.

p. 22
02

Development permission sought before registration of the applicant as proprietor

Holding

The 2nd Respondent applied for and obtained conditional approval before it was registered as proprietor, and no written consent of the registered owner was exhibited.

Reasoning

The 2nd Respondent was registered on 11th March 2026, after the conditional approval of 10th March 2026. Section 58(4) requires a non-owner applicant to obtain the registered owner's written consent. Neither Respondent exhibited such consent, leaving it unclear whether it was availed before the permit issued.

p. 17
03

Scope of the NEMA EIA licence

Holding

The NEMA licence covered only Plots 829 and 692 and made no reference to Plot 677.

Reasoning

A perusal of the licence dated 24th April 2026 showed it allowed construction of two 18-storey buildings on Plots XXVI/829 and XXVI/692 only. Plot 677, on which works had commenced earliest, was not covered by the licence, undermining the Respondents' claim of full regulatory compliance.

p. 16
04

Precautionary principle and interlocutory relief

Holding

Given the apparent failure of public participation, the precautionary principle demanded that further construction be stopped until compliance is proved.

Reasoning

The Court invoked the precautionary principle, holding that where compliance with mandatory planning provisions is unproven, the Court should halt construction pending proof of compliance rather than allow an apparently unlawful development to continue to completion.

p. 23

Legal principles established

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  • Public participation under EMCA for an EIA licence is a distinct process from the public participation required before grant of development permission under Section 57 of the Physical and Land Use Planning Act.
  • Matters in the Third Schedule to the Physical and Land Use Planning Act are for consideration by the County Government and cannot be delegated to another body such as NEMA.
  • An applicant for development permission who is not the registered owner must obtain and provide the registered owner's written consent under Section 58(4) of the Physical and Land Use Planning Act.

Court orders

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  1. 1.Motion dated 11th May 2026 allowed in terms of Prayer No. (d)
  2. 2.Injunction restraining the 2nd Respondent, its agents, employees and servants from conducting and continuing construction and development works on Plots Mombasa/Block XXVI/677, XXVI/692 and XXVI/829 until final hearing and determination of the Petition
  3. 3.Costs of the application to abide the Petition

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution over land and environment disputes

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I was unable to find at this stage any evidence of public participation conducted under the Physical and Land Use Planning Act
p. 18Public participation under planning law
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
p. 23Precautionary principle
I allow the same in terms of Prayer No. (d) thereof
p. 23Final orders
The costs of the application shall abide the Petition
p. 23Costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mital Ashok Shah v County Government of Mombasa & Hi Marhaba Apartments Limited", Case Analysis (2026). ELC Petition No. E002 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5602/eng@2026-09-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.