Gichohi v Gikandi (As administrator of the estate of Johnstone Gikandi) & another

FORM PLUPA LC-4(b) (r. 50) **REPUBLIC OF KENYA** **NAIROBI COUNTY** **THE COUNTY PHYSICAL AND LAND USE PLANNING LIAISON COMMITTEE** **COMPLAINT/CLAIM/APPEAL NO. E001 OF 2026** **DAVID MAINA GICHOHI ………………………………………………………………………… APPELLANT** **-VERSUS-** **JULIUS GITOME GIKANDI** **(As administrator of the estate of JOHNSTONE GIKANDI) ………… 1ST RESPONDENT** **COUNTY EXECUTIVE COMMITTEE MEMBER,** **BUILT ENVIRONMENT AND URBAN PLANNING ……………………………..2ND RESPONDENT** **NOTIFICATION OF DETERMINATION** The County Physical and Land Use Planning Liaison Committee, pursuant to section 80(2) of the Physical and Land Use Planning Act, 2019, heard Complaint/Claim/Appeal Ref. No. NCCG/PLUPLC/E001 of 2026, filed on 21st July 2026 by **DAVID MAINA GICHOHI**, and vide Minute No. 4/4/08/26 dated 4th August 2026 made a determination as follows: **A. THE PROCEEDINGS** 1. The statement of appeal was filed on 21st July 2026. It was accompanied by a bundle of documents in support. 2. The 2nd Respondent filed a replying affidavit sworn by Wilfred Masinde. 3. The 1st Respondent neither entered appearance nor filed any response. 4. On 29th July 2026, when the matter came up for mention, Ms. Caroline Wanjiku Kariuki informed the Committee that she was acting for the 1st Respondent, sought time to respond, and took the directions of the Committee, including the hearing date of 4th August 2026. 5. On 4th August 2026 neither the 1st Respondent nor any representative on his behalf appeared. The Committee is satisfied that the 1st Respondent had notice of the hearing date, that date having been taken on his behalf by Ms. Caroline Wanjiku Kariuki who had announced herself as acting for him, and that no application for an adjournment or explanation for the absence was made. The Committee accordingly proceeded to hear the appeal in his absence. 6. The Committee that heard and determined this appeal was constituted as follows: Rogers Monda, the Chairman, Architect Oino Juma, Planner John K. Barreh, Advocate Kihara Njuguna, Architech Stephen Mwilu and Surveyor Isaiah Bonyo. All members named above were present throughout the hearing on 4th August 2026 and throughout the deliberations, and each pronounced upon the appeal on its merits. **B. THE APPELLANT’S CASE** 1. The appellant, David Maina Gichohi, testified on his own behalf and adopted his statement of appeal and bundle of documents. He is retired and resides at Nyambene Drive, Juja Road Estate, on Plot No. Nairobi Block 104/232. He objected to the change of user granted in respect of Plot No. Nairobi Block 104/233. 2. His principal contention was that his house and the neighbouring house on Plot No. 104/233 share a common foundation, a common wall, the first floor slabs and the roof, so that any alteration on Plot No. 104/233 would damage the structure on Plot No. 104/232. 3. He testified that he saw a newspaper advertisement concerning the proposal before any approval was granted, and that he filed an objection by letter addressed to the County Government. He received no response from the County. There was no public participation on the project and he was never invited to any meeting concerning it. He prayed that the approvals be cancelled. 4. On cross-examination he was emphatic that Plot No. 104/233 shares a common wall with Plot No. 104/232, and that Plots Nos. 231, 232 and 233 share the same wall. His property is sandwiched between two others, one of which is unoccupied. He confirmed that construction had not commenced on the premises. 5. He obtained information about the project through the Office of the Ombudsman, and the letter from the County transmitted through that office disclosed when the application was received and when approval was given. 6. He stated that the developer intended to put up a commercial facility and that he was not aware of any other commercial units within the estate. He was apprehensive because he had seen similar developments elsewhere result in damage. 7. He confirmed his understanding that public participation requires that parties who would be affected be involved, and stated that he was never approached by anyone nor called to any meeting. He confirmed that he was aware of the public notice and that this was why he objected, and that in the absence of any participation process he was not made aware of any other documents. 8. On re-examination he confirmed that he had filed a suit in the Environment and Land Court (ELC 049/2023) concerning proposed development on Plot No. 104/231, which was concluded in his favour by a permanent injunction restraining development of Plot No. 104/230 and Plot No. 104/231. 9. That decree does not extend to Plot No. 104/233 and the Committee has not treated it as determinative of any issue in this appeal. 10. The appellant closed his case with the adoption, by consent, of the report of his engineer, Engineer Elijah Ochieng Musa. 11. The engineer’s report found that the two units are not structurally independent, and identified the following shared elements by which damage to one unit would propagate to the other: 1. the units share a common wall founded on a single strip foundation whose centre line coincides with the wall and whose footprint straddles both plots in equal portions; 2. that common wall is a key element in load transfer, supporting the ground floor slab, the first floor slab and the roof, with no redundancy and no alternative load path; 3. the floor slab is continuous across all three units, so that removing one unit converts internal slab panels into edge panels and changes their design boundary conditions; and 4. shared beams provide both vertical load transfer and lateral tie between the buildings. 