Lydia Njamiu Nduhiu v Katanu Ngomo & another T/A Miritini Sunshine Academy & 3 Others

Defendant for the illegal construction of the School on Plot No 446 Miritini; c. A permanent injunction do issue against the 1 st Defendants, their servants, agents, employees, representatives or any other persons acting on their stead from further undertaking construction activities of the school Miritini Sunshine Junior Secondary on Plot No 446 Miritini and admission of students thereto; d. An order for payment of damages by the Defendants to the Plaintiff’s for violating the Plaintiff’s right to a clean, safe and healthy environment; and e. 2. Costs of the suit. Those prayers arise from the Plaintiff’s contention that at all times material to this suit, the Plaintiff was the proprietor of Plot No. 445 Miritini whilst the 1st Defendants were the proprietors of the adjacent Plot No. 446 Miritin. It is the Plaintiff’s position that the two Plots are situated under the Miritini Site and Service Scheme - Which provided for basic social amenities like schools, dispensaries and religious sites. JUDGMENT Page 2 of 23 MSA. ELC. E010 OF 2024

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3. The Plaintiff avers that while the said Plot No.s 445 and 446 on the Miritini Site and Service Scheme were earmarked as residential areas, in November 2023, the 1 st Defendant illegally commenced construction of a school known as Miritini Sunshine Junior Secondary on Plot No 446 . It is the Plaintiff’s case that the construction of the school within a residential area is out of character with its surrounding and the same needed not only an Environmental Impact Assessment report (EIA) but also required public participation as the same altered the nature and character of the scheme. 4. The Plaintiff further avers that all persons likely to be affected by the project were never consulted by the 2 nd, 3rd and 4th Defendants. It is further her case that she was not informed of any Change of User of the suit property from residential to commercial to enable her lodge an objection. 5. The Plaintiff further accuses the 2 nd, 3rd and 4th Defendants of failing to properly discharge their obligation of ensuring that JUDGMENT Page 3 of 23 MSA. ELC. E010 OF 2024

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the 1st Defendant complies with the provisions of the law and asserts that the establishment of the school shall have deleterious consequences on her property. 6. Katanu Ngomo and Peter Kitali Munguti T/a Miritini Sunshine Academy (the 1st Defendant) is opposed to the suit. In its Statement of Defence dated 13th December 2024, the 1st Defendant admits that it is the proprietor of Plot No. 446 Miritini but denies knowledge of the fact that the Plaintiff is the proprietor of an adjacent Plot No. 445 Miritini. The 1 st Defendant denies that its Plot No. 446 is situated under the Miritini Site and Service Scheme and/or that the Scheme provides for basic social amenities like schools. It further denies that Plot No. 446 was earmarked as a residential area. 7. The 1st Defendant avers that prior to commencing construction on the suit property, and throughout the construction, they erected a signage which depicted the nature of the project as well as those who were involved in the project. JUDGMENT Page 4 of 23 MSA. ELC. E010 OF 2024

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8. The 1st Defendant further avers that it applied for, and obtained, an Environmental Impact Assessment Report from the 2nd Defendant prior to commencing construction on the property. It asserts that a public participation exercise was advertised organized and conducted by the relevant Defendants and/or their respective departments prior to the commencement of the project. 9. The 1st Defendant denies that the actions it has taken on the suit property have any deleterious consequences on the Plaintiff’s property rights and that the school shall be a nuisance to the neighboring properties. 10. The National Environment Management Authority (the 2 nd Defendant) is equally opposed to the suit. In it’s Statements of Defence dated 30th July 2025, the 2nd Defendant avers that it has no direct involvement in the 1 st Defendant’s alleged failure to comply with zoning laws or change-of–user requirements as the same fall under the jurisdiction of the 4 th Defendant. JUDGMENT Page 5 of 23 MSA. ELC. E010 OF 2024

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11. The 2nd Defendant denies knowledge of any environmental violations regarding the project and states that it has acted strictly within its statutory mandate under the Environmental Management and Coordination Act (EMCA). The 2nd Defendant denies any negligence or failure on its part to enforce environmental standards and avers that it has taken all reasonable and lawful measures to monitor and regulate environmental compliance in the project. 12. The 2nd Defendant denies that it has unlawfully or irregularly issued environmental licences and approvals to the 1 st Defendant’s construction project and avers that if any approvals were granted, the Environmental Impact Assessment (EIA) was followed and a valid licence was issued in accordance with Section 58 and 59 of EMCA. 13. The 2nd Defendant further denies the accusation that it has violated the Plaintiff’s right to a clean and healthy environment and states that it has acted within its statutory mandate and it did review and consider all environmental JUDGMENT Page 6 of 23 MSA. ELC. E010 OF 2024

