Plein v Ndiritu (Environment and Land Case E001 of 2024) [2026] KEELC 4422 (KLR) (8 July 2026) (Judgment)

Plein v Ndiritu (Environment and Land Case E001 of 2024) [2026] KEELC 4422 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEELC 4422 (KLR) Republic of Kenya In the Environment and Land Court at Nyahururu Environment and Land Case E001 of 2024 LN Mbugua, J July 8, 2026 Between Purity Muthoni Plein Plaintiff and Peter Mwangi Ndiritu Defendant Judgment 1.This suit was filed through a plaint dated 22.1.2024. The plaintiff contends that she is the registered owner of parcel L.R. NO. Nyahururu Municipality BLOCK 8/1036, where as the defendant owns parcel L.R. NO. Nyahururu Municipality Block 8/1005, hereinafter, parcels 1036 and 1005. The plaintiff avers that the two plots are located in a medium density zone, but the defendant has embarked on the construction of a high density building without the requisite approvals and also defied a stop order dated 8.9.2023. 2.The plaintiff therefore seeks judgment in the following terms;i.An order of permanent injunction restraining the defendant by himself, his servants, agents, and or employees from constructing high density permanent structures on Nyahururu Municipality Block 8/1005 which parcel is adjacent to that of the plaintiff L.R. No. Nyahururu Municipality Block 8/1036.ii.Costs of the suit plus interestiii.Any other or further relief that this Honourable court may deem fit and just to grant.” 3.The defendant opposes the suit vide his statement of defence dated 14.5.2024, where he admits the ownership of the parcels in question. He avers that the two parcels are in an area which was indeed zoned as a medium density area as per the 1977 plan but this was revised in the 1996 plan. He contends that he duly submitted his building plans to the department of physical planning and the same were approved in year 2017. He however did some alterations to the initial plans where the approvals were given in year 2023. He adds that there are other high density buildings in the area, thus the area is now high density. He prays for the dismissal of the suit. 4.The plaintiff, Purity Muthoni Plein (PW1) was the sole witness for her case. She adopted her witness statement dated 22.1.2024 as her evidence. She also produced the documents in her list dated 22.1.2024 as her exhibits. Her evidence is that the defendant had begun construction on his plot, of which the plaintiff raised various objections culminating in a stay order issued on 8.9.2023. Nevertheless, the defendant continued with the construction. 5.She avers that her plot falls under zone O (11-12) which is existing medium density. In her witness statement Pw1 stated that the parcel of defendant fell under the medium density zone just like her parcel. However in her oral evidence, she stated that defendants parcel does not fall under the same zone as her parcel as it was under zone 5. 6.On cross examination, Pw1 stated that her issue was that defendant should follow the law, that his plans were for year 2017, thus they had lapsed. That the defendant was not constructing in year 2017, that she went to the office of physical planning on 8.9.2023, showed the physical planner the developments of that area, and complained that defendant was depositing material, though she has no copy of the complaint. Thus the physical planner issued the stay order of 8.9.2023 which was asking the defendant to avail a list of requirements. She did not go back to the said office to confirm if the defendant complied with the requirements. She also showed the physical planner a court order in ELC 318 OF 2017, where she was the complainant against the County Government, but the defendant was not a party. 7.Referring to the documents at page 45 of defence bundle, Pw1 stated that the same were the plans for year 2017 for 39 bed sitter units on a two storey building, but the same was written ”proposed alterations” and document is stamped by department of housing and development on 11.9.2024, though she can’t read the year well and it could be year 2023. That the said document also has the date of 30.1.2017. She identifies the document at page 24 of defence bundle as a County revenue bill of 30.6.2023 for alterations on parcel 1005. Further, she stated that the document at page 44 of defence bundle is the notification of approval dated 15.9.2023. She avers that the defendant was given approvals without compliance. 8.She avers that her exhibit 3 is the 1995 development plan, she has no other plan, of which her plot falls under 0 (11-),She has not sued the County Government even though defendant obtained the building plan irregularly. 9.On re-examination, Pw1 stated that an order was issued in the case 318 of 2017 restraining the defendant (read County Government of Laikipia) from approving any high density building plans including the parcel of the defendant. On the photographs at page 35-40 of defence bundle, Pw1 stated that her parcel and that of defendant did not fall under the same zone, of which the buildings of defendant fall under zone 5 (3) which is commercial and is on the other side of the road. 10.The case of defence was advanced by two witnesses. The defendant Peter Mwangi Nderitu testified as Dw1. He adopted his witness statement dated 14.5.2024 as his evidence. He also produced the 9 documents in his list dated 14.5.2024 as his exhibits. He also produced a further list dated 9.7.2024 containing one item as defence exhibit 10. His case is that he bought the suit parcel from one Henry Mburu of which there was a letter of allotment indicating the user as commercial cum industrial. That he submitted building plans to the department of physical planning Laikipia and the same were approved in year 2017, but he could not build due to economic hardships. That in year 2023, he made some alterations to the initial building plans and the same were approved. 