12. The report found the building itself to be in good condition, with intact concrete, reinforcement and masonry, no significant structural defects, and the capacity to perform as designed for its residual lifespan. 13. The principal risks identified in the engineer’s report were: 1. Foundation eccentricity — removing one side of the shared strip footing introduces eccentric loading and reduces the contact area, potentially creating a collapse mechanism; 2. Deep excavation — excavating below the existing strip footing or column bases removes lateral confinement, producing strains and deformations beyond what the structure can safely withstand; 3. Loss of continuity — truncating beams and slabs interrupts their structural continuity and redistributes load paths in ways that may leave elements below code safety thresholds; 4. Reinforcement exposure — cutting concrete elements breaches the cover, exposing reinforcement steel to weather and accelerating corrosion; 5. Demolition impact loading — mechanical demolition induces micro- and macro-cracking, creating weak points and ingress paths for moisture and other environmental agents; 6. Slope instability — the proximity of the excavation face to the foundation may induce instability and foundation failure; and 7. Site hazards and services — falling objects, dust, noise, curing water causing dampness, and disruption to the shared sewer, storm water and water supply lines. 14. The engineer recommended that, before any demolition, excavation or construction commences, the developer must: 1. install a scientifically verifiable foundation protection system, justified by engineering calculations or modelling, and demonstrate through a competently designed scheme how the affected foundations will be retrofitted; 2. address the alteration of structural boundary conditions for all affected elements before any detachment from the adjacent structure is undertaken; 3. perform a slope stability analysis and install the reviewed mitigating system prior to excavation; 4. address the risk of exposed embedded reinforcement so as to preserve durability; 5. present a comprehensive falling-object strategy, including properly designed vertical and horizontal hoarding, dust netting and noise control; 6. maintain the shared sewer, storm water and water supply lines in good working condition throughout and after the works; and 7. provide a written undertaking indemnifying and holding harmless the owner of Nairobi/Block 104/232 against any risks or occurrences arising from the works. 15. The engineer’s overall recommendation was that each of the matters raised in the report must be satisfactorily addressed before the proposed alterations and construction works commence. **C. THE 2ND RESPONDENT’S CASE** 1. The 2nd Respondent called Wilfred Masinde, Deputy Director, Development Inspection and Planning Litigation, as its sole witness. 2. He testified that he was aware of the statement of appeal, and that the 1st respondent had conducted public participation by on-site advertisement and by newspaper, inviting the public to give their views on the application for change of use from a single dwelling to multiple dwelling units. The newspaper advertisement was run on 13thAugust 2025 in The Standard newspaper and identified Plot 233. 3. He stated that the County relied on a report prepared by Betty Onginjo, a planner acting for the 1st Respondent, who recommended that the County consider and approve the development. The approval itself was not annexed to the 2nd Respondent’s response. The approval conferred change of user only and did not give the 1st Respondent permission to construct. 4. He testified that the area permits mixed development — residential, commercial and educational — and that the approval was guided by the policy applicable to the area. He had not visited the site at any time since the approval was granted. 5. He recommended to the Committee that the change of user was in order and that the County was satisfied there had been sufficient public participation. 6. He explained the division of professional responsibility: a planner submits an application for change of use, an architect submits building plans, and a structural engineer deals with structural plans; the County was guided by the planner’s recommendation and report in issuing the change of user. 7. On cross-examination he stated that he was aware of the appellant’s letter of objection, which was dated 20th August 2025 and received by the County on 21st August 2025. He confirmed that the newspaper advertisement of 13th August 2025 gave the public fourteen days within which to object, and that the letter of objection was received within that period. 8. His attention was drawn to an inconsistency between paragraphs 6 and 7 of his affidavit, in which he deposed that the County had never received any objection, and the fact that the County had responded to that very objection by letter dated 2nd October 2025. He did not maintain the deposition. 