https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5068

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCEPCC/E001 OF 2026** **BENSON NGURE KAIRANGA(Suing on behalf** **GOLF VIEW RESIDENT ASSOCIATION ……………………..……..…PLAINTIFF/APPLICANT** **VERSUS** **DAVID MWANGI GACHIE…………………………………………...DEFENDANT/RESPONDENT** **RULING** 1. This ruling is on the notice of motion dated 2-1-2026. The motion which is brought under **Orders 1 rule 10(2), 8 rule 3 and 40** of the **Civil Procedure Rules** and **Sections 1A, 1B** and **3A** of the Civil Procedure Act seeks the following residual orders. **3. Pending the hearing and determination of the main suit, an order of injunction be issued to stop and restrain the Defendant herein whether acting by himself or through his agents, servants or anybody acting on his instructions from continuing the construction activities on the parcel of land known as Samuru/Mwitingiri Block 1/963.** **4. That the OCS Samuru Police Station to ensure compliance with the orders herein.** **5. The costs of this application to be borne by the Defendant in any event.** 1. The motion is based on eighteen (18) grounds and is supported by the affidavit of the Applicant dated 2-1-2026. The gist of the grounds and the affidavit is to the following effect. Firstly, Golf View Residents Association is a registered association. Its purpose is to govern operations which include controlling constructions activities within the estate called Golf View Estate located at Samuru/Mwitingiri/Block 1. Secondly, the association entered into a recognition agreement with the County Government of Murang’a on 18-3-2020. Under this agreement, the County Government gave the association authority to issue objection or no objection recommendation to the County Government Physical Planning Department at the commencement of all development falling within the estate. It was further agreed that when considering an application for development permission, the County Government would take into account comments made on the application by the association and to further consider special condition number 3 in the leases of all the residents that the land shall and the buildings thereon shall only be used for one private dwelling (excluding a guest house). All new developers are required to present their application and plan to the association for approval before presenting them the Land, Physical Planning and Urban Development Department of the County Government. 2. Thirdly, in the course of the year 2025, the Defendant who is a resident and a new developer within the estate, initiated construction activities without the approval of the relevant department of the County Government. No application was presented to the estate for approval. Further the Defendant is constructing a multi dwelling house that is disguised as a single dwelling house. He is therefore in breach of clause 3 of the lease conditions and the recognition agreement dated 18-3-2020. 3. Fourthly, despite the Defendant being served with several demand letters and an enforcement notice from the County Government, he has continued with the illegal construction activities on the suit parcel. It is therefore imperative that the orders sought do issue. 4. The motion is opposed by the Defendant who has sworn a replying affidavit dated 6-3-2026 in which he responds as follows. One, this Court is barred from entertaining this dispute at this stage as there exists a dispute resolution mechanism under Section 61(3) and (4) of the Physical and Land Use Planning Act which should be exhausted first. Two, the Plaintiff lodged a complaint under that mechanism and it is now pending adjudication and determination before the said committee. Three, the Defendant made an application for approval of his architectural and building plans to the County Government which were duly approved on 27-2-2026. The orders sought cannot be granted as the approvals complained of have already been issued and the application has been overtaken by events. 5. Four, the Defendant is stranger to the allegations that special condition number 3 imposes conditions on the type of dwelling houses to be constructed within the estate. Again, the Plaintiff is not privy to the terms of the Defendant’s lease as he was not a party to the sale agreement through which the Defendant acquired the suit property. Five, the recognition agreement relied upon by the Plaintiff cannot override the statutory dispute resolution framework established under Section 61(3) and (4) of the Physical Land Use and Planning Act. The Plaintiff in circumventing the jurisdiction of the Liaison Committee by inviting this Court to assume jurisdiction over a matter that should be addressed by a different tribunal. Six, the project that the Defendant is undertaking is a single private dwelling house intended solely for his family. 6. Seven, the house under construction is a single integrated residential house with one main entrance, a single kitchen, common utilities and internal connections plus a servant unit. For the above and other reasons, the Defendant prays for the dismissal of the motion dated 2-1-2026. 7. The only submissions that I see on record and those by the Plaintiff’s counsel dated 25-5-2026. The issues for determination identified by learned Counsel are two. 8. **Whether this Court is barred from adjudicating under Section 61(3) and (4) of the Physical and Land Use Planning Act.** 9. **Whether the Applicant is entitled to the orders sought.** 10. I have carefully considered the application in its entirety including the ground, the supporting affidavit, the replying affidavit and the written submissions on record. I find that the following issues arise. 11. **Whether this is a dispute under Section 61 of the Physical Land and Use Planning Act (The PLUPA) or not.** 12. **Whether the Defendant had the necessary approvals from the County Government before embarking on the construction on the suit premises.** 13. **Whether there exists any mechanism to stay construction until the Appellate mechanism is exhausted other than by this Court.** 14. **Whether a prima facie case with a probability of success has been made out and if the Applicant stands to suffer loss that cannot be compensated with an award of damages.** 15. **In whose favour does the balance of convenience tilt.** 16. Regarding the first issue, I find that this is not a dispute under Section 61 of the PLUPA. That section deals with how an aggrieved developer would approach the Court if he were denied development permission by County executive committee member. The section therefore deals with disputes between developers and the County Government. It does not deal with disputes against developers by their neighbours or other persons aggrieved with development that they claim contravenes the law. Since the Defendant is happy with the status quo, he will not appear before any tribunal to litigate. He is the person who would file a dispute if he was unhappy. The person aggrieved is the Plaintiff and it is not covered by the mechanism in Section 61 of the PLUPA. 17. As for the second issue, it would seem that the Defendant did not have the necessary approval when he commenced the construction. The approval that he has attached is dated 27-2-2026. This suit was filed on 2-1-2026. This therefore means that the Defendant did not have the necessary approval when he commenced the construction complained of. The Defendant has not exhibited his lease to prove that it authorises him to construct the building complained of. He should have demonstrated that he fits within an exemption and how his building is a single dwelling house. 18. Looking at the third issue, there is no evidence that the PLUPA or its regulations have a mechanism that stays contentious development such that illegal development does not continue as litigation is pending. There is nothing to show that the County Government or any other body apart from this Court can check impunity where breach of controlled development law is alleged. In the absence of evidence that the County Government can deal with alleged illegal constructions expeditiously this court has inherent powers under Sections 1A, 1B and 3 and 3A of the Civil Procedure Act to ensure that there is no abuse of due process. Further under Section 9(4) of the Fair Administrative Act, 2015, this Court has power to exempt a person from the obligation of exhausting any remedy if the court considers the exemption to be in the interest of justice. In this case, those exceptional circumstances have been shown to exist. 1. Finally, I find that the Plaintiff has made out a prima facie case with a probability of success and the balance of convenience tilts in favour of staying the construction until the dispute herein is heard and determined. Consequently, I allow the notice of motion dated 2-1-2026 in terms of prayer 3. Costs in cause. **Dated, Signed and Delivered virtually at Murang’a this 30th day of July, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistant – Antony** **Applicants counsel – Absent** **Respondent’s Counsel – Mr. Ogango**