Ndung'u v County Government of Kwale & 4 others (Petition E002 of 2025) [2026] KEELC 3541 (KLR)

ZONAL REGULATIONS SET BY THE SOCIETY AND THE PEOPLE OF KWALE, DIANI AND IN THE MATTER OF VIOLATION OF THE RIGHT TO PUBLIC PARTICIPATION AND IN THE MATTER OF BREACH AND VIOLATION OF THE PROVISIONS OF THE LAND REGISTRATION ACT AND IN THE MATTER OF THE PUBLIC OFFICERS ETHICS ACT AND IN THE MATTER OF ACTIVITIES DELETERIOUS TO THE ENVIRONMENT ON KWALE DIANI COMPLEX 25 AND IN THE MATTER OF ACTS AND OMISSIONS AND CONDUCT THAT AREDELETERIOUS TO THE ENVIRONMENT SAMSON MBURU NDUNG’U ………… PETITIONER/APPLICANT - VERSUS -

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THE COUNTY GOVERNMENT OF KWALE …1ST RESPONDENT THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY……………………………………….. 2ND RESPONDENT THE MINISTRY OF LANDS AND PHYSICAL PLANNING ………………..... 3RD RESPONDENT THE NATIONAL CONSTRUCTION AUTHORITY ……………………………..……... 4TH RESPONDENT AYCE INVESTMENTS LIMITED ……………..5TH RESPONDENT RULING I. Introduction 1. The Honourable court was tasked with the determination of two ( 2 ) applications. The first application is dated 3 rd September, 2025 by Samson Mburu Ndung’u, the Petitioner/Applicant herein while the second one is dated 22nd October 2025 by Ayce Investments Limited, the 5th Respondent.

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2. The court will determine both applications simultaneously though separately under this ruling for clarity sake. II. The Notice of Motion application dated 3 rd September 2025 3. The application was made pursuant to the provisions of Articles 19, 20, 21, 22, 25,162 [2] and 258 of the Constitution of Kenya, 2010, Rule 4 of the Constitution of Kenya [Protection of Rights and Fundamental Freedoms] Practice & Procedure Rules 2013 [“The Mutunga Rules] and all other enabling provisions of the law. 4. The Petitioner/Applicant sought for the following orders:a) Spent. b) That an order restraining the 5 th Respondent, its agents, parties or assigns interference, transfer KWALE/DIANI from or continued dealings COMPLEX/25 on pending development, property number hearing and determination of this application. c) A conservatory order be issued restraining the 1 st 2nd and 3rd Respondents from issuing any further developments permits for developments of properties above two storeys and 25 % land use within the low density residential[LDR] zone of Kwale County that is Robinson Forest Kinondo Tiwi area and

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from southern palm hotel to Indian Ocean Beach Club pending hearing and determination of the application. d) That an order restraining the 4 th Respondent, its agents, parties or assigns interference, transfer KWALE/DIANI from or continued dealings COMPLEX/25 on pending development, property number hearing and determination of the petition. e) A conservatory order be issued restraining the 1 st 2nd and 3rd Respondents from issuing any further developments permits for developments of properties above two storeys and 25 % land use within the low density residential[LDR] zone of Kwale County that is Robinson Forest Kinondo Tiwi area and from southern palm hotel to Indian Ocean Beach Club pending hearing and determination of the Petition. f) Costs of the application be provided. 5. The application was premised upon grounds, testimonial facts and the averments made out under the 20 Paragraphed Supporting Affidavit sworn on 3rd September 2025 by the Applicant SAMSON MBURU NDUNG’U together with annextures marked as “KMK – 1 to 3 annexed thereto. He averred as follows:a) He was the Petitioner/Applicant herein and authorised and competent to swear this Affidavit. hence

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b) On 12th August while the Petitioner was going about his daily duties and activities he noticed demolition going on in the suit property LR. No. KWALE/DIANI COMPLEX/25. That he sought for clarification on the state of the development that was to be undertaken therein which included the model, design and storey levels. c) Together with other members of the public they were informed that developing a the developer three storey had the building intention of within the aforementioned property and that they all moved to the 1st Respondent office to seek clarification and to confirm the state of the development. d) The 1st Respondent informed them that the relevant approvals had already been issued and nothing could be done to stop the developments. e) The Petitioner averred that he had since been denied access to information on the above mentioned developments from the Respondents and had further brushed off complaints and challenges raised by the Petitioner more specifically that the county planning, standards and permitted development do not allow for

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construction of more than two storey buildings nor develop to more than 25% of the land area. f) None of the Respondents had shown willingness to preserve the dignity and agreements of the locals by ensuring full compliance of the Planning standards. g) The approvals issued to the 4th Respondent by the 1st, 2nd, 3rd and 4th Respondents The rest of the Respondents were acquired illegally and irregularly as they were not subjected to any public participation nor put through consideration of the greater public who form part of the neighbourhood. h) The said Development by the 5 th Respondents shall form the first third storey development in the Zone 2 as a Low Density Residential, evidencing the fact that traditionally no such developments were ever allowed being that the public had set up Zonal Laws and Directions limiting construction to a maximum of two storey buildings. i) Allowing the said development will out the whole Diani area at risk as further developers will follow suit being that the public had set up zonal laws and directions limiting construction to a maximum of two storey buildings.

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j) No public participation was allowed and that if any gazettement was undertaken then the same was to the detriment of the locals who have limited access to such mode of news. k) The actions by the Respondents were irregular and illegal more specifically being that no public participation was conducted prior to the issuance of a Change of User to the 4th Respondent nor consideration of the approvals granted. l) The principles of public participation were never followed strictly by the Respondents as laid - down in the BBI case. m) Considering that the project by the 5 th Respondent was an alteration of the existing Zonal Laws, and agreeable designs there was need to ensure that proper public participation was conducted before any approvals. n) While there was a requirement for gazettement, the Respondent were aware that the majority of the people affected would be locals who may not have access to any gazettement or newspapers. o) The Respondents bore the duty to make sure the details of the project were communicated promptly to the people and their necessary comments be taken in for consideration before being allowed, This process was

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never conducted and hence the whole exercise failed the test of public participation and thus a breach of the law and Right on access to information. p) Without the intervention of the court the instant Petition will render moot and will be an affront to the people’s rights. III. The Responses to the application dated 3rd September, 2025 by the 2nd Respondent 6. Upon service, the application was opposed by the 2 nd Respondent through the 14 Paragraphed Replying Affidavit dated 24th November 2025 sworn by Edith Kalo, the County Director of Environment of the County of Kwale whereby she averred as follows that:a) She was a female adult of sound mind and hence in her her official capacity and designation was familiar to the facts of the case thus competent to sign this Affidavit. b) The 2nd Respondent NEMA was the principal instrument of government established under the provision of Section 7 of the Environment Management & Co - ordination Act, (Hereinafter referred to as “The EMCA, 1999”) mandated to exercise general supervision and coordination over all matters relating to the environment.

