https://new.kenyalaw.org/akn/ke/judgment/keadr/2026/1

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. E004 OF 2026** **MOGRA SOUL WINNERS RESCUE CENTRE…………………………………………………… APPELLANT** **-VERSUS-** **NUHA ENERGY LIMITED…………………………………………………………… ………… 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/E004 of 2026, filed on 16th July 2026 by **MOGRA SOUL WINNERS RESCUE CENTRE**, and vide Minute No. 3/4/08/26 dated 4th August 2026 made a determination as follows: **A. THE PROCEEDINGS** 1. The statement of appeal was filed on 16th July 2026. It was accompanied by a bundle of documents in support and a supplementary affidavit sworn by **DAVID NJOROGE WAMBIA**. 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 4th August 2026 neither the 1st Respondent nor any representative on its behalf appeared. The Committee is satisfied that the 1st Respondent had notice of the hearing date, the appellant having filed an affidavit of service sworn by Gerald Gakaria, the advocate for the appellant, evidencing service of the Committee’s process upon the 1st Respondent. 5. The Committee accordingly proceeded to hear the appeal in its absence. 6. The Committee that heard and determined this appeal was constituted as follows: Rogers Monda (Chairman), Architect Oino Juma, Planner John K. Barreh, Advocate Kihara Njuguna, Architect Stephen Mwilu and Surveyor Isaiah Bonyo. Every member named above was present throughout the hearing on 4th August 2026 and throughout the deliberations, and unanimously pronounced upon the appeal on its merits. **B. THE APPELLANT’S CASE** 1. Mr. David Wambia testified on behalf of the appellant. He stated that the property in question is located in Muthaiga North, along Kiambu Road; that it is used as a children’s home and is a refuge for rescued homeless children; and that it was established in 2009. 2. He learnt of the proposed change of user on 28th May 2024, when a banner was put up on the neighboring site. On 10th June 2024 he wrote a letter of objection opposing the change of user to a petrol service station. He received no response to it. 3. That prompted him to follow the matter up in person at the County offices, where he was eventually given a response letter which had not been signed. He further stated that the 1st Respondent, NUHA Energy Limited, the developer, had commenced excavation in July 2026, generating noise and dust, and had continued to do so despite the appellant’s requests that it stop. 4. The appellant expressed disappointment at the manner in which the Urban Planning Department had handled its letter of objection to the change of user application. 5. His principal contention was that public participation never took place. As the immediate neighbour he was never invited to participate, and no public hearing was held. 6. The appellant was deeply concerned about the effect a petrol station would have on the children, taking into account their playful nature. The proximity would be dangerous and would present a fire risk. 7. His prayer was that the approval be cancelled, because the development poses a threat to the children in the children’s home. 8. On cross-examination he confirmed that the response letter from the County was not signed, but stated that he had obtained it from an officer of the County who retrieved it from a computer file. 9. He was categorical that there was no public participation, and that as the immediate neighbour he would have known had any such forum been held. **C. THE 2ND RESPONDENT'S CASE** 1. The 2nd Respondent called Mr. Wilfred Masinde, Deputy Director, Development Inspection and Planning Litigation, as its sole witness. 2. He testified that the development was lawful because all the procedures had been followed. Public participation, he said, took place through an on-site advertisement mounted on 28th May 2024 and through a notice in a daily newspaper, as required by PLUPA, and the public had fourteen days within which to comment. In his view that was adequate public participation. 3. He stated that the developer had obtained both change of user approval and building plans approval from the County Government of Nairobi, and had therefore complied with the minimum requirements. The change of user was to petrol station use and was approved on 28th June 2024 (Reference PLUPA-COU-002125-N, Plot No. LR No. 141861/5, Nairobi Block 189/909). 4. He was categorical that the appellant’s letter of objection to the proposed development, addressed to the County’s Urban Planning Department, bore no receiving stamp. 5. He stated that in the course of his routine development inspections he had visited the site on 15th July 2026, and that the site had been cleared but construction had not begun. 6. He was of the opinion that the development had met the minimum requirements. 7. On cross-examination it became apparent that the newspaper advertisement he produced was not legible, and that it bore no date of publication. 8. It was also apparent that the advertisement did not state the plot number to which the change of user application related. 9. On the process of approval, the witness was asked to explain the sequence of dates, the letter of objection being dated 10th June 2024 and the approval 28th June 2024. He was further asked why he had produced only the approval letter, and none of the documents supporting the application. Counsel for the appellant submitted that the process matters precisely because it is prescribed by law, and drew the Committee’s attention to the witness’s evidence that he “thinks” public participation was conducted. The witness responded that the planner was the person who could confirm that information. 