9. He stated that in his view due diligence does not involve visiting the site; that he had not visited the site; that he was unable to say whether the planner, Ms. Onginjo, had visited the site; and that he could not confirm whether any structure presently stands on the subject plot. He further confirmed that the planner’s report was undated. 10. On the 2nd respondent’s own evidence, the sequence of events was as follows: 1. the newspaper advertisement appeared on 13th August 2025; 2. the application for change of use was submitted to the County on 14th August 2025; 3. the appellant’s letter of objection was dated 20th August 2025 and received on 21st August 2025; and 4. the application was approved by the UPTC on 22nd August 2025. 11. The Committee finds as a fact that the application was submitted on 14th August 2025 and approved on 22nd August 2025. **D. ISSUES FOR DETERMINATION** 1. Having considered the pleadings and the evidence on record, the following issues arise: 1. whether the approval for change of user issued by the 2nd respondent was lawful, and whether there was compliance with the requirements as to public participation; and 2. whether the appellant is entitled to the reliefs sought. **E. THE LEGAL FRAMEWORK ON PUBLIC PARTICIPATION** 1. Public participation is not, in a dispute under the Physical and Land Use Planning Act, 2019 (PLUPA) and its Regulations, a free-standing constitutional complaint. It arises at the intersection of three layers of obligation, and the authorities are most useful when anchored to the correct layer. 2. The constitutional layer is Article 10(2)(a) of the Constitution, which entrenches participation of the people as a national value and principle of governance binding on all State organs, State officers, public officers and all persons whenever they apply or interpret the Constitution, enact, apply or interpret any law, or make or implement public policy decisions. Article 69(1)(d) adds the obligation to encourage public participation in the management, protection and conservation of the environment, and Article 232(1)(d) makes involvement of the people a value of the public service. 3. The devolution layer is section 115 of the County Governments Act, which makes public participation in county planning processes mandatory and requires that the public be given clear and unambiguous information on the matter under consideration. Sections 87 to 92 of the same Act set out the principles and mechanisms of citizen participation. 4. The planning layer is PLUPA itself. Where the dispute concerns an application for development permission or change of user, the operative provisions are sections 57 and 58, in particular section 58(7) and (8), read with regulations 15 and 16 of the Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021 (Legal Notice 253 of 2021). Section 61(1) governs the matters the County Executive Committee Member must take into account; section 61(3) provides the appeal to this Committee; and section 61(4) provides the further appeal to the Environment and Land Court. 5. The practical significance of this layering is that a complaint of inadequate participation may succeed on the statutory ground alone, without any need to reach the constitutional ground, where the prescribed notice was not given in the prescribed form or at the prescribed time. Conversely, formal compliance with the prescribed notice does not conclude the constitutional inquiry, because the constitutional test is one of effectiveness rather than form. 6. In **Mui Coal Basin Local Community & 15 others v Permanent Secretary, Ministry of Energy & 17 others [2015] eKLR (Constitutional Petitions Nos. 305 of 2012, 34 of 2013 and 12 of 2014, consolidated)**, a three-judge bench of the High Court set out, at paragraph 97, six elements which at a minimum constitute public participation in environmental governance: 1. it is for the public agency to fashion a programme of participation that accords with the nature of the subject matter; the agency enjoys a considerable measure of discretion in crafting the modalities, but must take into account both the quantity and the quality of participation; 2. participation calls for innovation and malleability depending on subject matter, culture and logistical constraints; no single regime is prescribed and the only test is one of effectiveness; 3. the programme must include access to, and dissemination of, relevant information, and must afford the public a forum in which they can adequately ventilate their views; 4. participation does not require that everyone give their views, but the programme must show intentional inclusivity and diversity; any clear and intentional attempt to keep out bona fide stakeholders renders it ineffective and illegal, and the agency must apply the subsidiarity principle, so that those most affected have a bigger say and their views are more deliberately sought; 5. the right is a right to represent one’s views, not a right to have them treated as controlling; but the agency has a duty to take into consideration, in good faith, all views received, and may not merely go through the motions or engage in democratic theatre so as to tick the constitutional box; and 6. the right is not meant to usurp the technical or democratic role of office holders, but to cross-fertilise and enrich their views with the views of those most affected. 