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aspects of the Miritini Sunshine Academy project before issuing any licences. 14. The National Construction Authority (the 3 rd Defendant) is equally opposed to the claim. In its Statements of Defence dated 24th September 2024, the 3rd Defendant avers that upon receipt of a complaint concerning construction works on Plot No. 446 Miritini, a site inspection was conducted on 11th December 2023, where it was established that: a) No construction works were ongoing at the site; b) Lack of Certificate of Compliance from the National Construction Authority (NCA); c) Lack of NCA registered contractor with valid licence; d) Lack of NCA accredited skilled workers and site supervisors; e) No site board showing all approvals and the professionals engaged in the project; f) JUDGMENT Lack of personal protective equipment; and Page 7 of 23 MSA. ELC. E010 OF 2024

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g) Lack of hoarding, fencing, Netting and safety signs. 15. The 3rd Defendant avers that upon its findings at the site in line with its mandate, it suspended the construction works through Suspension of Works Order Serial No. 148289 dated 11th December 2023. The 3rd Defendant therefore avers it has fully discharged its mandate in line with the National Construction Authority Act No. 41 of 2011 and the National Construction Authority Regulations 2014. 16. The 3rd Respondent further asserts that it has not issued a project compliance certificate regarding the construction works in the suit property. 17. The County Government of Mombasa (the 4 th Defendant) is similarly opposed to the suit. In its Statement of Defence dated 2nd October 2024, the 4th Defendant denies that the construction project was commenced in contravention of the law and asserts that a Public Notice for Change of User of the suit premises was published in the both the Standard JUDGMENT Page 8 of 23 MSA. ELC. E010 OF 2024

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and the Star Newspapers as by law required and that the Plaintiff did not object to the Change of User. 18. The 4th Defendant further asserts that it has fully discharged its mandate in matters of Change of User under the Physical and Land Use Planning Act, 2019. 19. At the trial herein, the Plaintiff testified as the sole witness in her case. The 1st and 4th Defendants similarly called one witness each in support of their respective positions while the 2nd and 3rd Defendants did not call any witness. Analysis and determination 20. I have carefully perused and considered the pleadings filed herein, the testimonies of the witnesses as well as the evidence adduced at the trial. I have similarly perused and considered the submission and authorities placed before the Court by the Learned Advocates representing the Plaintiff and the 1st Defendant. I was unable to find any submissions filed on behalf for the other parties. JUDGMENT Page 9 of 23 MSA. ELC. E010 OF 2024

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21. By her suit as filed herein, the Plaintiff urges the Court to declare that the Defendants are in breach of her right to a clean and healthy environment. As a result, the Plaintiff urges the Court to cancel all approvals and licences issued by the 2nd, 3rd and 4th Defendants to the 1st Defendant to construct the school known as Miritini Sunshine Academy on Plot No. 446 Miritini. In addition, the Plaintiff prays for a permanent order of injunction to issue restraining the 1 st Defendant from further undertaking the construction of the school on the said parcel of land and admitting students therein. Ultimately, the Plaintiff prays for an order of damages to issue against the Defendants for violating her right to a clean and healthy environment. 22. It is the Plaintiff’s case that at all times material to this suit, she was the proprietor of Plot No. 445 Mirtini while the 1 st Defendant were the proprietors of the adjacent Plot No. 446 Miritini. It was the Plaintiff’s case that the two parcels of land were earmarked as residential areas and are situated under the Miritini Site and Service Scheme which provided JUDGMENT Page 10 of 23 MSA. ELC. E010 OF 2024

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for basic social amenities like schools, dispensaries and religious sites away from the residential areas. 23. The Plaintiff told the Court that despite that arrangement under the Scheme, the 1st Defendant had in November 2023 illegally commenced the construction of the said Miritini Sunshine Academy on Plot No. 446 Miritini. The Plaintiff asserts that the construction of the school within a residential area is out of character with its surrounding and that the same required not only an Environmental Impact Assessment (EIA) report but also required public participation as the same would alter the nature and character of the scheme. 24. In particular, the Plaintiff told the Court that all persons likely to be affected by the project were never consulted by the 2nd, 3rd and 4th Defendants prior to the issuance of the approvals and licences that had authorized the 1 st Defendant to undertake the project. She told the Court that she had not been informed of any Change of User of the suit property JUDGMENT Page 11 of 23 MSA. ELC. E010 OF 2024