11.He reiterated that his parcel is situated in the PDP of 1977 which was revised in 1996 where the area is zoned as high density/industrial area. He avers that sometime in year 2023, he did receive a stay order from the office of the physical planner Laikipia, staying developments on his land and requiring him to submit all the requisite documents. He complied and he was given the go ahead to proceed with the developments vide the approval which was stamped on 11.9.2023. 12.Dw1 avers that the area in question is surrounded by high density buildings as seen from the photographs he availed. He contends that his document number 3 has two dates because in year 2017, he wanted to put up bed sitters, but he didn’t due to shortage of finances, and he revisited the issue in year 2023 when he did alterations which were approved on 11.9.2023. He further stated that plaintiff has never written to him requesting for any documentation. He is not aware of the case No. 318 of 2017. He avers that his materials are still on site. 13.On cross examination, Dw1 stated that in year 2017, he intended to construct bedsitters and his plans were approved on 12.1.2017, but he did alterations of the said plans and submitted the same to the county government on 11.9.2023, of which there was a stay order of 8.9.2023. He avers that the document at page 41 of his bundle was the response to the stay order. He got the approvals on 15.9.2023. He had paid for the alterations on 30.6.2023, even though the plans were drawn in year 2016. He is not aware that he was to notify members of the public, though he notified his neighbour one Joseph Ndungu. He avers that for the photographs he has availed, it is difficult to state in which zone the buildings fall under. 14.On re-examination, Dw1 stated that he first submitted his building plans in year 2017, then in 2023 when he submitted the amened plans. He avers that the stay order did not indicate the nature of the complaint and there was no indication that he was to seek approvals from elsewhere like from the public 15.Dw2 is one Richard Muchoki , a senior physical planner at the County Government of Laikipia whose duties entail ; Preparing development plans for urban areas. Advising the County on matters physical planning. Vetting and processing development applications. Maintaining County physical planning records. Handling plan related disputes as required by court and other dispute resolution bodies like the Counties. 16.That he received a complaint from the plaintiff who stated that there was an ongoing development in her neighbourhood which had no prerequisite development plans from the county, and that the area did not allow such a development as it was a low density area, thus he issued the stay order. She however did not complain about the building plans. 17.DW2 then did a letter to the developer advising him on what to submit, and there was compliance as defendant had followed the procedures of processing development applications, the only item he did not have was the permit from the County. The submitted drawings were two sets of Architectural drawings indicating that he was to construct 36 single rooms and the other was for 18 (1) bedroom units of which the 2017 plans for the 36 single units had been approved in year 2017, and the amendments were done to have 18 one bedroom units which he approved in year 2023. 18.Dw2 further stated that the 1978 Part Development plan had identified the area in question as a ‘deffered area’ meaning it was planned for future use. Then there was another plan of 1995 which planned the zone as medium density and residential zone where bungalows, mansionattes and Town houses can be put up of which the building in question fell under town houses. That from where he stands, the defendant has not breached any conditions and he is not aware of any court order. 19.On cross examination, Dw2 stated that the plans of the 36 single units were approved in year 2017, and the alterations were also submitted in year 2017, but what was submitted to his office related to the 18, one bedroomed units. He avers that the objection lodged in his office on 8.9.2023 was a verbal one, where the complainant stated that the developer was putting up a high density development in a low density area and had no approvals. 20.That he issued a stay order, requiring the defendant to submit the requisite documents including; Application for approval of development plan DCIA Land ownership documents Allocation plan indicating where the development is located. Five copies of building plans. Architecture and Engineering practicing certificates. Land rate clearance certificate Current search. 