7. This Committee adopts that framework. It converts an otherwise impressionistic question into a structured one, each element of which can be tested against the record. The subsidiarity principle in the fourth element is of particular importance in change-of-user disputes, where immediate neighbours are the persons most affected and are therefore entitled to be more deliberately engaged than the general public. 8. The Mui Coal court also adopted the formulation of Sachs J in **Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC)**, that the forms of facilitating participation are capable of infinite variation, and that what matters is that a reasonable opportunity is offered to members of the public and all interested parties to know about the issues and to have an adequate say. 9. The Committee has also had regard to the authorities that mark the limits of the doctrine. **In British American Tobacco Ltd v Cabinet Secretary for the Ministry of Health & 5 others [2017] eKLR (Civil Appeal No. 112 of 2016),** the Court of Appeal held that while public participation is mandatory and a reasonable opportunity must be provided, participation does not mean that the views given must prevail; it is sufficient that they are taken into consideration together with other relevant factors, and the fact that a party’s views did not carry the day is neither here nor there. 10. That decision was affirmed by the Supreme Court in **British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party), Petition No. 5 of 2017; [2019] eKLR**, which confirmed that the degree of participation reasonable in a given case depends on several factors, including the importance of the issues and the intensity of their impact on the public, and that the right does not guarantee that any individual’s views will be controlling. 11. The Committee accordingly distinguishes between a complaint that no reasonable opportunity to be heard was given, which goes to adequacy, and a complaint that an objection was rejected on its merits, which does not. Read with the fifth Mui Coal element, the line falls here: the decision-maker must demonstrably engage with objections in good faith, but need not accede to them, and a reasoned rejection of an objection is evidence of participation rather than of its absence. The Supreme Court’s formulation also introduces proportionality, and the Committee has calibrated what was reasonably demanded by reference to the scale and intensity of the impact of this particular proposal. 12. In **Republic v The Attorney General & another ex parte Hon. Francis Chachu Ganya, Judicial Review Miscellaneous Application No. 374 of 2012**, the High Court held that participation of the people requires that information be availed to members of the public whenever public policy decisions are intended, and that the public be afforded a forum in which they can adequately ventilate their views. 13. The principle is two-limbed. Information without a forum is publication, not participation; a forum without information is a meeting at which the public cannot meaningfully speak. In development control this maps onto the statutory scheme: the on-site and newspaper notices are the information limb, and the invitation to lodge objections within a stated period at a stated address is the forum limb. 14. Finally, and most directly in point, is **Mwangi & 2 others (suing on behalf of Kisiwa West Estate Residents Welfare Group) v Kiambu County Executive Committee Member for Land, Physical Planning, Housing and Urbanization & 2 others; Kago (Interested Party)**, an appeal to the Environment and Land Court under section 61(4) from a determination of a County Physical and Land Use Planning Liaison Committee. 15. A residents’ welfare group had challenged the grant of approval for change of user from residential single dwelling to educational use, and the consequent construction permit, on the ground that the application had not been subjected to effective public participation. The Liaison Committee had found adequate participation and dismissed the appeal. The Environment and Land Court set that determination aside in its entirety and revoked both the approval and the permit. Four principles from that decision are material here: 1. **Standard of review**. Although a dispute before a Liaison Committee is described by PLUPA as an appeal, the Committee receives primary evidence and exercises primary adjudicatory jurisdiction, and therefore sits as a trial or primary adjudicatory body. Its findings on public participation are findings of primary fact and law which will be re-examined afresh, and must therefore be reasoned from the evidence on the record. 2. **Content of the statutory notice**. The court identified four defects in the on-site notice relied upon: it was undated, yet required objections within fourteen days; it did not disclose the particulars of the proponent; it did not disclose the identity of its author; and it did not disclose where objections were to be lodged. The court held that each of these is a key element of public participation, that the prescribed contents are substantive rather than cosmetic, and that without them the purported notice could not satisfy the law. The grant accordingly violated section 58(7) of PLUPA read with regulation 16 of the 2021 Regulations. 3. **Fresh compliance**. Where an application has been refused, the developer may either appeal to the Liaison Committee or address the reasons for refusal and start afresh with a new application, in which event all the procedural and public participation requirements of Part IV of PLUPA must be met afresh. 