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from residential to commercial use and accused the 2 nd, 3rd and 4th Defendants of failing to properly discharge their obligations of ensuring that the 1 st Defendant complied with the law. 25. On their part, the 1st Defendant did not deny that it was carrying out the construction of the said school. It was the 1 st Defendant’s case that they were the proprietors of the said Plot No. 446 Miritini and that prior to the commencement of the construction, they had applied for and obtained an Environmental Impact Assessments (EIA) report from the 2 nd Defendant. The 1st Defendant further asserted that a public participation conducted exercise by the was advertised, relevant Defendants organized and prior the to commencement of the project and that they had erected a signage which depicted the nature of the project as well as those who were involved therein. 26. The 1st Defendant denied that the construction of the school on the suit property had any deleterious consequences on the Plaintiff’s JUDGMENT property and that the same had in any way Page 12 of 23 MSA. ELC. E010 OF 2024

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violated the Plaintiff’s right to a clean and healthy environment. 27. While the 2nd and 3rd Defendants did not call any evidence at the trial, the 2nd, 3rd and 4th Defendants had all pleaded that they had lawfully discharged their statutory mandates in issuing the approvals and licences to the 1 st Defendant to construct the school. 28. According to the 4th Defendant, a public notice for Change of User of the suit premises was published in both the Standard and the Star newspapers as by law required and the Plaintiff did not register any objection thereto. The 4 th Defendant further asserted that it had fully discharged its mandate in matters of Change of User as required under the Physical and Land Use Planning Act, 2019. 29. From the material placed before the Court, it was not in dispute that the Plaintiff’s Plot No. 445 Miritini abutted the 1st Defendant’s Plot No. 446 Miritini. In support of her case, the Plaintiff produced the Miritini Site and Service Scheme JUDGMENT Page 13 of 23 MSA. ELC. E010 OF 2024

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Plan (Pexh 4) which indicated that the two plots were initially earmarked as residential areas. That fact was confirmed by Ms. Katanu Ngomo ( DW1) who told the Court that when she came up with the idea of the school, she approached the 4th Defendant which then advised her to apply for a Change of User. 30. It was the Plaintiff’s case that sometime in November 2023, the 1st Defendant commenced construction on the said Plot No. 446 and that there was no signage to indicate what was being constructed thereon until the 19 th day of May 2024. The Plaintiff told the Court that she was not informed of any Change of User to enable her lodge her objection and that all persons likely to be affected by the project were never consulted prior to the commencement of the project. 31. At the trial herein, the 1st Defendant denied that they had commenced construction on the property in November 2023 as stated by the Plaintiff. Without stating the date they commenced construction, the 1 st Defendant insisted that they had only commenced construction after receipt of the JUDGMENT Page 14 of 23 MSA. ELC. E010 OF 2024

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necessary approvals and licences from the relevant Government agencies. 32. The position taken by the 1st Defendant was however not backed by much evidence. While the 3 rd Defendant did not testify at the trial, it was apparent from paragraphs 5 and 6 of their pleadings that at some point in December 2023, they had received a complaint about some on-going construction on the suit property and that on 11th December 2023 they had issued to the 1st Defendant a Suspension of Works Order having noted certain irregularities at the site. 33. It was also evident to me that while Regulations 15 (g) of the Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021 required notice to be published in a newspaper for at least 14 consecutive days prior to the date the application for Change of User is submitted, that was not the case herein. From the material placed before the Court by both the 1 st and the 4th Defendants, it was evident that the advertisement carried in both the Standard and Star Newspapers was run on 12 th JUDGMENT Page 15 of 23 MSA. ELC. E010 OF 2024

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January 2024, barely 3 days before the 1 st Defendant applied for Change of User on 15th January 2024. 34. Indeed, the documents placed before the Court reveal an irreconcilable inconsistency in the chorology of approvals for the Change of User. By a letter dated 29 th January 2024 (1st Dexh 6) the Mombasa County Director of Physical and Land Use Planning one Manyala P.O. had written to the Director Land Administration as follows; “RE:Application for change of user on unsurveyed land in Miritini site and service scheme The owner of Plot No. 446 in Miritini Site and Service Scheme wishes to change the user from Residential to Educational purpose. Please note that the approval can be granted given the development trend of the area and that the educational user is not in conflict with the neighborhood. The proposal also seeks to complement the neighborhood requirements for educational facility. JUDGMENT Page 16 of 23 MSA. ELC. E010 OF 2024

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However, upon survey and registration of title, the developer will regularize the application and register the conditions of use in the lease documents as Educational Purpose.” 35. It was telling that the Director Land Administration one Rose Murupe had long before receipt of the letter from the County Director given her own approval to the Change of User by a letter dated 16th January 2024 (4th Dexh 3) addressed to the 1st Defendant. The same County Director then allegedly gave his approval on the Change of User by another letter dated 26th January 2024 (1st Dexh 6). 36. 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. 37. Be that as it may, by a letter dated 16 th February 2024, the Chief Officer (Lands, Physical Planning, Housing and Urban JUDGMENT Page 17 of 23 MSA. ELC. E010 OF 2024