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c) In order to achieve its core objective the authority in consultation with other lead agencies has prescribed rules and guidelines under the Environment Impact Assessment [EIA] reports as per the provisions of Section 58 of EMCA and the relevant regulations. d) Pursuant to the prescribed rules and guidelines, it was a requirement that the proponent of any project specified in the second schedule of EMCA undertook Environmental Impact Assessment and submitted report to the authority prior to being issued with an EIA license by the authority. e) The instant application was filed by the Applicants seeking to have this Court set aside the decision by the 2 nd Respondent to issue permit approval reference no. NEMA/EIA/PSL/39681. f) Pursuant to the prescribed Rules and Guidelines, it was a requirement that a proponent of any project specified in the Second Schedule of EMCA undertakes environmental Impact assessment and submit the report to the Authority, prior to being issued with an Environmental Impact Assessment (EIA) license by the Authority. g) The 1st Respondent held a lawfully obtained EIA license no NEMA/EIA/PSL/39681 issued on 19th May 2025.

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h) The authority received an EIA project report in application ID NEMA/EIA/PSR/60657 done by Joseph M Kyalo license Reg No 8836 on 6th May 2025 on behalf of the proponent pursuant to Section 58 of EMCA 1999. The same was assigned EIA report reference No NEMA/KWAL/PR/5/2/1537. i) The authority had proceeded to contact the relevant lead agencies and committees in accordance with the law requesting views on the development. They received concerns/complaint from project Kenya NGO on 9 th May, 2025 through a letter dated 8th May, 2025 as authored by Malusha Abedi objecting the development. j) The authority acted and reviewed the comprehensive report and raised several issues that needed to be addressed on the letter dated 14th May, 2025. The 5th Respondent responded to the issues raised in a letter dated 15th May, 2025 and a license was issued with conditions to the 5th Respondent. k) The allegations of violations of the Petitioner’s rights to fair administrative action as alleged were denied. IV. Responses by the 5th Defendants/Respondents to the application dated 3rd September, 2025.

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7. While opposing the application by the Petitioners/Applicants dated 3rd September, 2025, the 5th Respondent on the other hand filed a 21 Paragraphed Replying Affidavit dated 22nd October, 2025. It was sworn by Anish Doshi. He averred as follows that:a) He was an authorised officer of the 5 th Respondent and hence competent to swear this affidavit on its behalf. b) The Petition was misconceived, fatally defective and an abuse of the due process of the Law. c) the development on parcel no LR. No Kwale/Diani Complex/25 had been lawfully approved for development after rigorous scrutiny by all the relevant statutory bodies. d) The approvals were granted after full compliance with statutory requirements inclusive of public participation and feedback, an EIA [Environmental Impact Assessment]. e) The processes leading to the said approvals included public participation confirming that environmental and the the project safeguards as Environmental met the mandated License required under the Environmental Management and Co - ordination Act. f) The National Construction Authority (NCA) registered and approved the project, confirming that bit complied with

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the National Construction standard and Safety requirements. g) These approvals were not granted lightly. They followed the established statutory processes each requiring rigorous scrutiny before a decision was reached, h) Once the competent statutory bodies had exercised their mandates lawfully and granted approvals, such decisions stood valid and enforceable unless properly reviewed or set aside through the procedures provided for by law. i) Public participation was an integral part of the approval process. The mechanisms for public notice and stakeholders engagement were observed as is required. Members of the public were notified and given the opportunity to present comments and objections before approvals were issued. j) No substantive objections were raised or sustained at that stage, The Petitioner could not therefore claim at this stage that public participation was wholly absent when the statutory process expressly provided for it. k) The suggestion that there existed “traditional Zonal Laws” barring development beyond two storeys was misplaced. The only binding standards were those enacted or formally

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adopted through statutory instruments or County By – Laws. l) At paragraph 6 of the affidavit, the deponent stated that once the statutory regulators had been called upon to exercise their constitutional and statutory mandate then the court cannot be invited to sit on appeal over the decisions of such competent and specialised agencies in the absence of demonstrated illegality or procedural impropriety. m) Disputes concerning planning permissions and development approvals were required by law to be lodged before the relevant County Physical and Land Use Planning Liasion Committee. That mechanisms existed to precisely address grievances of the kind raised by the Petitioner. n) The Physical and Land Use Planning Act 2019 clearly provides for a County Physical and Land Use Planning Liaison Committee were established to hear and determine disputes relating to development permissions, zoning and density of development. o) The Petitioner had deliberately bypassed this statutory mandatory mechanism and rushed to court without

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exhausting the remedies available under the act hence offended the principle of the doctrine of exhaustion of remedies. p) It rendered the application and the Petition incompetent, premature and unprocedurally unsustainable before court. q) The allegations of violation of rights to a clean environment were unfounded as there was the EIA license duly issued by NEMA after comprehensive consideration and public participation. r) The Petitioner had not met the threshold for grant of conservatory orders and neither had he demonstrated a prima facie case, irreparable harm and balance of convenience and hence it ought to be struck out and dismissed with costs. V. The Notice of Motion application dated 22 nd October, 2025 by the 5th Respondent 8. The application was brought under the provisions of Section 13 (7)(a) of the Environment and Land Court Act, No. 19 of 2011. The Applicant sought for the following orders:a) THAT, this Honourable Court be pleased to order the Petitioner, SAMSON MBURU NDUNG’U, to furnish security for