4. **Conduct of the Committee**. A Liaison Committee exercises quasi-judicial jurisdiction and is expected to give reasoned decisions; what matters is the finding and the reason for the finding reached by each member on the merits, and an unequivocal individual verdict on the merits satisfies the requirement for a vote under section 79(3). The court further warned that the participation in final deliberations of a member who was not present at the hearing may, where probable prejudice is shown, result in annulment of the decision. The court also observed pointedly that a Liaison Committee is expected to interrogate the regularity of the process before it on its own motion, and not merely to adjudicate between the arguments as the parties happen to have framed them. 16. Drawing the authorities together, this Committee has asked itself the following questions and recorded a reasoned answer to each on the evidence: which statutory participation obligation attached to the decision under challenge; whether the prescribed notices were given at all, at the prescribed time and containing every element the Regulations require; whether the mode and reach of notice was adapted to the persons actually affected; whether relevant information was disseminated rather than merely published; whether a genuine forum was provided and kept open for the prescribed period; whether the views received were considered in good faith and whether there is a record of that consideration; and whether the degree of participation was proportionate to the importance of the issue and the intensity of its impact. **F. FIRST ISSUE: WHETHER THE APPROVAL WAS LAWFUL AND WHETHER THERE WAS COMPLIANCE WITH PUBLIC PARTICIPATION REQUIREMENTS** **(i) The newspaper notice was not published for the prescribed period before the application was submitted** 1. Regulation 15(2)(g) of the 2021 Regulations provides that an application for a change of user shall be accompanied by a copy of the notice published in at least one newspaper of nationwide circulation, measuring five thousand square millimetres, in Forms **PLUPA/DC/2** and **PLUPA/DC/3** set out in the First Schedule, that has been published for at least fourteen consecutive days prior to the date the application is submitted. 2. On the 2nd Respondent’s own evidence, the advertisement appeared in the Standard on 13th August 2025 and the application was submitted to the County on 14th August 2025. **The notice had therefore been published for one day, not fourteen consecutive days, when the application was lodged**. **The earliest date on which the application could lawfully have been submitted was 27th August 2025**. 3. The Committee finds that the application was submitted in breach of a mandatory precondition prescribed by regulation 15(2)(g). It was not, at the date of its submission, a competent application, and there was accordingly nothing properly before the County capable of being approved. **(ii) The application was determined before the objection period had expired** 1. Form PLUPA/DC/3, prescribed for the newspaper notice, invites comments and objections to be forwarded in writing within fourteen days of the notice. Mr. Masinde confirmed that the advertisement of 13th August 2025 did in terms give the public fourteen days within which to object. 2. The County approved the application on 22nd August 2025, nine days after the notice first appeared and five days before the fourteen-day period it had itself stipulated had run. The County thereby determined the application within the objection period rather than after it. 3. Someone who invites objections within a stated period and then decides the matter before that period has expired defeats the very forum it purported to create. The Committee finds that this was not adequate public participation within the meaning of section 58(7) and (8) of the Act. **(iii) The appellant’s objection was received before the decision but was not considered** 1. The appellant’s objection was dated 20th August 2025 and received by the County on 21st August 2025, one day before the approval was granted. Mr. Masinde accepted both dates, and accepted that the objection was received within the fourteen-day period stated in the notice. 2. The County did not respond to the objection until 2nd October 2025, some six weeks after the decision that the objection sought to influence had already been taken. A response given after the event cannot constitute consideration of the objection. There is no evidence on the record that the objection was placed before the UPTC, weighed, or answered in any manner before the approval issued. 3. The Committee further notes that paragraphs 6 and 7 of Mr. Masinde’s affidavit deposed that the County had never received any objection, a deposition he was constrained to abandon under cross-examination once the County’s own letter of 2nd October 2025 was put to him. The Committee treats that deposition as unreliable and approaches the remainder of his evidence on the adequacy of the County’s process with corresponding caution. 