https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3418

Kilonzo t/a Kokomo Beach Bar and Restaurant & another v County Executive Committee Member for Lands, Physical Planning, Housing and Urbanization & 2 others (Environment and Land Petition E013 of 2024) [2026] KEELC 3418 (KLR) (19 May 2026) (Ruling) Neutral citation: [2026] KEELC 3418 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Petition E013 of 2024 FM Njoroge, J May 19, 2026 Between Agnes Nthenya Kilonzo t/a Kokomo Beach Bar and Restaurant 1st Petitioner Kokomo Beach Bar and Restaurant Limited 2nd Petitioner and County Executive Committee Member for Lands, Physical Planning, Housing and Urbanization 1st Respondent County Government Of Kilifi 2nd Respondent and Lion Beach Resort Interested Party Ruling 1.The applicant in the present application, Lion Beach Resort, who was named as the 3rd respondent in the petition has come back to this court seeking to have Agnes Nthenya Kilonzo, OCS Watamu - one Edmund Mwalimu, and Honorable Jane Maiki Kamto to appear in person before this court to show why they cannot be jailed for a period not exceeding 6 months for disobeying the court orders of 16th September 2025; that in the alternative and without prejudice, this court do punish them once they are found to be in contempt and by any other appropriate measure the court do stamp its judicial authority and to preserve the respect for the court orders. Those orders are sought in the application dated 27/11/2025. 2.The background to the application is that this court issued its final judgment and degree on 16th September 2025 which the applicant states were duly extracted and served upon the respondents. The alleged contemnors have not bothered to take any step as directed by the court in obedience or in compliance of the direction in the judgment delivered by the court. It is stated that Agnes openly and without due regard of the court directions, has made it clear that she has “pocketed” (loosely translated by this court to mean “compromised” ) all the relevant authorities, and that the applicant should forget about the demolition of the offending structure located near the applicant’s premises. Consequently, the applicant is frustrated and cannot enjoy the fruits of its judgment, and that the access to their premises has been blocked by the first and second respondents; it is stated that the offending structure that is built on the riparian land blocks customers or clients from accessing the applicant’s premises. That the applicant is losing in business due to the first respondent’s illegal which is in violation of its rights. It is asserted that Courts do not issue orders in vain and unless punishment is meted out to the respondent, disobedience will continue. The application in supported by the sworn affidavit of Ignace Mchana Nyambu, also dated 27th November 2025. The replying affidavit has a copy of an Affidavit of Service of the court order labelled as exhibit “IM2”. 3.The deponent accuses Agnes of having exerted influence over all the relevant authorities and frustrating the demolition of the offending premises and is concerned that the court process had been purely an academic exercise. It is also alleged that Agnes has hired goons to man the illegal premises at all hours of day and night in order to ensure that execution is thwarted by all means; that the immediate action of the court is necessary to prevent any further violation and restore respect for the rule of law. The Responses. Response Of the First and Second Respondents/Petitioners. 4.The firm of KKM Awili filed grounds of opposition on behalf of the first and second petitioners/respondents. The ground state as follows, (verbatim):a.That the application is premature misconceived and bad in law for the reason thati.The prayers/orders sought by the applicant are not tenable as there has never any willful and deliberate disobedience of court orders on the part of the respondents whatsoever;ii.The application does not state clearly and unequivocally which honorable court order are alleged to have been violated by the respondents.b.That from the reason on the face of the application the applicant in his affidavit dated 27th November 2025 at paragraph 2 has attached a decree of this court dated 16th September 2025 marked as “IM1”.c.That paragraph 3 of the above-named affidavit the applicant has proceeded to attach another court order of ELCPMISC E001 of 2024 marked as IM2.d.That from the reason on the face of the application it appears the (applicant) is hell bent on executing the honorable court order in ELCP MISC E001 OF 2024 despite the said order being superseded by this honorable court order of ELCLPET E013 of 2024.e.That in the premises the said application is superfluous and was brought to vex and oppress the respondents and or abuse the process of this honorable Court.f.That in (sic)the interest of justice the said application should be dismissed with costs to the first and second respondent. 5.Agnes also swore an affidavit dated 27th January 2026 in response to the Motion. She deponed that in the judgment the court ordered the first and second respondents, that is, the County Executive Committee Lands Physical Planning Housing and Urbanization and the County Government of Kilifi to comply with relevant laws and the Constitution in dealing with the petitioner’s structure. She spoke of existence of Beach Management Units. She claimed to believe his advocate’s advice that the first and second petitioners are members of the Watamu Beach Management Unit which had ventured into other economic activity due to unpredictability of fortunes in the fisheries sector, that it is in line with the laws and regulations and the necessary approvals that the structure, which helps the Beach Management Unit members, was erected. She denies having hired goons. She alleged that the first and second petitioners assist in the safe and effective use management and operation of the fish landing station. It is deponed that since the judgment was delivered the first petitioner and the first and second respondents have had engagement with respect to legality of the petitioner’s structure, location, business permit or renewal thereof, and the business permit has since been renewed; she avers that the present application has been rendered as misplaced and an abuse of the court process. She denied that the first petitioner is habitual contemnor, or that she has exerted any influence over the authorities as alleged by the applicant; that ELC MISC E001 of 2024 was superseded by the order in ELC LTE 013 of 2024. She also alleged that the actions of the applicant including the pursuit of ELC E046 of 2023 which had been withdrawn and the kind of relief he seeks here which to her is procedurally abusive, are in violation of the doctrine of finality to litigation. 