10. Pressed on his position that nothing stood in the way of the developer obtaining the approval, the witness was asked whether any law, regulation or other requirement governs non-conformity of user, that is to say the siting of particular developments next to one another, such as a petrol station next to a children’s home. He answered that the law is meant to serve justice and order. 11. The Committee sought clarification from the witness on the following matters: 1. whether the on-site advertisement met the dimensions prescribed by the PLUPA Regulations, namely 120 cm by 70 cm, mounted at a height of 150 cm and legible from a distance of five metres; 2. why the documents pertaining to the approval had not been produced; 3. the letter written by EPRA recommending that comprehensive public participation be conducted with the key neighbours; and 4. whether the project had been registered with the National Construction Authority (NCA). 12. The witness was unable to provide the foregoing information, the relevant documentation not having formed part of the evidence he had tendered. **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. In a dispute under the Physical and Land Use Planning Act, 2019 (PLUPA) and its Regulations, public participation is not a free-standing constitutional complaint. It arises at the intersection of three layers of obligation, and the authorities are most useful when each is 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, the Committee has asked itself the following questions and has recorded a reasoned answer to each on the evidence. Which statutory participation obligation attached to the decision under challenge? Were the prescribed notices given at all, at the prescribed time, and containing every element that the Regulations require? Was the mode and reach of the notice adapted to the persons actually affected? Was relevant information disseminated, or merely published? Was a genuine forum provided, and kept open for the prescribed period? Were the views received considered in good faith, and is there a record of that consideration? And was the degree of participation 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 did not comply with regulation 15(2)(g)** 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. The advertisement produced by the 2nd Respondent was, as noted above, illegible, undated, and silent as to the plot number to which the application related. PLUPA/DC/3 form requires the plot number to be part of the notice to be published in the paper. How else would a member of the public know whether the plot is in his neighborhood and avail him an opportunity to challenge the application? 3. The Committee finds that the application was submitted in breach of a mandatory precondition prescribed by regulation 15(2)(g) as read together with form PLUPA/DC/3. At the date of its submission it was not a competent application, and there was accordingly nothing properly before the County that was capable of being approved. **(ii) 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, and no Form PLUPA/DC/4 was placed before the Committee. All that was exhibited was the approval itself, together with the newspaper notice already found to be defective. 3. 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. 4. The Committee makes no finding that no on-site notice was erected. The appellant himself spoke of a banner placed on the site on 28th May 2024, and the question whether that banner answered the requirements of Form PLUPA/DC/4 was not put to Mr. Masinde. 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 it was not discharged. Compliance with a mandatory statutory precondition is not to be presumed in favour of the decision-maker. **(iii) The subsidiarity principle** 1. The appellant is the immediate neighbour of the subject plot. On the fourth Mui Coal element he was among the persons most affected by the proposal, and was entitled to be sought out more deliberately than the general public. He was not approached, he was not invited to any meeting, and he 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 than the statutory minimum, not less. 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. **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 setting aside of the approval is on procedural grounds, and 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. That includes 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 concerns as to the safety of the children in the appellant’s home, which were raised before this Committee and remain unanswered on this record. **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. 14861/5 (NAIROBI BLOCK 189/909), granted on 28th June 2024 under reference number PLUPA-COU-002125-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 excavate, demolish, alter, construct or otherwise develop Plot No. 14861/5 (Nairobi Block 189/909), and the 1st Respondent shall not act upon it. (c) The 1st respondent is at liberty to make a fresh application for change of user in respect of Plot No. 14861/5 (NAIROBI BLOCK 189/909), which application shall comply afresh with all the requirements of Part IV of the Act and of the 2021 Regulations. (d) 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**