4. An objection must, as a matter of course, be considered in good faith; it need not be allowed. The distinction drawn in British American Tobacco is between an objector whose views were weighed and rejected, and an objector whose views were never weighed at all. This appellant falls into the second category. The Committee finds that the County did not take his views into consideration in good faith, and that the requirement in the fifth Mui Coal element was not satisfied. **(iv) Compliance with the on-site notice requirement was not established** 1. Section 58(7) and (8) of the Act is given further content by regulation 15(2)(h) of the 2021 Regulations, which requires that an application for a change of user be accompanied by a caption of an on-site notice inviting comments from members of the public, and by regulation 16, which requires that the on-site notice be in Form PLUPA/DC/4 set out in the First Schedule and that it be made of durable waterproof material capable of withstanding the extreme elements of the weather, measure at least one hundred and twenty centimetres by seventy centimetres, be placed at a height of one hundred and fifty centimetres on unobstructed space, be legible from a distance of at least five metres, and be placed on the boundary of the property fronting the access road. Form PLUPA/DC/4 in turn requires the notice to disclose the plot number and area, the existing and proposed user, the approving County Government, the postal address to which objections are to be forwarded, the fourteen-day period within which they may be lodged, the date of the notice, and the name and registration number of the registered planner. 2. Because the caption of the on-site notice is a mandatory accompaniment to the application, evidence of compliance ought to have been on the 2nd respondent’s own file. None was produced. No caption or photograph of an on-site notice was annexed to the replying affidavit, no Form PLUPA/DC/4 was placed before the Committee, and the approval itself was not exhibited. 3. Mr. Masinde conceded that he had never visited the site, that in his view due diligence did not extend to visiting the site, and that he could not confirm whether any structure stood on the property. He was therefore in no position to speak to the existence, form, dimensions, siting, legibility or contents of any on-site notice, and no other witness did so. The 1st respondent, upon whom the obligation to erect the notice lay, did not appear. 4. As Mwangi establishes, the prescribed contents of a statutory notice are substantive and not cosmetic, and a party asserting compliance with section 58(7) must demonstrate the notice rather than merely assert it. 5. The Committee makes no finding that no on-site notice was erected; that question was not put to Mr. Masinde in terms and the evidence would not support such a finding. What the Committee finds is that compliance with section 58(7) and (8) of the Act and with regulations 15(2)(h) and 16 of the 2021 Regulations was not established on the record. The burden of demonstrating that the process leading to the grant was lawful lay upon the respondents and was not discharged. Compliance with a mandatory statutory precondition is not to be presumed in favour of the decision-maker. **(v) The subsidiarity principle** 1. The appellant is the immediate neighbour, sharing a common wall and a common foundation with the subject plot. On the fourth Mui Coal element he was among the persons most affected by the proposal and was entitled to be more deliberately sought out than the general public. He was not approached, was not invited to any meeting, and received no response to the objection he did lodge. Applying the proportionality introduced by the Supreme Court in British American Tobacco, the intensity of the impact of this proposal upon this appellant demanded more, not less, than the statutory minimum. He received less. 2. For all the foregoing reasons the Committee finds that the process leading to the grant of the change of user did not meet the requirements of section 58(7) and (8) of the Act, regulations 15 and 16 of the 2021 Regulations, section 115 of the County Governments Act or Article 10(2)(a) of the Constitution, and that the public participation undertaken was not within the parameters of the law. The first issue is answered in the negative. **(vi) The structural evidence as a material consideration** 1. The Committee has considered whether the structural relationship between the two properties was a matter the 2nd Respondent was bound to take into account. Mr. Masinde’s evidence was that the approval conferred change of user only and did not authorise construction, and that structural plans are a matter for the structural engineer at the building plan stage. The Committee accepts that the change of user does not itself authorise any building operation. 2. Nevertheless, paragraph 12 of the Third Schedule to the Regulations makes the impact of a proposal on neighbouring land, the requirement of public safety, and the possibility of creating an offence to neighbours, material considerations to which a planning authority shall have regard in determining a development application. Where an application seeks to intensify the use of a plot whose structure is physically interlocked with that of its neighbour, the physical feasibility of any use consequent upon the change is a planning consideration and not merely a building-control one. It goes directly to whether the intended use can be realised at all without endangering adjoining property. 