6.Both the applicant and the petitioners filed submissions dated 30th January 2026. This court has read carefully through those submissions and has considered them in the preparation of this ruling. The Applicant’s Submissions 7.The applicant a verse that it has built a five-star hotel, Lion Beach Hotel and Resort on a front row beach plot and the petitioners’ illegal structure has been built on riparian land and in such a manner as to obstruct the applicants view of the Indian Ocean. The applicant salt and obtained demolition orders in Miscellaneous Application Number 1 Of 2024. Following the petitioners’ application dated 28th February 2024 in third case the orders of demolition were stayed but the stay others were later vacated on 29th May 2024 the court having found that they said motion was unmerited. It is stated that a second stay order was obtained in the present proceedings. That's however on 16th September 2025 the court partially allowed some of the prayers sought in the present procedures but condemned the contemnors for failure to secure the development permission to construct their business on riparian land. 8.The applicant appears to labor under the impression that there is an order of stay and this got wishes to clear the air regarding that point. If there was any other stay in the present matter then it naturally expired on 3rd of February 2022 when none the proceedings ended without any extension of any orders. 9.Regarding whether the alleged contemnors are in contempt the applicant points out paragraph 74 to 76 and 87 of the court's judgment which found the petitioners guilty of failing to secure the necessary planning permission from the county government. It is stated that it has been established that there was a court order and that it has been served on the alleged contemnors and that it has been disobeyed. It was submitted that this court has power to punish parties for disobedient or breach of court orders under order 40 rule 3 of the civil procedure rules. The First and Second Petitioners’ Submissions 10.Cancel for the first and second petitioners objected to the application stating that the applicant to have the petitioners punished for disobedience of a court order from a past case which had already been superseded by the judgment in the present case. He stated that the question was whether the first and second petitioners had disobeyed the court order issued on 16th September 2025 which answer was in the negative according to him. You're so submitted that the applicants have not established the threshold for contempt of Court and are not entitled to the orders sought. He admitted that the court directed the first and second respondent in the petition to comply with the relevant laws and the constitution in dealing with the petitioners’ structures. That there was no older directing demolition or removal of the structures or eviction of the first and second petitioners. He stated that there was no other barring the first and second petitioners and the fourth alleged contemnor from facilitating lawful business operations on the impugned premises. He stated that the annexure of two different Court orders from two different cases created ambiguous to which one of them have been breached by the petitioners. Is stated that contempt must be proved to a higher standard than the balance of probabilities though not beyond reasonable doubt. Now the applicant had failed to demonstrate that the petitioners had wheel free failed refused or neglected to obey a court order. 11.He accused the applicant of forum shopping and lamented the violation of the doctrine of finality of litigation. He posited that the issues invest dispute have already been settled by a final judgment in the present petition. Analysis And Determination 12.It is necessary to state that before this petition came up, the County Government of Kilifi formed the opinion that the petitioners’ structure was illegal and that it ought to be demolished. An application was made to confirm the enforcement notice and this court confirmed it on search and search a date. Upon such confirmation the petitioners approached this court seeking to set aside the order of confirmation unsuccessfully in the former csse and they resorted to filing the present petition. In the present petition the court not only found their structure to be illegal and in violation of environmental law but also considered whether they have been issued with any notices under the relevant law. It found that they had not. The court stated as follows in its judgment:“90.On the basis of the same argument regarding the absence of evidence of service of a letter inviting the petitioners to a consultative meeting with respondent I find that the enforcement notice and the demolition order were not served upon the petitioners.91.Failure to serve the enforcement notice left the petitioner in the dark as to what was required of him and thus resulted in denial of the legally available avenue of redress available to the petitioners before demolition of their premises as set out in Section 72(3) and (4). This court also agrees with the petitioners that without service of the enforcement notice, issuance of a demolition order was incompetent.92.Natural justice requires that a person be not condemned unheard. The petitioners ought to have been engaged by the respondents for the latter to hear their side of the story regarding their development prior to the issuance of the demolition notice, and they should have been notified of the issuance of the enforcement notice prior to the issuance of the demolition order. (See the case of Joseph Maina Muigana & 16 Others V County Government of Nyandarua ELC Case Number E007 of 2023.) These actions on the part of the respondents would have satisfied the requirements of Article 47 of the Constitution.” 13.The court disagreed that the enforcement notice against the petitioners could only be and force after their prosecution. The court stated as follows:“93.However, I decline to agree with the petitioners that a demolition order could only issue after prosecution of an offender. Section 57 of the Physical Planning and Land Use Act only prohibits and criminalizes development effected without a development permission granted by the respective County Executive Committee Member and prescribes the alternative penalties arising therefrom but does not compel the respondent in all circumstances to prosecute the offender. In this court's view it is for the respondents to assess the circumstances surrounding the illegal development and elect whether or not to prosecute the offender or to enforce the law by demolition. In this court’s view, a demolition notice and subsequent demolition is the ideal recourse in a situation where all the mechanism set out by Section 72(3) PLUPA have been exhausted, and where the CEC is only left with the option of enforcing the provisions of Section 72(4) which demands restoration of the land and which may necessitate demolition.” 