https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3328

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCEPCC E004 OF 2025** **BENSON NGURE KAIRANGA** **(Suing on behalf of GOLF VIEW RESIDENT ASSOCIATION) ....……..PLAINTIFF/APPLICANT** **-VERSUS-** **TABITHA NAITORE MECHENGI………………………………….. DEFENDANT/RESPONDENT** **RULING** 1. This ruling is on the notice of motion dated 20-11-2026. The motion which is by the Plaintiff is brought under **Orders 1 rule 10(2), 8 rule 3** and **40** of the **Civil Procedure Rules**, Sections **1A, 1B** and **3A** of the Civil Procedure Act. The motion seeks the following residual orders. 2. **Pending the hearing and determination of the main suit, an order of injunction be issued to restrain the Defendant whether by herself or through her agents, servants or anybody acting on her instructions from continuing with the construction activities on L.R. No. Samuru/Mwitingiri Block 1/312, suit land.** 3. **The OCS Samuru Police Station to ensure compliance with the Court orders herein.** 4. **The costs of this application to be borne by the Defendant in any event.** 5. The motion is based on twenty(20) grounds and a supporting affidavit dated 20-11-2025 sworn by the Chairman of the Plaintiff. A summary of the grounds and the affidavit is as herebelow. Firstly, the Plaintiff association owns land located within Murang’a County. The purpose of the association is, among others to control construction activities within the estate called Samuru**/**Mwitingiri /Block 1. The association has entered into a recognition agreement with the County Government of Murang’a which is dated 18th March 2020. The agreement gave the Plaintiff association authority to give an objection or no objection recommendation to the County Government’s Physical Planning Department at the commencement of all development falling within the estate. Secondly, in the year 2025, the Defendant presented an approved plan to the Plaintiff. The plan was approved as it was for single dwelling development. However the approved estate committee, upon inspection of the construction activities on the ground realised that the Defendant was constructing a multi dwelling house. A complaint was raised by the association to the land and planning department of the County Government of Murang’a. The construction activities of the Defendant were halted. The Defendant then applied for another development permission to match the construction on the ground. The County Government approved the second application which the Plaintiff did not object to. Thirdly, despite the said approvals, the Defendant has failed to implement the approved plan as it is on the ground. Instead, it has gone ahead and introduced a new design which is contrary to the approved plan and the rules and regulations governing operations within the estate. She is building a multi dwelling house that is disguised as a single dwelling house on the suit plot. She has introduced an external door in the guest bedroom that is identical to the main door, an extra door has been introduced in the Kitchen, the guest ensuite roof on ground floor which is also master ensuite has been demolished to create stairs, a partitioning wall has been created to separate the porch and a wall on the guest ensuite has been demolished. This is contrary to the approved plan and also clause 3 of the rules and regulations governing construction within the estate. Fourthly, despite being served with several demand letters including an order of suspension of work from the National Construction Authority, the Defendant has continued with the illegal construction activities on the suit parcel. It is for the above stated reasons that the Plaintiff filed the motion dated 20-11-2025. 6. The motion is opposed by the Respondent who has filed a replying affidavit dated 27-11-2025 in which she replies as follows. Firstly, the court is barred from adjudicating over this matter by virtue of Section **61(3)** and **(4)** of the Physical and Land Use Planning Act which provides a dispute resolution mechanism outside the Court. The Plaintiff has not lodged a complaint or appeal under the said mechanism but has instead chosen to prosecute this matter in Court thereby offending the doctrine of exhaustion. Secondly, on 16-7-2025 the County Government of Murang’a approved her application submitted on 27-5-2025. Thirdly, the Plaintiff had the opportunity to challenge the approval within 14 days and failure to do so means that the Application is overtaken by events. Fourthly, the Plaintiff’s letter dated 18-8-2025 was responded to by the Defendant’s counsel. The said letter did not give the date on which the Defendant was to appear before the Plaintiff’s committee and the demand to stop construction before hearing the Defendant was contrary to the rules of natural injustice. Fifthly, the Defendant is not building a multi dwelling house but a private dwelling house. Again, the clause 3 referred to by the Plaintiff provides that “ the land and building **shall only be used** for one private dwelling house(excluding a guest house). It does not therefore bar the Defendant from constructing the suit property as proposed. It only restricts usage. Her building consists of one integrated home with one main entrance , a single kitchen, internal connections and common utilities. What matters is not the number of doors or number or rooms but the number of independent living units. Only one household shall dwell on the suit land and there is only one kitchen and all the entire rooms are not self contained intended for different families. Finally, this current application is intended to curtail her right to develop her land yet she has not in any way infringed on the rights of the Plaintiff. She is using her own resources to construct and she has a lot to lose as the Plaintiff keeps on stopping her from her construction. 