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costs in the sum of Kenya Shillings Five Million (Kshs. 5,000,000.00) within such period as the Court may deem just, to be deposited either in Court or in a joint interestearning account in the names of the advocates for the Petitioner and the 5th Respondent, pending the hearing and determination of this Petition. b) THAT, in default of compliance with Order 1 above within the stipulated period, the Petition and all pending applications therein be stayed and/or struck out with costs to the 5th Respondent. c) THAT, the Honourable Court be pleased to find and hold that the Petition as filed is frivolous, vexatious, and an abuse of the court process, and is intended to delay a lawfully approved development and to expose the 5 th Respondent to undue financial prejudice and reputational injury. d) THAT, pending compliance with the order for security for costs, there be a stay of further proceedings in this Petition. e) THAT, the costs of this application be borne by the Petitioner in any event. 9. The application was premised on the grounds, testimonial facts and the averments made out under the 19 Paragraphed Supporting Affidavit of JACKSON MUCHIRI an Advocate of the High Court of Kenya, and the one having

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the conduct of this matter on behalf of the 5 th Defendant who averred as follows that:a) He was well conversant with issues in this appeal and duly authorized and competent to swear the affidavit. b) The application sought for an order for the Petitioner to be compelled to furnish Court security for Costs in the sum of Kenya Shillings Five Million (Kshs. 5, 000, 000/=) pending the hearing and determination of the Petition. c) The present Petition was a broad, speculative and unsubstantiated claim brought under the guise of a constitutional and environmental cause, yet it sought to frustrate a lawfully approved and ongoing commercial development on Land Reference No. Kwale Diani Complex d) The 5th Respondent lawfully obtained all requisite approvals from the relevant statutory bodies, including the County Government of Kwale, the National Environment Management Authority (NEMA), and the National Construction Authority, after full compliance with statutory procedures and public participation requirements. Despite this compliance, the Petitioner has filed this Petition with sweeping allegations of constitutional and environmental violations but without presenting a single cogent

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document, scientific report, or expert evidence to substantiate the alleged harm. e) The Petition was therefore frivolous, vexatious, and calculated to delay and obstruct a legitimate and beneficial investment, to the great detriment of the 5 th Respondent, its financiers, and the local community that stands to gain from the project. f) The 5th Respondent had incurred substantial financial obligations in relation to this development and is continuously exposed to mounting costs arising from this litigation, including legal fees, consultant fees, and delays occasioned by court proceedings. g) The Petitioner was an individual of unknown financial means who has not demonstrated any capacity to satisfy an order for costs should this Honourable Court dismiss the Petition, yet the 5th Respondent continued to suffer financial prejudice defending an evidently baseless cause. h) According to the 5th Respondent, unless the Petitioner was ordered to deposit security for costs, there exists a real and substantial risk that the 5 th Respondent will never recover any part of its costs in the event of success,

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thereby occasioning grave injustice and abuse of court process. i) The Petition raised no new constitutional or environmental question requiring judicial intervention, and is in fact a collateral attack on the lawful statutory mandates and decisions of specialized agencies such as NEMA and the County Physical and Land Use Planning Liaison Committee established under the Physical and Land Use Planning Act, 2019. j) This Honourable Court had wide and unfettered discretion under the provision of Order 26 Rules 1 and 2 of the Civil Procedure Rules, 2010, Section 13(7)(a) of the Environment and Land Court Act, No. 19 2011, and its inherent jurisdiction to order a party to provide security for costs where the justice of the case demands such protection. k) In the case of:- “Kuria Kanyoko t/a Amigos Bar and Restaurant – Versus - Francis Kinuthia Nderu & Others [1988] eKLR’, the Court affirmed that the purpose of ordering security for costs was to protect defendants from being dragged into unnecessary litigation by impecunious plaintiffs who would be unable to meet costs if the suit

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failed. Similarly, in the case of:- “Ocean View Beach Hotel Ltd – Versus - Salim Sultan Mollo & 5 Others [2012] eKLR”, the Court observed that where the financial standing of a Petitioner is doubtful and the respondent is exposed to heavy financial burden, an order for security for costs is proper and just. l) In light of the complexity of this Petition, the number of Respondents involved, the nature of the allegations made, and the scale of the investment at stake, a sum of Kenya Shillings Five Million (Kshs. 5,000,000.00/=) was reasonable, modest, and proportionate to safeguard the 5th Respondent’s right to fair treatment in these proceedings. A copy of the estimated project cost as submitted to NCA was attached showing a project cost of Kenya Shillings Seven Fifty Eight Million Four Thirty Thousand One Eighty One Hundred and Sixty Two Cents (Kshs. 758,430,181.62/=) m) Directing the Petitioner to deposit the said sum in a joint interest-earning account in the names of counsel for both parties would not prejudice the Petitioner in any way but would serve the ends of justice by ensuring accountability and fairness to all sides. that unless this Honourable Court

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intervened, the 5th Respondent stood to suffer immense prejudice, financial loss, and continued disruption of its lawful business operations caused by a Petition that was devoid of merit and filed without any demonstrable public interest. VI. Applicants response to the application dated 22 nd October 2025 10. While perusing the court records and pleadings giving rise to the applications before court, both the Judiciary CTS Portal and the ELC Registry, I have not come across any response to the application dated 22 nd October 2025 from the applicant. Thus, its assumed that it unopposed. 11. It is noteworthy that on 26th November 2025 when parties appeared before this Honourable Court for mention, Mr Karimu counsel for the 2nd Defendant intimated that they had no intend on opposing the notice of motion dated 22nd October 2025. Mr Muchiri for the 1st Respondent never addressed the court over the application but sought for a ruling date. The Petitioner/Applicant was unrepresented on the said date. VII. Submissions

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12. On 23rd October 2025, while in the presence of all the Counsels for the Petitioner and the 5th Respondent herein, the Honourable Court directed parties to canvass both applications by way of written submissions. At the time of writing this ruling, only the Petitioner/Applicant had complied with the said order in relation to the application dated 3rd September 2025. This court will nevertheless proceed to render its verdict on merit whatsoever. A. The Written Submissions by the Petitioner/Applicants 13. The Law firm of Messrs. Abdullahi Yusuf & Company Advocates filed their written submissions dated 10 th February 2026 on behalf of the Petitioner/Applicant herein. Mr. Sadik Advocate identified the following issues for determination; a. Whether the Applicant had met the threshold for grant of conservatory orders. b. Whether the approvals issued to the 5th Respondent disclosed a prima facie violation of the Constitution, particularly the right to public participation and the right to a clean and healthy environment.