14.In the entire judgment the court was principally concerned with safeguarding the rights of the petitioners to a fair trial of the dispute in accordance with the procedures set out in Section 72(1), (2), (3), and (4) of PLUPA. The court observed as follows: See paragraph 100 of the judgment.“100.This court also finds that under Article 50(1) with the Constitution, the petitioners’ right to a fair trial of the dispute in accordance with the procedures set out in Section 72 (1), (2), (3), and (4) of the Physical and Land Use Planning Act was violated since they were not accorded the opportunity ventilate their dispute under those provisions before the demolition order issued.” 15.The court found that the right to a fair hearing of the petitioners had been violated and referred the County Government back to the provisions of the law in order to accord the petitioners a hearing. That notwithstanding, the court made serious findings of non-compliance with environmental law in general and the Physical and Land Use Planning Act in specific in the body of the judgment. It is only proper to state that save for the determination that there was denial of the petitioners’ right to a fair hearing, the rest of the petitioner’s case was totally unmeritorious and their building stands condemned to date. The final orders made included the following:“(e)The respondent shall forthwith comply with the relevant laws and the constitution in dealing with the petitioner’s structure." 16.It is true that no direct order compelled instant demolition, but it is hardly comprehensible that any officer holding office in the Kilifi County Government, which County Government had already condemned the petitioners’ structure before this petition was lodged and commenced its demolition, could be said to have wholistically construed the judgment dated 16th September 2025 as confirming upon the County Government any absolute discretion as to whether or not to demolish the petitioner’s structure. The only course it had was to hear the petitioners, which it had not done, before resuming any enforcement action. Any appearance of collusion and misconduct between the petitioners and the County Government officers, which spectacle does not befit public administration in a sensitive matter such as the environment surrounding the sensitive issue of riparian land, must be avoided. 17.It is clear that all rights and liabilities of the parties involved in this petition with regard to the structure erected by the petitioners on riparian land were finally determined in the judgment in the present petition where it was found that structure does not comply with the Environmental Management and Coordination Act and the PLUPA. 18.It is also not lost on this court that the original intent of the County Government of Kilifi was to demolish the said structure. After awarding the Petitioners damages for violation of rights and ordering the respondents to hear them, it would have been expected that the process would have been expeditiously finalized; it would also have been expected that only the more humane means of removal of the offending structure would be utilized and within a reasonable time frame rather than the sudden attempt at demolition that had occurred before. 19.It is also the case that an order was made in a former case before this court whose effect was that the County Government ought to demolish the structure. That order in the earlier litigation has not been set aside nor appealed against. Thus, the only purpose of referring the matter back to the county Government was to ensure that the proper formalities of a hearing were followed since the County Government had earlier on found the petitioners’ structure to be illegal (a finding this court confirmed in the judgment in this petition) and had even partially demolished the same. 20.At the present juncture, this court’s view is that the cumulative effect of the orders made in the two pieces of litigation it has handled is that:a.The County Government has been accorded sufficient time to take the dispute through the proper legal mechanisms under PLUPA and such timelines have expired since the judgment was delivered in this case;b.All the parties are aware of the illegality of the petitioners’ structure and the prejudice that it is causing the surrounding environment. 21.It is not conceivable that there is any wrong without a remedy in our environmental law justice sphere; the Latin maxim ubi jus ibi remedium still applies. The High Court ruled long ago that the right to a clean and healthy environment is a right to life, and life is precious. Indeed, in environmental law petitions made under the Constitution, to protect that right to life, this court has duty to issue a wide range of reliefs at its discretion as seen in Article 23 of the Constitution. This court’s interpretation of Article 23(3) of the Constitution is that the list of reliefs listed therein is not exhaustive. 22.This court has now been called upon to punish the alleged contemnors in the present application, and they are being heard to state that there was no direct order issued for demolition, and it will not issue such an order in the present application. However, any course of action this court takes must be geared to ensure that the petitioners and the respondents in the petition no longer allege that there is no order compelling the demolition of the petitioners’ structure in this matter while the respondents in the petition had had already condemned the petitioner’s structure and commenced demolition thereof. 23.Thus, in the present application, this court will only clarify the effect of its judgment dated 16th September 2025 and also issue a specific timeframe for action on the part of the respondents so as to put this litigation to a final end. 24.This court therefore orders as follows in order to give effect to both the decision in this petition:a.The petitioners and the respondents herein shall jointly and severally within 60 days from the date of this order remove or demolish the petitioners' structure and they shall restore the riparian zone it now occupies to the natural state it was in before in the development was commenced thereon;b.Each party shall bear their own costs of the present application. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 19TH DAY OF MAY, 2026.MWANGI NJOROGE,JUDGE, ELC, MALINDI.