21.He added that the defendant complied and submitted the required documents which related to the alterations. The approval was then given on 15.9.2023. He is not sure if the approvals of year 2017 had lapsed. He added that a permit was missing. However building plans have a lifespan of 5 years. He doesn’t know if the defendant had approvals from NCA. He did not consider objections of the plaintiff when he approved the building plans. 22.On re-examination Dw2 stated that the plans of the defendant were approved in year 2023, but plaintiff did not write to request for information, of which the defendant had not breached any conditions. He reiterated that the complaint of the plaintiff was verbal and not written, and to date, the plaintiff has never complained formerly. He avers that someone aggrieved by the approval decision ought to have gone to the Liason Committee of the County, of which, the plaintiff did not make such an appeal. 23.He avers that both the parcels of the plaintiff and defendant fall under medium density zone residential zone, of which the plans of the defendant were in conformity with the said zoning. 24.The plaintiff’s submissions are dated 3.6.2026. She argues that she has discharged the burden of proof in tandem with the provisions of Section 107 of the Evidence Act by producing the applicable zoning document which is the part development plan at page 21 of her bundle which confirms that the designated area is medium-density residential zone. That on the other hand the defendant claimed that the zoning was revised in 1996 but he availed no document to that effect. 25.The plaintiff argues that she lodged a complaint with the County Government of Laikipia regarding the construction of a high-density development on defendant’s parcel, of which the County Government issued a stop order of 8.9.2023. She added that the defendant could not lawfully rely on the approvals issued in January 2017 as such approvals had lapsed, thus the developments of the defendant were undertaken in contravention of the Physical and Land Use Planning Act of 2019 (PLUPA). It is also argued that the defendant did not have the requisite NCA certificate when he commenced construction of his building. 26.The submissions of the defendant are dated 13.4.2026. It is argued that the assertion by the plaintiff that the defendant did not have proper approvals are not correct as the defendant had met all the requisite requirements including submitting Form DCIA and the building plans of 2017 and 2023, paid land rate and rent and also availed both architectural and structural plans. 27.On plaintiff’s claim that the area in question was for medium density buildings, defendant argued that his witness DW2 testified that indeed the area was zoned for medium density residential houses including town houses and multi dwelling units of upto 2nd to 3rd floors and that defendant’s project of 18 one bedroom units fell squarely within the permitted use. That plaintiff even admitted that her property and that of the defendant existed partly in commercial zone 5 and therefore her zoning argument is contradictory and unsubstantiated. 28.It was submitted that even the 1977 and 1996 PDPs in question are currently 49 and 30 years old and are therefore outdated. To this end defendant relies on the case of Anami & 2 Others (Suing as Officials of Rhapta Road Residents Association) V County Executive Committee Member (CECM) Built Environment and Urban Planning, Nairobi City County & 20 Others. 29.The defendant contends that the plaintiff is guilty of non-exhaustion of statutory dispute resolution mechanisms, whereby the plaintiff was required to first utilize all available non judicial remedies before seeking judicial intervention. Citing the provisions of Section 76 to 78 of PLUPA, the defendant avers that the plaintiff being aggrieved with the decision of the County Committee Member ought to have appealed that decision to the relevant County Physical Land Use Planning Liaison Committee adding that the plaintiff never justified the non-adherence to the dispute resolution mechanisms provided by legislation. To this end, the defendant relied on the case of Albert Chaurembo Mumba & 7 Others V Maurice Munyao & 148 Others (2016) eKLR amongst other cases. 30.The defendant further submits that the plaintiff has not established any legal right that required protection as she has not established a prima facie case as set out under the Locus Classicus decision in Giella Vs Cassman Brown (1973) EA 358. To this end it is argued that the plaintiff admitted that the approvals of the defendant had the stamps. She also failed to enjoin the County Government of Laikipia whose approvals she implicitly challenged. He argues that the plaintiff has not demonstrated any irreparable damage and that the balance of convenience tilts in his favour, hence the permanent injunction order sought should not be issued. 