https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3233

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC PETITION NO. E007 OF 2025** **FINSCO CONSULTING AFRICA LIMITED** ……..........… **1ST PETITIONER** **VANTAGE VIEW LIMITED …………………..........……...…. 2ND PETITIONER** **VERSUS** **THE COUNTY EXECUTIVE COMMITTEE** **MEMBER, LANDS, HOUSING PHYSICAL PLANNING** **AND URBAN DEVELOPMENT**…………….……….……… **1ST RESPONDENT** **COUNTY DIRECTOR OF PHYSICAL PLANNING …... 2ND RESPONDENT** **THE GOVERNOR KIAMBU COUNTY …………………… 3RD RESPONDENT** **THE COUNTY GOVERNMENT OF KIAMBU …….……. 4TH RESPONDENT** **AND** **KENYA NUT COMPANY LIMITED ………………….. INTERESTED PARTY** **RULING** **Introduction** 1. Before this court is a Notice of Motion application dated 26th January 2026 in which the applicants seek the following Orders: 1. *Spent…* 2. *THAT this Honourable Court be and is hereby pleased to issue an Order compelling the 4th Respondent to receive, register and formally acknowledge the Petitioner’s applications for:* 3. *Change of user; and* 4. *Subdivision* *In respect of Land Reference Nos. 10089 and 10090/1, Juja Kiaora Farm, Kiambu County* 1. *THAT this Honourable Court be and is hereby pleased to compel the 4th Respondent to process, consider, and communicate a written decision on the said applications within thirty (30) days of receipt.* 2. *THAT pending compliance with Orders (2) and (3) above, the Respondents be restrained from issuing enforcement notices or undertaking enforcement action against the Petitioners.* 3. *THAT the costs of this Application be in the cause.* 2. The application is premised on the grounds on the face of it and the supporting affidavit of John Mwaura sworn on even date. 3. The applicant asserts that they entered into an agreement with the interested party for the development of Vantage View Estate on Land Reference Parcel No. 10090/1 and Land Reference Parcel No. 10089, comprising approximately 565 acres (hereinafter ‘the suit parcels’). 4. It is the Applicants’ contention that it duly complied with all statutory and procedural requirements governing applications for change of user and subdivision in respect of the suit properties. The Applicant maintains that, notwithstanding such compliance, the 4th Respondent has declined and/or failed to receive, register, and process the said applications, thereby subjecting the Applicant to unwarranted administrative paralysis and frustration, in violation of its right to fair administrative action as guaranteed by the Constitution of Kenya, 2010. 5. The Applicants contend that the 4th Respondent’s failure to act has left them vulnerable to enforcement action, harassment, and intimidation by the Respondents and thus seek the Courts intervention to protect their rights. 6. The application was opposed through the replying affidavit of Charles Mugambi sworn on 4th February 2026 on behalf of the Respondents, wherein the Respondents dispute the Applicants’ entitlement to the mandatory reliefs sought and maintained that its actions were lawful and within the bounds of its statutory mandate. 7. The Respondents maintain that the Applicants failed to comply with the mandatory requirements prescribed under the Physical and Land Use Planning Act (hereinafter ‘PLUPA’) for the processing and progression of applications for change of user and subdivision. They contend that, owing to such non-compliance, the impugned applications could not lawfully proceed. 8. The Respondents further state that enforcement notices were duly issued to the Applicants in respect of the alleged breaches, but that the Applicants have neither complied with nor challenged the same in the manner prescribed by law. 9. The Respondents effectively characterise the application as an abuse of the Court’s process, lacking in merit and amounting to an attempt to circumvent the statutory framework governing the dispute, and accordingly pray that it be dismissed with costs. 10. The application was canvassed by of written submissions which I have duly considered. **Issues for Determination** 11. Having examined the application, the replying affidavit in opposition, the rival submissions and the relevant authorities, the key issue that emerges for determination is: *Whether the applicants are entitled to the mandatory reliefs sought* **Analysis and Determination** 12. The application before Court seeks to compel the Respondents at an interlocutory stage to receive, register, and formally acknowledge the Applicants’ applications for change of user and subdivision. 13. Though cast in procedural language, the relief sought is not merely facilitative. It is coercive in character and mandatory in consequence, for it requires the Respondents to act in a defined manner within the statutory planning framework, and thus alters the legal position between the parties pending trial. 14. The principles governing the grant of a mandatory injunction stand on a firmer and more exacting footing than those applicable to prohibitory relief as enunciated in **Giella v Cassman Brown & Co. Ltd [1973] EA 358**, the locus classicus on interlocutory injunctions. 15. Whereas the latter is primarily concerned with preserving the status quo, a mandatory injunction commands positive action and, in effect, compels a party to do that which is in dispute. It is for this reason that courts have consistently held that the threshold is significantly higher. 16. This distinction has been repeatedly affirmed in our jurisprudence. In **Nation Media Group Ltd & 2 Others v John Harun Mwau [2014] eKLR**, the Court of Appeal emphasised that interlocutory mandatory injunctions are granted only in exceptional circumstances and in the clearest of cases, the applicant bearing a higher burden than in ordinary interlocutory relief. 17. Similarly, in **Kenya Breweries Ltd v Washington Okeyo [2002] 1 EA 109** the Court had occasion to reaffirm this distinction and adopted with approval the exposition in Halsbury’s Laws of England (4th Edition, Vol. 24, paragraph 948), where it is stated that: **“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but in the absence of special circumstances, it will not normally, be granted. However , if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is simple and summary one which can be easily remedied, or if the defendant attempts to steal a match on the plaintiff, a mandatory injunction will be granted on an interlocutory application.