Mital Ashok Shah v County Government of Mombasa & Hi Marhaba Apartments Limited
The bottom line
#A Mombasa court halted construction of 18-storey apartment towers because the developer skipped mandatory public participation and planning approvals.
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 2nd Respondent obtained the requisite development permissions before commencing construction on the suit properties
- 2.Whether there was public participation as required under the Physical and Land Use Planning Act, 2019 before grant of development permission
- 3.Whether the Petitioner was guilty of material non-disclosure disentitling him from injunctive relief
- 4.Whether an interlocutory injunction should issue restraining further construction pending determination of the Petition
Key legal issues
#Compliance with Sections 55 and 58(7) and (8) of the Physical and Land Use Planning Act
The Court was not persuaded that the Respondents complied with the mandatory public participation provisions before commencing construction.
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.
Development permission sought before registration of the applicant as proprietor
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.
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.
Scope of the NEMA EIA licence
The NEMA licence covered only Plots 829 and 692 and made no reference to Plot 677.
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.
Precautionary principle and interlocutory relief
Given the apparent failure of public participation, the precautionary principle demanded that further construction be stopped until compliance is proved.
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.
Legal principles established
#- 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
#- 1.Motion dated 11th May 2026 allowed in terms of Prayer No. (d)
- 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.Costs of the application to abide the Petition
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
I allow the same in terms of Prayer No. (d) thereof
The costs of the application shall abide the Petition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.