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c. Whether the impugned development posed a real risk of environmental harm warranting application of the precautionary principle. d. Whether the approvals were granted without meaningful public participation, contrary to Articles 10 and 47 of the Constitution, thereby warranting preservation of the status quo in the public interest. 14. On whether the Applicant had met the threshold for grant of conservatory orders. The Learned Counsel submitted that in addressing the legal principles that govern the grant of conservatory orders, the Applicant relied on authoritative jurisprudence illustrating the public-law nature of such relief. The applicant placed reliance on the principles set in the cases of:- “ Giella – Versus - Cassman Brown” and the holding in “Gatirau Peter Munya – Versus – Versus - Dickson Mwenda Kithinji & 2 Others [2014] eKLR” and stated that conservatory orders are not assessed solely on private-law tests (such as irreparable harm or probability of success), but instead on the inherent merits of the case in light of constitutional values and the public interest.

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15. The Learned Counsel submitted that where there was an inherent merit of a case. Further, that there was public interest that was of major concern, the court ought to ensure that the subject matter was conserved. That the mere fact that there was probable facts, this court ought to ensure that the subject matter was preserved as it was and not let the entire process proceed and end up being an academic exercise. Further, as articulated in the case of as “Kaibe – Versus - Director of Criminal Investigations & 8 Others [2025] KEНС 3190 (KLR)”, the same principles were reaffirmed to emphasize that the Court should examine whether: a. the substantive case is arguable and not frivolous; b. the relief sought, if not granted, would render the petition nugatory; c. and it is in the public interest that the order be granted. 16. It was submitted that the instant case was not frivolous. The facts deposed in the current case are adequate enough to raise the Court's inherent attention. The Petitioner sought to protect the traditional setup of the

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town as initially zoned, it ought to be protected as it was until such a time that this suit was determined. 17. On whether the approvals issued to the 5 th Respondent disclose a prima facie violation of the Constitution, particularly the right to public participation and the right to a clean and healthy environment. The Learned Counsel submitted that Respondent the approvals disclosed a granted prima facie to the 5 th constitutional violation. Under the provision of Articles 10 and 47 of the Constitution, all administrative and planning decisions must respect the principles of good governance, transparency, accountability, and public participation. That development approvals were not mere bureaucratic exercises; they constitute administrative acts that directly impact the rights of residents, the environment, and the orderly development of the community. 18. The Learned Counsel submitted that in the present case, the evidence before the Honourable Court demonstrated that the approvals were issued without any form of consultation, notification, or engagement with the residents of Diani. That the affected community, whose environmental and property interests are directly

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implicated, was neither informed nor given an opportunity to participate in the decision-making process. This omission was not a trivial procedural lapse; it was a direct contravention of the constitutional requirements for public participation. 19. Reference was made to the principle that public participation must be real, substantive, and not illusory is firmly established in Kenyan jurisprudence. In the case of “Robert N. Gakuru & Others – Versus - Governor Kiambu County & 3 Others of 2017 (Court of Appeal)”. Although this decision arose in the context of county fiscal legislation, the underlying principle is equally applicable to planning and zoning decisions, which have direct and tangible effects on the rights of residents and the environment. Meaningful public participation in such decisions requires: Dissemination of relevant information about the proposed development; Opportunity for residents and stakeholders to engage, ask questions, and express concerns; and Actual consideration of the views and inputs received before approvals was granted. 20. It was stated that the absence of these steps in the present case constituted a prima facie violation of the

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Constitution. Counsel submitted that in conclusion, the approvals granted to the 5th Respondent were issued without meaningful public participation, thereby disclosing a prima facie constitutional violation of Articles 10 and 47 of the Constitution. 21. On whether the impugned development poses a real risk of environmental harm warranting application of the precautionary principle. It was submitted that the impugned development posed a real and imminent risk of environmental harm, which engaged the precautionary principle and justified interlocutory intervention. At this stage, the Court was entitled and indeed obligated to err on the side of caution in environmental matters the court was referred to the holding in the case of:- “ Ken Kasinga – Versus - Daniel Kiplagat Kirui & 5 Others [2015] eKLR”, the Environment and Land Court held that the Court must err on the side of caution and preserve the environment. 22. On what environmental conservation remedy would the court offer at this stage. It was submitted that the Applicant's uncontested evidence shows that construction had already commenced. Unless restrained, the development will progress to a stage where both

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environmental and zoning harms will be irreversible, effectively rendering the Petition academic. For these reasons, the Applicant submitted that the precautionary principle mandates the grant of conservatory orders to halt the development pending determination of the Petition. That in light of the lack of meaningful participation and the compelling public interest, it was justified and indeed necessary for this Honourable Court to preserve the status quo pending determination of the Petition. VIII. Analysis & Determination. 23. I have carefully read and considered the pleadings herein by the Applicant provisions of the and Respondents, Constitution of the Kenya, relevant 2010 and statutes. 24. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has framed the following four [4] issues for its determination. These are: a) Whether the Notice of Motion application dated 3rd September, 2025 meets the threshold for the issuance of conservatory orders b) Is there a legitimate claim before court?