3. The evidence of Engineer Elijah Ochieng Musa was uncontroverted. The 1st respondent did not appear, and the 2nd Respondent called no engineering evidence and no witness who had ever attended the site. The Committee has nonetheless examined the reasoning of the report rather than accepting it merely because it stood unchallenged, and finds it internally coherent and consistent with the physical description of the properties given by the appellant. 4. It is a finding of the Committee that the common wall is a key element in load transfer, founded on a single strip foundation whose footprint straddles both plots in equal portions, and that it carries the ground floor slab, the first floor slab and the roof with no redundancy and no alternative load path. Removing one side of that shared foundation would introduce eccentric loading and reduce the contact area, and may thereby create a collapse mechanism in the appellant’s house. The floor slab is continuous across the units, so that removing one unit would convert internal slab panels into edge panels and alter their design boundary conditions. 5. The Committee finds that the 2nd Respondent granted the change of user without taking into consideration the structural interdependence of Plot No. 104/232 and Plot No. 104/233 or the risk to the appellant’s property, and without any inspection of the site by any officer of the County at any stage. Had the County visited the site, as the appellant contends it should have, the shared wall and foundation would have been apparent. 6. The Committee is careful not to overstate the engineer’s evidence. The report does not say that the plot can never be developed. It says that a series of identified risks must be scientifically addressed, and specific mitigation measures put in place, before any demolition, excavation or construction commences. This finding is therefore not a permanent bar to development of Plot No. 104/233. It is a finding that these are material considerations which any lawful determination of an application affecting this plot must take into account, and which were not taken into account here. The Committee further observes that the ownership and status of a wall and foundation straddling two registered parcels raises questions of private right which are for the Environment and Land Court and upon which the Committee expresses no view. **G. SECOND ISSUE: WHETHER THE APPELLANT IS ENTITLED TO THE RELIEFS SOUGHT** 1. The appellant prayed that the approvals be cancelled. Given the findings above, the approval cannot stand and must be set aside. The Committee has power under section 61(3) of the Act to reverse, confirm or vary the decision appealed against. 2. The Committee has considered whether to grant relief going beyond the setting aside of the approval. It has declined to do so, for two reasons. First, the appellant’s own evidence is that no construction has commenced, and upon which 1st Respondent could act. Second, the 1st Respondent did not appear, and relief beyond that necessary to dispose of the appeal should not be granted against an absent party who has not had the case put to him. 3. The setting aside of the approval is on procedural grounds. It does not preclude a fresh application. Consistently with Mwangi, any fresh application must comply afresh with every procedural and public participation requirement of Part IV of the Act and of the 2021 Regulations, including the full period of newspaper publication prescribed by regulation 15(2)(g) before submission, the on-site notice prescribed by regulation 16 in Form PLUPA/DC/4, and the genuine consideration of any objections received within the prescribed period. It must also address the material considerations identified in paragraphs above concerning the structural interdependence of the two properties. **H. DISPOSITION** 1. The upshot of the foregoing is that the appeal succeeds. The Committee orders as follows: 1. The approval for change of user in respect of Plot No. NAIROBI BLOCK 104/233, granted on 22nd August 2025 under reference number PLUPA-COU-003497-N is hereby set aside for want of compliance with the requirements as to public participation prescribed by section 58(7) and (8) of the Physical and Land Use Planning Act, 2019 and regulations 15 and 16 of the Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021. 2. For the avoidance of doubt, the approval set aside at (a) above confers no right upon the 1st Respondent to demolish, excavate, alter, construct or otherwise deal with Plot No. Nairobi Block 104/233 or with the common wall or shared foundation, and the 1st respondent shall not act upon it. 3. The 1st Respondent is at liberty to make a fresh application for change of user in respect of Plot No. Nairobi Block 104/233, which application shall comply afresh with all the requirements of Part IV of the Act and of the 2021 Regulations. 4. Each party shall bear its own costs of the appeal. Dated at NAIROBI this .....7TH ........... day of .......AUGUST..................... 2026. Name: ............................................................................................. Sign: ............................................................................................... Seal: ............................................................................................... **ROGERS MONDA** **CHAIRPERSON,** **NAIROBI COUNTY PHYSICAL AND LAND USE PLANNING LIAISON COMMITTEE**