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Renewal) one Ali Abdulrahman Shariff formally notified the 1st Defendant of the approval given for the development permission. That approval was given subject to a number of conditions. Significantly, condition No (V) provided as follows: “V. No construction should commence on site, unless EIA project report is prepared, submitted and approved by NEMA as per EMCA (Amended) Cap 387 and register the project with the National Construction Authority (NCA).” 38. As it were the Plaintiff instituted this suit on 10 th June 2024 exhibiting photographs of the construction that was on-going on the suit property. NEMA did not give its approval on the construction until 11th November 2024 (1st Dexh 9). The NCA issued its certificate of compliance on 28 th November 2024(1st Dexh 10). Arising from the foregoing, it was clearly evident that the 1st Defendant had commenced construction on the suit premises prior to the receipt of the approval and contrary to the conditions set out by the 4 th Defendant. JUDGMENT Page 18 of 23 MSA. ELC. E010 OF 2024

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39. It was further apparent to me that the Plaintiff had not been afforded a proper opportunity to air her views on the proposed construction. In that respect Section 58 (7) and (8) of the Physical and Land Use Planning Act provide as follows; “58. (7) A person applying for the development permission shall also notify the public of the development project being proposed to be undertaken in a certain area. (8) The notification referred to under subsection 7 shall invite members of the public to submit any objection on the proposed development project to the relevant County Executive Committee Member for consideration.” 40. Considering a similar situation in the case of Moffat Kamau & 9 Others –Vs- Actors of Kenya Ltd (2016) eKLR, the Court held thus; “Where the procedures for the protection of the environment are not followed, then an assumption may be drawn that the right to a clean and healthy environment is under threat. JUDGMENT Page 19 of 23 MSA. ELC. E010 OF 2024

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Although the 1st and 2nd Respondents accused the Petitioners of witch hunt, probably the dialogue enabled through public participation would have helped them (Petitioners) gain understanding of the magnitude of the project and dissuade them from filing this suit. The Respondents cannot shift the blame ensuing from their omission to follow the laid down process of obtaining licences. Consequently, 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.” 41. In the matter herein, it was clear to me that the Change of User from residential to commercial was not undertaken in accordance with the mandatory provisions of the Physical and Land Use neighborhood Planning land Act. owners The Plaintiff were not and other afforded an opportunity to present their views and lodge complaints. JUDGMENT Page 20 of 23 MSA. ELC. E010 OF 2024

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42. The 1st Defendant did not tender any evidence to demonstrate that a notification had been issued to the Plaintiff and the public at large. Neither did the 4 th Defendant demonstrate that while making the decision to grant the development approval, they had taken into consideration the comments made by members of the public on the application on development permission. 43. On the other hand, the Plaintiff has demonstrated that the 1 st Defendant commenced construction without complying with the statutory Environmental procedures Impact governing Assessment Change and of User, Construction Approvals. 44. The evidence tendered revealed that the EIA Licence and NCA Certificate were obtained long after the construction had commenced and indeed after this suit was instituted. The Plaintiff was not afforded an opportunity to participate in the approval process despite being an immediate neighbour to the project. JUDGMENT Page 21 of 23 MSA. ELC. E010 OF 2024

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45. In the premises, I was persuaded that the Plaintiff had demonstrated that her Constitutional right to a clean and healthy environment had been violated by the Defendants. The project involves the establishment of a school within a residential area and is likely to generate increased noise, traffic and general disturbances contrary to the Plaintiff’s expectation of the quite enjoyment of her property. 46. Accordingly, I hereby allow the Plaintiff’s suit and hereby issue orders as follows; a. A declaration is hereby made Defendants are in breach of the that the Plaintiff’s right to a clean and healthy environment; b. An order is hereby issued cancelling all the licences and approvals issued by the 2 nd, 3rd and 4th Defendants to the 1st Defendant for the illegal construction of the school on Plot No. 446 Miritini; c. 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. JUDGMENT Page 22 of 23 MSA. ELC. E010 OF 2024

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446 Miritini and admission of students thereto; and d. The 1st Defendant shall bear the costs of this suit. Judgment dated, signed and delivered in open court and virtually at Mombasa this 24th day of September, 2026. ………………………….. J.O. OLOLA JUDGE In the presence of: a) Ms. Firdaus Court Assistant. b) Ms. Mango Advocate for the Plaintiff c)Ms. Odongo holding brief for Mr. Akude Advocate for the 1 st Defendant d) No appearance for the 2nd Defendant e) Ms. Ogola Advocate for the 3rd Defendant f) Mr. Tajbhai Advocate for the 4th Defendant JUDGMENT Page 23 of 23 MSA. ELC. E010 OF 2024

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