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c) Whether the Notice of Motion application dated 22 nd October 2025 for security for costs is merited d) Who bears the costs of both applications dated 3rd September 2025 and 22nd October 2025? ISSUE No. a). Whether the Notice of Motion application dated 3 rd September, 2025 meets the threshold for the issuance of conservatory orders 25. Under this Sub – heading, the Honourable Court will be examining Conservatory the legal orders. parameters The principles for granting for granting Conservatory Orders were stated in the case of:- “ Board of Management of Uhuru Secondary School - Versus - City County Director of Education and 2 Others (2015) eKLR” where the court summarized the principles for the grant of conservatory orders and stated as follows: “(i)The needs for the applicant to demonstrate an arguable prima facie case with likely hood of success and to show that in the absence of the conservatory orders he is likely to suffer prejudice. (ii)The secondary principal in whether the denial of the conservatory order will enhance the constitutional

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values and objects of the specific right or freedom in the bill of rights. (iii)The court should consider whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. (iv)Whether the public interest would be prejudiced by a decision to exercise discretion to grant or deny conservatory order.” 26. Further, the law on conservatory orders is now well settled in this jurisdiction and is backed by myriad of authorities for instance, in the case of: “Centre for Rights Education and Awareness (CREAW) & another – Versus Speaker of the National Assembly & 2 others [2017] eKLR” the court was emphatic that: “A party who moves the court seeking conservatory orders must show to the satisfaction of the court that his or her rights are under threat of violation; are being violated or will be violated and that such violation, or threatened violation is likely to continue unless a conservatory order is granted. This is so because the purpose of granting a conservatory order is to prevent violation of rights and fundamental freedom and preserve the subject matter pending the hearing and determination of a pending case or Petition.”

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27. Additionally, in the case of:- “Privy Council Case of Attorney General – Versus - Sumair Bansraj (1985) 38 WIR 286”, Braithwaite JA expressed himself follows: “Now to the formula. Both remedies of an interim injunction and an Interim declaration order are excluded by the State Liability and Proceedings Act, as applied by Section 14 (2) and (3) of the Constitution and also by high judicial authority. The only judicial remedy is that of what has become to be known as the “conservatory order” in the strictest sense of that term. The order would direct both parties to undertake that no action of any kind to enforce their respective right will be taken until the substantive originating motion has been determined; that the status quo of the subject matter will remain intact. The order would not then be in the nature of an injunction, … but on the other hand it would be well within the competence and jurisdiction of the High Court to “give such directions as it may consider appropriate for the purpose of securing the enforcement of … the provisions” of the Constitution…In the exercise of its discretion given under Section 14 (2) of the Constitution the High Court would be required to deal expeditiously with the application, inter - partes, and not ex - parte and to set down the substantive motion for hearing within a week at most of the interim conservatory order. The substantive motion must be heard forthwith and the rights of the parties determined. In the event of an appeal priority must be given to the hearing of the appeal. I have suggested this formula because in my opinion the interpretation of the word in Section 14 (2) “subject to Sub - Section (3) and the enactment of Section 14 (3) in the 1976 Constitution must have…the effect without a doubt of taking away from the individual the redress of injunction which was open to him under the 1962 Constitution. On the

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other hand, however, the state has its rights too…The critical factor in cases of this kind is the exercise of the discretion of the judge who must “hold the scales of justice evenly not only between man and man but also between man and state.” 28. The aforesaid principles were adopted by the High Court of the “Republic of Trinidad and Tobago in Steve Furgoson & another – Versus - The AG & another Claim No CV 2008 – 00639 – Trinidad & Tobago”. The Honourable Justice V Kokaram in adopting the reasoning in the case of Bansraj above stated: “I have considered the principles of East Coast Drilling – Versus - Petroleum Company of Trinidad and Tobago Limited (2000) 58 WIR 351 and I adopt the reasoning of BANSRAJ and consider it appropriate in this case to grant a conservatory order against the extradition of the claimants pending the determination of this motion. The constitutional challenge to the Act made in this case is on its face a serious one. The Defendant has not submitted that the constitutional claim is unarguable. The claimants contends that the Act is in breach of our fundamental law and the international obligations undertaken were inconsistent with supreme law. It would be wrong in my view to extradite the claimants while this issue is pending in effect and which will render the matter of the constitutionality of the legislation academic.” 29. The principles in regard to the granting of interim or conservatory orders were outlined by the Supreme Court in the case of “Gatirau Peter Munya – Versus - Dickson Mwenda Kithinji

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& 2 Others, Supreme Court Application NO. 5 of 2014 (2014) eKLR”, where the Court held that:[85] These are issues to be resolved on the basis of recognizable concept. The domain of interlocutory orders is somewhat ruffled, being characterized by injunctions, orders of stay, conservatory orders and yet others. Injunctions, in a proper sense, belong to the sphere of civil claims, and are issued essentially on the basis of convenience as between the parties, and of balances of probabilities. The concept of “stay orders” is more general, and merely denotes that no party nor interested individual or entity is to take action until the Court has given the green light. [86] “Conservatory orders” bear a more decided public-law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the Court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the supplicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.” (Emphasis added). 30. The principles in regard to grant of Interim conservatory orders were further reiterated in the case of “Nubian Rights Forum & 2 others – Versus - Attorney General & 6 others; Child Welfare Society & 8 others (Interested Parties); Centre for Intellectual Property & Information Technology (Proposed Amicus Curiae)

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Petition Nos. 56, 58 & 59 of 2019 [2019] eKLR” , where the Court observed that:[91] This Court is granted powers to issue conservatory orders in Constitutional Petition under Article 23 (3) (c) of the Constitution and Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and procedure Rules 2013. [92] The applicable principles for the grant of conservatory orders were detailed by Onguto J. in Board of Management of Uhuru Secondary School – Versus - City County Director of Education & 2 Others [2015] eKLR. In summary, the principles are that the Applicant ought to demonstrate an arguable prima facie case with a likelihood of success and that in the absence of the conservatory orders he is likely to suffer prejudice. Further, the Court should decide whether a grant or a denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights, and whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. Lastly, that the Court should consider the public interest and relevant material facts in exercising its discretion whether, to gnat or deny a conservatory order. [93] We are also guided by the principle that in determining whether or not to grant conservatory orders, the Court must bear in mind that it is not required to enter into a detailed analysis of the facts and the law. As Musinga, J (as he then was) observed in High Court Petition No.16 of 2011, Nairobi – Centre for Rights Education and awareness (CREAW) & 7 others” “…It is important to point out that the arguments that were advanced by Counsel and that I will take into account in this ruling relate to the prayer for a Conservatory order in terms of prayer 3 of the Petitioner’s Application and