7. In his supplementary affidavit dated 25-3-2026, the Plaintiff’s chairman rejoins as follows. One, before filing this suit, the Plaintiff engaged the County Executive Committee member responsible for Physical Planning on 20-1-2025, 4-3-2025 among other dates. A planner was sent to the ground. He confirmed that the Defendant was not complying with the approved plan. She promised to abide by the approved plan but she never did. This resulted in another complaint and the Defendant was stopped from further construction. The committee was slow in acting on the Plaintiff’s complaint and the Defendant would continue the illegal construction despite the stoppage order. Two, the Defendant changed the initial plan to another plan. The new plan was approved but she was to demolish parts of the building that were contrary to the second plan. The Defendant continued violating the approved plan after several follow ups with the committee which refused to issue a stoppage order. When all else failed, the Plaintiff filed this suit. 8. Counsel for the parties filed written submissions dated 6-3-2026 and 25-3-2026. The issues identified are as follows. 9. **Whether the current dispute concerns development permission or failure to adhere to an approved plan.** 10. **Whether the Plaintiff has exhausted the dispute resolution mechanism provided in Section 61 of the Physical and Land Use Planning Act (the PLUPA).** 11. **Whether the Plaintiff has demonstrated any exceptional circumstances that warrant exemption from the procedure laid down in Section 61 of the PLUPA.** 12. **Whether the Plaintiff has satisfied the prerequisites to the grant of an order of injunction.** 13. Regarding the first issue, I find that the dispute in this case does not concern denial or approval of development permission. It concerns the alleged failure by the Defendant to adhere to an approved plan. While Section 61 of the PLUPA deals with decision making and communication, this case is only against the Defendant and requires her to comply the conditions of the lease, allow inspection of the construction by the Plaintiff and the National Construction Authority and the construction on the suit land to stop until there is compliance. The only complaint against the County Executive Committee member is failure to act expeditiously thereby allowing the Defendant to continue with illegal construction on the suit land. Section **61(3)** of the **PLUPA** provides:- ***“ An Applicant or an interested party that is aggrieved by the decision of a County Executive Committee member regarding an application for development permission may appeal against the decision of the County Physical and Land Use Planning Liaison committee within 14 days of the decision by the County Executive Committee member and that committee shall hear and determine the appeal within 14 days of the appeal being filed.”*** The Plaintiff, being an interested party could appeal to the County Liaison Committee but the Plaintiff is not aggrieved by the development permission. It is aggrieved by its implementation hence the suit against the Defendant only. 1. On the second issue, I find that the Plaintiff has not exhausted the dispute resolution mechanism in Section 61 of the PLUPA. The reason for failure to exhaust is well explained in paragraph [6] above. The Plaintiff was not unhappy with the approval of the development permission granted to the Defendant. It was only unhappy with the Defendant’s failure to comply with the conditions of the lease and the development permission. 2. As for the third issue, if the dispute was subject to **Section 61** of the **PLUPA,** the Plaintiff would have been justified in coming to court owing to the inability of the County Executive Committee member concerned with Physical and Land Use Planning to rein in the Defendant. From the evidence so far filed, the Plaintiff has demonstrated that there is a dispute between it and the Defendant that can be resolved by the application of the law. Under Article 50(1) of the Constitution, the Plaintiff has the right to bring the said dispute to court. The Plaintiffs dispute is justiciable and this Court is the right forum because the dispute relates to the use of land. 3. Since the dispute is yet to be heard, I will limit myself to the balance of convenience in regard to the principles to be considered when dealing with an application for injunction. See **Giella vs Cassman Brown 1973 E.A. 358**. It is my finding that the balance of convenience tilts in favour of allowing the notice of motion dated 20-11-2026. It will be costly to the parties and the County Executive Committee member to restore the suit land to its original condition in the event that the Defendant is found to have breached the conditions complained of by the Plaintiff. 4. For the above stated reasons and in conclusion, I **allow** the notice of motion dated 20-11-2025 in terms of prayers **3** and **4**. Costs in the cause. **It is so ordered.** **Dated, Signed and Delivered virtually at Murang’a this 3rd day of June, 2026.** **M.N. GICHERU JUDGE.** **Delivered online in the presence of; -** **Court Assistants– Jackline and Antony** **Plaintiff’s Counsel – Mr Muturi** **1st Defendant’s Counsel - Mr Kihiko**