Lydia Njamiu Nduhiu v Katanu Ngomo & another T/A Miritini Sunshine Academy & 3 Others
The bottom line
#A Mombasa court cancelled approvals for a school built without proper environmental and planning procedures, halting its construction permanently.
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 Defendants breached the Plaintiff's constitutional right to a clean and healthy environment
- 2.Whether the Change of User and development permission for Plot No. 446 Miritini were lawfully obtained
- 3.Whether the 1st Defendant commenced construction before obtaining the requisite EIA and NCA approvals
- 4.Whether the Plaintiff was afforded an opportunity to participate in the approval process
- 5.Whether the licences and approvals issued should be cancelled and an injunction issued
Key legal issues
#Compliance with statutory procedure for Change of User
The Change of User was not undertaken in accordance with the mandatory provisions of the Physical and Land Use Planning Act; the newspaper advertisement ran only 3 days before the application, contrary to the 14-day requirement, and the chronology of approvals was irreconcilable
Regulation 15(g) required notice published for at least 14 consecutive days before the application, yet the advertisement of 12th January 2024 preceded the 15th January 2024 application by barely 3 days. The Director Land Administration approved the Change of User on 16th January 2024 before receiving the County Director's letter of 29th January 2024, suggesting retrospective curing of omissions rather than genuine decision-making.
Premature commencement of construction before EIA and NCA approvals
The 1st Defendant commenced construction before obtaining NEMA's EIA approval and NCA certificate, contrary to the condition in the development permission
The development permission of 16th February 2024 expressly conditioned that no construction should commence before EIA approval by NEMA. The suit was instituted on 10th June 2024 with photographs of on-going construction, yet NEMA approval came only on 11th November 2024 and the NCA certificate on 28th November 2024 - after the suit was filed.
Public participation and right to be heard
The Plaintiff and other neighbours were denied an opportunity to participate in or object to the approval process, violating fair administrative action and environmental rights
Section 58(7) and (8) of the Physical and Land Use Planning Act required public notification inviting objections. Neither the 1st Defendant tendered evidence of notification to the Plaintiff and the public, nor did the 4th Defendant demonstrate that public comments were considered in granting the development approval.
Violation of the right to a clean and healthy environment
The Defendants breached the Plaintiff's constitutional right to a clean and healthy environment
Given the procedural failures and the establishment of a school within a residential area likely to generate noise, traffic and disturbance, the court found the Plaintiff's constitutional environmental right violated and granted the declaration, cancellation and injunction sought.
Legal principles established
#- Approvals and licences procured without following statutory public participation procedures cannot stand
- Where environmental protection procedures are not followed, the right to a clean and healthy environment is presumed under threat
Court orders
#- 1.A declaration that the Defendants are in breach of the Plaintiff's right to a clean and healthy environment
- 2.An order cancelling all licences and approvals issued by the 2nd, 3rd and 4th Defendants to the 1st Defendant for the construction of the school on Plot No. 446 Miritini
- 3.A permanent order of injunction against the 1st Defendant, their servants and/or agents from further construction of Miritini Sunshine Academy on Plot No. 446 Miritini and admission of students thereto
- 4.The 1st Defendant to bear the costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 70 of the Constitution (enforcement of environmental rights) read with EMCA and the Physical and Land Use Planning Act, 2019; Environment and Land Court jurisdiction
Relief refused
#Damages for violation of the right to a clean and healthy environment
The court allowed the suit but did not award the damages claimed, granting only declaration, cancellation and injunction
Costs
The 1st Defendant shall bear the costs of this 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.
Accordingly, I hereby allow the Plaintiff's suit and hereby issue orders as follows;
An order is hereby issued cancelling all the licences and approvals issued by the 2nd, 3rd and 4th Defendants to the 1st Defendant for the illegal construction of the school on Plot No. 446 Miritini;
A permanent order of injunction is hereby issued against the 1st Defendant, their servants and/or agents from further undertaking construction of the said Miritini Sunshine Academy on Plot No. 446 Miritini and admission of students thereto;
The only reasonable inference one can make from that confusion was that the correspondence was not part of a genuine decision making process but rather an attempt to retrospectively cure the omissions in the process of approval.
the EIA and change of user licences displayed by the 1st and 2nd Respondents cannot stand where the law was not followed and whose effect denied the Petitioner an opportunity to interrogate whether the Respondents had put in safeguards to ensure their right to a clean and healthy environment would not be violated.
Issues in the judgment
#Judgment delivery date stated as 2026, apparently anomalous given 2024 filing and 2025 defence dates
Approval letter dated 16th January 2024 precedes the County Director's letter of 29th January 2024 relied on in the approval process
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lydia Njamiu Nduhiu v Katanu Ngomo & another T/A Miritini Sunshine Academy & 3 Others", Case Analysis (2026). ELC Suit No. E010 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5613/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.