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not the Petition. I will therefore not delve into a detailed analysis of facts and law. At this stage, a party seeking a Conservatory order only requires to demonstrate that he has a prima facie case with a likelihood of success and that unless the court grants the Conservatory order, there is real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.” [105] We have already found that the Petitioners have established, and the Respondent have conceded that there is a risk of prejudice being caused to members of the public and their right to privacy by the disclosure of certain types of personal information in the absence of proposals on how that data will be protected. As regards where the public interest falls in light of the respective prejudices that will be caused if the implementation of NIIMS is stayed, we are persuaded by the definition of public interest by the Indian Supreme Court in the case of Dattraj Nathuji Thaware – Versus - State of Maharashta, Indian & Others [2004] INSC 755 S.C 755 of 2004 which adopted the meaning of public interest as set out in Stround’s Judicial Dictionary Vol. 4 (v Ed) as: “A matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.” [106] We take the view that it is in the public interest to have an efficient and organized system of registration of persons, and the responsible use of resources in the process, in light of the socio-economic gains of the system that have been illustrated by the Respondents. There is, however, also a public interest in ensuring that the said system does not infringe on fundamental rights and freedoms. There is thus a need for a balancing of the competing public interest rights while the consolidated Petitions are heard, so as to safeguard

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rights and resources, and ensure that the Petitions are not rendered nugatory.” (Emphasis Added). 31. The provision of Article 23 of the Constitution of Kenya as read with the provisions of Article 165 and Rule 23 of the Constitution of Kenya (Protection of rights and Fundamental Freedom) Practice and Procedure Rules, 2013, (otherwise referred to as “the Mutunga Rules”) clearly grants this Honorable court powers to hear and determine an application for conservatory orders or interim orders in order to secure the subject matter in dispute. Rule 23 of the Mutunga Rules provides: “1) Despite any provision to the contrary, a Judge before whom a petition under rule 4 is presented shall hear and determine an Application for conservatory or interim order. 2) Service of the application in sub rule (1) may be dispensed with, with leave of the Court.” 32. The principles guiding the decision whether or not to grant conservatory orders were succinctly set out by Onguto, J in Board of “Management of Uhuru Secondary School – Versus - City County Director of Education & 2 others (2015) eKLR” , who set out the same as hereunder: i. The applicant ought to demonstrate an arguable prima facie case with a likelihood of success, and that in the absence of the conservatory orders sought, he is likely

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to suffer prejudice as a result of the violation or threatened violation of the Constitution; ii. Secondly, once the applicant has established to the court’s satisfaction a prima facie case with a likelihood of success, the court is then to decide whether a grant or denial of the conservatory relief will enhance the constitutional values and objects of the specific right or freedom of the Bill of Rights; iii. Thirdly, flowing from the first two principles is whether if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory. It is indeed the business of the court to ensure and secure as far as possible that any transitional motions before the court do not render nugatory the ultimate end of justice; iv. The court must consider conservatory orders also in the face of public interest dogma; and v. Finally, the court is to exercise its discretion in deciding whether to grant or deny a conservatory order. The court must consequently consider all relevant material facts and avoid immaterial matters. The court will consider the applicant's credentials, the prima facie correctness of the availed information, whether the grievances are genuine, legitimate, and deserving, and finally, whether the grievances and allegations are grave and serious or merely vague and reckless. 33. Therefore, from various authorities of the courts the principles required to be satisfied before granting conservatory orders or interim conservatory orders comprise of the following: a. First, an applicant must demonstrate an arguable prima facie case with a likelihood of success, and to show that in

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the absence of the conservatory orders, he/she is likely to suffer prejudice. b. The second principle is whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights. c. Thirdly, the court should consider whether, if an interim conservatory order is not granted, the Petition or its substratum will be rendered nugatory. d. The final principle for consideration is whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order. 34. It is the Petitioner’s case that the developments on the suit property are illegal as the same are against the zonal laws and directions of the location where the suit property is located. That the laws in the particular place limit construction to a maximum of two storey buildings. The Petitioner further alleged that the approvals issued to the 5th Respondent allowing it to commence and continue with the development had been acquired illegally and irregularly as the same were not subject to public participation.

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35. According to the Petitioner, given that no public participation was conducted prior to the issuance of change of user to the 5th Respondent, then the actions of developing the suit property were illegal and hence the necessity of having conservative orders issued and a restraining order to stop the ongoing construction. 36. The 2nd and 5th Respondents who participated in the application stated that the application was not merited and ought to be dismissed by the court. According to the 2nd Respondent, all the requisite approvals had been sought and granted by the relevant authorities and that public participation had taken place. It was further averred by the 5th Respondent that the application seeking conservatory orders was devoid of merit as the same had been brought before court prematurely. That there was an elaborate mechanism as to how disputes of a similar nature were to be dealt with by the courts according to the PLUPA Act. 37. I will first address the issue of public interest in relation to what is before court. Public interest’ is defined by the Black’s Law Dictionary 10th Edition at page 1425 as: -

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The general welfare of a populace considered as warranting recognition and protection. Something in which the public as a whole has stake especially in something that justifies government regulation. 38. The nature of public interest litigation was discussed by the Supreme Court of India decision in the case of:“Ashok Kumar Pandey – Versus - State of West Bengal AIR 2004 SC 280” as follows: - “…. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fides and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for

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oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs. 39. I first wish to point out that in a bid to get a clear grasp of the Petition and the applications subject of this ruling, the court has perused the petition as filed. The Petitioner alleges that the issues giving raise to the petition are matters of public interest litigation as his rights have been violated by the developments on the suit property. The main essence of public interest is to protect the rights of the community or group of people and not for private gain. The Petitioner has not stated on whose behalf the Petition has been brought before court, further, I have not come across the zonal regulations that are alleged to be violated by the 5 th Respondent. However, the most glaring issue is that the alleged rights that have been violated have not been outlined as expected in constitutional petitions. A lot of uncertainty