** **In the English case of Locabail International Finance Ltd vs Agro Export & Another (1986), ALI ER 901 which the Court of Appeal in Kenya has followed with approval in may decisions, the court held that:-** **‘A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction, the court has to feel a high sense of assurance that at the end of the trial it would appear that the injunction had been rightly granted, that being a different and higher standard than required for a prohibitory injunction.’”** 18. In essence, an interlocutory mandatory injunction is not a routine procedural remedy. It is an extraordinary judicial intervention, reserved for situations where the Court is satisfied, not merely that a *prima facie* case exists, but that the case is so clear that it warrants immediate determination without awaiting the full ventilation of evidence. It is a jurisdiction exercised with restraint, for it carries the inherent risk of granting, in advance of trial, relief which may substantially dispose of the dispute between the parties. 19. The Court must be guided by a high degree of assurance that, upon full hearing, the order would be vindicated. Anything less would be an impermissible pre-emption of the trial process and a distortion of the interlocutory function of the Court. 20. The Applicants submit that they have duly undertaken all the steps required in law to regularise the development process and to bring their applications for change of user and subdivision within the statutory framework under PLUPA. They further contend that, notwithstanding such compliance, the Respondents have declined and/or failed to communicate any decision in respect of the applications for change of user and subdivision, and have offered no sufficient explanation for the continued inaction. 21. In support of their position, the Applicants have invited the Court to be guided by the decision in **Ongera v County Executive Committee Member, Lands, Housing, Physical Planning and Urban Development & 5 Others [2023] KEELC 17187 (KLR)**. 22. On their part, the Respondents submit that the Applicants have failed to demonstrate the existence of any special or exceptional circumstances capable of justifying the grant of an interlocutory mandatory injunction. 23. The Respondents contend that the application is attended by an inherent contradiction: on the one hand, the Applicants assert that they duly submitted and paid for the requisite applications for development permission, yet, on the other, they seek orders compelling the Respondents to receive, register, and acknowledge those very applications. 24. According to the Respondents, no cogent material has been placed before the Court to substantiate the alleged submission or payment, and the Court is therefore being invited to compel the performance of acts whose factual foundation remains uncertain and contested. 25. The Respondents further contend that the Applicants are, in effect, seeking to employ the interlocutory jurisdiction of the Court to circumvent the statutory processes governing development control and planning approval under PLUPA. In their view, the application amounts to an abuse of the Court’s process, improperly invoking the Court’s coercive powers in aid of reliefs that are final in character and unsupported by clear evidence. They accordingly urge the Court to dismiss the application with costs. 26. Upon consideration of the supporting affidavit of John Mwaura deponed on behalf of the applicants, together with the correspondence annexed thereto evidencing follow-up with the Respondents on the impugned applications for change of user and subdivision, the Court is not persuaded that the Applicants have placed before it sufficient evidence to justify the grant of the mandatory orders sought. 27. The reliefs sought by the Applicants are not merely preservatory in nature. They compel positive action and, in effect, invite the Court to direct the Respondents’ engagement with the statutory planning process under the PLUPA, thereby venturing into issues that properly fall for determination at the substantive hearing. 28. The Court is equally not persuaded, on the material presently before it, that the Applicants have demonstrated the existence of the special or exceptional circumstances necessary to justify the grant of an interlocutory mandatory injunction. The jurisdiction to grant such relief must be exercised sparingly, cautiously, and only in the clearest of cases. This, with respect, is not such a case. 29. The Court must however consider whether, notwithstanding the foregoing, the circumstances disclosed warrant limited preservatory relief pending the hearing and determination of the Petition. 30. The Court cannot ignore that Section 58 of the PLUPA contemplates a responsive and accountable administrative process. The statute does not envisage that an applicant who has initiated the process for development permission may be met with silence, procedural opacity, or indefinite administrative inertia. Indeed, subsection (6) expressly recognises that where no written response is rendered within sixty (60) days, permission may, in appropriate circumstances, be deemed to have been granted. 31. While the material presently before Court may not suffice to warrant the grant of interlocutory mandatory orders compelling the Respondents to receive, register, and acknowledge the impugned applications, the correspondence exhibited by the Applicants discloses *prima facie* attempts at engagement with the Respondents in relation to the approval process contemplated under the PLUPA. In those circumstances, and bearing in mind that interlocutory relief is intended to preserve rather than conclusively determine rights pending trial, the Court is persuaded that limited preservatory protection is warranted pending the hearing and determination of the Petition. 32. In view of the foregoing, while Orders (2) and (3) of the application are declined, the Court hereby restrains the Respondents from undertaking enforcement action against the Applicants in relation to the impugned development pending the hearing and determination of the Petition, provided that the Applicants shall not undertake any further development on the suit property until they obtain the necessary development approval. **33. Accordingly, Orders (2) and (3) of the application dated 26th January 2026 are hereby declined. The application is otherwise allowed to the extent of the preservatory orders granted herein. Costs shall be in the cause.** **Dated, signed and delivered, virtually at Thika this 28th day of May 2026.** …………………….. **J. M. ONYANGO** **JUDGE** **In the presence of:** Ms Athman for Mr. Munyu for the Interested Party. No Appearance for the Petitioner/ Applicant No appearance for the Respondent. Court Assistant: Hinga