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has fallen on the court as to whether or not these regulations do exist, the annexture as “KMK - 2” on the Petitioner’s supporting affidavit was what seemed like a table headed planning standards and permitted developments but with no proper indication or analysis of what the same stipulated. 40. As has been stated in the authority above, the court ought to be extremely careful while navigating through issues arising from alleged public litigation matters. This is for the simple reason that the same can be used to spearhead settlement of personal scores or advance personal interests. I am not convinced by the pleadings as presented by the Petitioner that the suit has demonstrated any components befitting of it falling under public interest. 41. I have also come across several approvals allowing the 5 th Respondent to commence the construction on the suit property by the relevant authorities and who are parties to this suit. the same include approvals by the National Construction Authority, NEMA EIA approval and the Kwale County Government dated 26th March, 2025. The approval by NEMA was issued on 19 th May, 2025 and the

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same is valid for 24 months from the date of issue. Condition 2.16 of the same stipulated as follows:“The proponent shall ensure that the development adheres to zoning specifications issued for development of such a project within the jurisdiction of the county government of Kwale, national construction authority and ministry of lands with emphasis on approved land use for the area” 42. It is trite that zonal regulations are enacted and regulated by county governments. Under the Physical and Land Use Planning Act (2019), County Governments are responsible for preparing local physical development plans, which include defining zoning regulations for residential, commercial, industrial, agricultural, and mixed-use areas. It is therefore bewildering in this instance that the county government of Kwale, which is responsible for setting up the zonal regulations for the area within which the suit property lies, issued licences and permits allowing the construction of a prohibited development in the said area. 43. Be it as it may, having not provided this court with a copy of the regulations, then the court cannot make the assumption that the same do exist as it has absolutely no

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place to draw inference from. All said and done, the logical conclusion is that ‘ a prima facie case” has not been established by the Petitioner. ISSUE No. b). Is there a legitimate claim before court? 44. Two main issues have been raised by the 2 nd and 5th Respondents in their respective cases. The first issue is that the Petition as filed is frivolous, vexatious and an abuse of the court process and thus ought to be struck out and secondly that the Petitioner in filing the application and petition before court has subverted the mandate of the County Physical and Land Use Planning Liason Committee who have the power to hear and determine disputes relating to development pursuant to the provisions of the Physical and Land Use Planning Act, 2019. Thus, it was stated that the jurisdiction of this court to hear and determine the Petition had been prematurely invoked and hence an affront to the principles of the doctrine of exhaustion. 45. On the first issue, Munyao J in the case of “ County Council of Nandi - Versus - Ezekiel Kibet Ruto & 6 others [2013] eKLR defined the terms frivolous and vexatious as follows:-

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“A frivolous pleading in my view is a pleading that completely lacks a legal foundation. It is a pleading that discloses no cause of action and serves no purpose at all. For example, if a litigant founds his cause of action on a law that has been repealed, then such pleading obviously lacks legal foundation and can be said to be frivolous”. “A vexatious pleading in my view is a pleading whose only purpose is to annoy or irritate the other party to the suit. It may be, though not necessarily, a frivolous pleading or a scandalous pleading. Its main quality is that it stands out as a pleading only aimed at harassing the other party”. 46. The instant Petition cannot be termed as lacking a legal foundation as the basis upon which has been brought before court is stipulated in various statutes and further in the Constitution. As to the aim of the suit in terms of whether the it is vexatious, despite the public interest litigation aspect having not been clearly demonstrated, I do not see any harassment in the nature of the pleadings filed instituting the Petition. The limb of the Petition being an abuse of the court process in its literal context thus fails.

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47. The Physical & Land Use Planning Act No. 13 of 2019 commenced on 5th August, 2019. It provides for the Physical and Land Use Planning Liason Committee and appeal process at the provision of Sections 73 to 89 and for enforcement notices of Section 72 thereof. The provision of Section 78 of PLUP mandates the County Physical and Land Use Planning Liason committee with the powers to hear and determine any complaints and claims made in respect to an application submitted to the planning authority, to hear appeals against the decisions made by the planning authority with respect to Physical and Land Use Development plans in the County; advise the County executive committee members on broad physical and land use planning policies, strategies and standards and lastly hear appeals with respect to enforcement notices. Under the provide of Section 80 thereof appeals from Physical & Land Use Planning Liason Committee to the National Physical & Land Use Planning Liason Committee. 48. From the foregoing, it is clear that the mandate of the Liason Committee is limited to physical and land planning, use, regulation and development of land. The

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provision Section 2 thereof states the other object of the Act is to establish a mechanism for dispute resolutions with respect to physical and land use planning. The dispute in the instant suit is with regards to the development of property with specifications that have allegedly been prohibited in that particular zonal area and which in my opinion falls under the mandate of the committee in the first instance. 49. In the case:- “Muthinja & Another – Versus - Henry & 1756 others [2015] KECA 304 (KLR)” the Court of Appeal provided the constitutional rationale and basis for the doctrine of exhaustion in the following words: “[37] It is plain to see then, that the Church did have a place a rather elaborate system for dispute resolution which the Plaintiffs in the various suits ought to have had recourse to, and exhausted, before litigating in court. We concur with the Learned Judge’s categorical finding at paragraph 75 of his judgment thus; That though the court has jurisdiction to deal with the plaintiffs’ complaints it is premature as they did not strictly follow the Church Constitution, providing for dispute resolution mechanism.

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[38]. We see this as the crux of the matter in this and similar cases. It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution. [39]. We find and hold that the exhaustion doctrine applies even where, as was argued by the Appellants herein, what is sought to be challenged is the very authority of the organs before whom the dispute was to be placed. We think there were sufficient safeguards in place for a valid determination of the various Plaintiffs’ disputes had they filed them within the church set up. And there was always the right, acknowledged by the learned Judge, of approaching the courts after

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exhaustion of the church mechanisms. By failing to do so, and quite apart from the force of their apprehensions, the appellants effectively failed to exhaust their remedies and essentially short- circuited the process by filing suits prematurely.’’ 50. I wish to also refer to the Supreme Court of Kenya dictum in the case of:- “Bernard Murage – Versus - Fine Serve Africa Limited & 3 others [2015] eKLR” where the apex court explained the importance of the doctrine of exhaustion of remedies in the following words: ‘Where there exists an alternative remedy through statutory law, then it is desirable that such statutory remedy should be pursued first.' 51. The doctrine was aptly captured by the Court of Appeal in case of:- “Republic – Versus - National Environment Management Authority Ex - Parte Sound Equipment Limited”, where the Court of Appeal observed: “... Where there was an alternative remedy and especially where Parliament had provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted and that in determining whether an exception should be made and judicial review granted,

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it is necessary for the court to look carefully at the suitability of the statutory appeal in the context of the particular case and ask itself what, in the context of the statutory determined powers, and was the real issue whether the statutory to be appeal procedure was suitable to determine it ...” 52. Further in the case of:- “Speaker of the National Assembly – Versus - James Njenga Karume [1992] eKLR”, the Court of Appeal held that: “… In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. We observed without expressing a concluded view that order 53 of the Civil Procedure Rules cannot oust clear constitutional and statutory provisions....” 53. In the case of: “Mutanga Tea & Coffee Company Limited – Versus - Shikara Limted & Another [2015] eKLR” the court held where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament that procedure should be strictly followed. Jurisdiction is a creature of a Constitution and

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or a statute. It cannot be assumed or inferred. The Physical & Land Use Committee has specified what grievance it can handle; I believe the issues raised herein ought to be handled by the committee before escalating to this court. Section 73(4) of the Physical and Land Use Planning Act provides that any party who is aggrieved by the determination of the County Physical and Land Use Liaison Committee may appeal to the Court (read Environment and Land Court) only on a matter of law and the Court shall hear the appeal in 30 days. ISSSUE No. c). Whether the application dated 22nd October 2025 for security for costs is merited 54. In making the application for security for costs, the 5 th Respondent stated that the conservatory orders if issued would cause them irreparable harm and damage given the colossal amounts that had been used in the developments as at the moment. The court was asked to issue orders for the petitioner to furnish security for costs in the sum of Kenya Shillings Five Million (Kshs. 5,000,000.00/-) within such period as the Court may deem just, to be deposited either in Court or in a joint interest-earning account in the names of the Advocates

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for the Petitioner and the 5th Respondent, pending the hearing and determination of this Petition. 55. The purpose of security for costs were articulate in an erudite discussion by L. Kimaru J in the case “Industrial Plant EA Limited - Versus - Stanbic Bank Kenya Limited & Others [2008] eKLR” as follows:“This court is aware of its duty not to lock out a litigant from the seat of justice on the basis of his poverty or impecuniosity. One way by which a litigant may be prevented from presenting his case to the court is by requiring him to furnish security for cost before the hearing of such suit. This court also has a duty to protect a Defendant who has been sued by a Plaintiff where it is apparent that in the event the suit is dismissed such a Plaintiff may not be in a position to settle the costs that he would be required to pay”. 56. Having established that this Court doesn’t have the jurisdiction to consider the applications and petition in the first instance in accordance with the provisions of the Physical and Land Use Planning Act, the application for security for costs will not be determined by this court, for that reason no orders will issue with regards to the prayers in the application dated 22nd October 2025.

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ISSUE No. c). Who bears the costs of both applications dated 3rd September 2025 and 22nd October 2025? 57. It is well known that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of legal action or proceedings in any litigation. The Provision of Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 provides that costs follow an event, the word “event” entails in the elucidation provided in the literally work by Justice Kuloba (as he then was), Judicial Hints on Civil Procedure 2 nd edition at page 99 that:“The words “the event” mean the result of all the proceedings to the litigation. The event is the result of entire litigation. It is clear however, that the word ‘event” is to be regarded as a collective noun and is to be read distinctively so that in fact it may mean the “events” of separate issues in an action. Thus the expression “the costs shall follow the event” means that the party who on the whole succeeds in the action gets the general costs of the action, but that, where the action involves separate issues, whether arising under different causes of action or under one cause of action, the costs of any particular issue go to the party who succeeds upon it. An issue in this sense need not

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go to the whole cause of action, but includes any issue which has a direct and definite event in defeating the claim to judgment in the whole or in part. 58. The case before Court being a Constitutional Petition, Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and fundamental Freedoms practice and Procedure Rules 2013) provides :“26. (1) The award of costs is at the discretion of the Court. (2) In exercising its discretion to award costs, the Court shall take appropriate measures to ensure that every person has access to the Court to determine their rights and fundamental freedoms.” 59. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR” and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR” , the court reaffirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR” , the court stated that costs follow the event as a well-established

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legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. 60. Further in “John Harun Mwau & 3 Others – Versus - Attorney General & 2 Others [2012] eKLR”, the Court held that in public interest litigation, “the general rule that costs follow the event does not apply with equal force.” Similarly, in “Kenya Bus Services Ltd & Another – Versus - Minister for Transport & 2 Others [2005] eKLR”, the Court observed that “in matters of public interest litigation, courts are inclined to adopt a liberal approach to costs.” 61. In the instant case, the events are that the applications by both parties are not successful. The 1 st Respondent’s submission on “the principles of the doctrine of exhaustion” has however been expansively considered by this honourable court. For that reason, it will be prudent for each party to bear its own costs. IX. Conclusion and Disposition 62. Consequently, upon conducting an elaborate analysis of the issues set out herein, the Honourable Court proceeds to grant the following orders: a) THAT the Notice of Motion application 3rd September, 2025 by the Petitioner herein violates

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the doctrine of exhaustion in view of the provisions of Sections 72 and 73 of the Physical and Land Use Planning Act. b) THAT the said Notice of Motion application dated 3 rd September 2025 be and is hereby struck out. c) THAT equally the Notice of Motion application 22 nd October 2025 dated by the 5 th Respondent application be and is hereby struck out. d) THAT consequently, based on the orders above, the Constitution Petition herein be and is hereby automatically dismissed. e) THAT each party to bear their own costs. IT IS ORDERED ACCORDINGLY. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS… …30TH …. DAY OF ………..APRIL………….2026 ……………………………… HON. MR. JUSTICE L.L NAIKUNI, ENVIRONMENT & LAND COURT AT

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KWALE. Ruling delivered in the presence of: a) Mr. Daniel Disii, the Court Assistant. b) M/s. Amina Advocate holding brief for Mr. Sadik Advocate for the Petitioner/Applicant. c) Mr. Muchiri Advocate for the 5th Respondent. d) No appearance for the 1st, 2nd, 3rd & 4th Respondents.

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