31.It is further argued that the conduct of the plaintiff in filing this suit amounts to an abuse of the court process as she had apparently filed another suit ELC Case No. 318 of 2017 where she had raised similar allegations, of which plaintiff even failed to attach the pleadings of the said case and explain their relevance to this suit. 32.Finally it was submitted that the plaintiff did not issue a demand notice before instituting the current suit and that she only did a verbal complaint to the County Physical Planner, thus the plaintiff approached the court with unclean hands and she does not deserve the equitable remedy sought in the plaint. Determination 33.I have considered the pleading, the evidence tendered and the submissions filed. The issue falling for determination is whether the defendant should be permanently barred from undertaking his proposed structures on his land on account of the following; construction of high density building without the necessary building plans, lack of a change of user, defiance of a stay order of 8.9.2023. 34.At this juncture it is pertinent to point out that some of the documents availed by the parties (precisely the plans) were not legible. The court directed the parties to avail larger copies and this was duly done, including the document at page 21 of plaintiff’s bundle. 35.The plaintiff avers that the area where the subject land falls is designated as a medium density zone, yet the defendant was constructing high density buildings in contravention of the Physical and Land Use Planning Act of 2019 (PLUPA). On the other hand, the defendant avers that he obtained all the requisite approvals for his building. 36.The provisions of Section 107 of the Evidence Act stipulate that;“(1)(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person”. 37.While Section 109 thereof further provides that:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person”. 38.The first issue concerns the Dispute Resolution Mechanisms. In her pleading, the plaintiff has cited PLUPA (2019) as the statute which was contravened by the defendant. The preamble of the aforementioned statute provides that it is;“An Act of Parliament to make provision for the planning, use, regulation and development of land and for connected purposes.” 39.The provisions of Section 61 (3) of the aforementioned statute stipulate that;“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 that decision to the County Physical and Land Use Planning Liaison Committee within fourteen days of the decision by the county executive committee member and that committee shall hear and determine the appeal within fourteen days of the appeal being filed”. 40.During cross examination, Pw1 stated that she went to complain to the County’s Physical Planning office on 8.9.2023. This culminated in a stay order, but admitted that the said stay order was requiring the defendant to stop construction until he submits a list of documents. This far, the plaintiff was aware that the defendant was given a chance to comply with some conditions. Thus the plaintiff ought to have made a follow up so as to know whether the conditions in the stay order were met. 41.However, in her own words, PW1 stated that;“I did not go back to the physical planner to confirm if the documents were availed..….From September 2023 upto when I filed case , I didn’t go to the physical planner because I was not around” 42.As it were, the approvals were subsequently given on 15.9.2023 to the defendant. It follows that the plaintiff was indeed disregarding the very law that she was accusing the defendant of contravening as she was required by law to escalate the issue to the County Physical and Land Use Planning Liaison Committee within fourteen days of the decision given on 15.9.2023. 43.The Supreme Court in United Millers Limited v Kenya Bureau of Standards, Director, Directorate of Criminal Investigations & 5 others [2021] made reference to the case of Albert Chaurembo Mumbo & 7 others v Maurice Munyao & 148 others; SC Petition No 3 of 2016, [2019] eKLR, where the court stated that;“Even where superior courts had jurisdiction to determine profound questions of law, the first opportunity had to be given to relevant persons, bodies, tribunals or any other quasi-judicial authorities and organs to deal with the dispute as provided for in the relevant parent statute”. 44.By lodging the complaint on 8.9.2023, getting the conditional stay order, then filing the case few months later without making any follow up on the dispute resolution mechanisms provided for under PLUPA, the plaintiff was in essence flouting the law. 45.Secondly, the plaintiff has pleaded that the defendant acted in sheer and open disregard of the stay order of 8.9.2023. However, Dw2 who actually received the complaint of Pw1 and also issued the stay orders avers that he gave the approval and stated that;“All documents were submitted and I gave the go ahead for the construction to continue” 46.It is trite law that what is pleaded must be proved in evidence and in the case at hand, no evidence was proffered by the plaintiff to buttress her pleading that the defendant defied the stay order. 47.Thirdly, it is noted that the approving authority was not sued in this case. The defendant has given an account of how he embarked on getting approvals for the construction on his land in 2017, he did not go ahead and did alterations from 36 single units to 18, 1 bedroom units of which he got approvals in year 2023. His evidence is corroborated by the entity which had the mandate to issue approvals. The question begging for an answer is, who was at fault in issuance of the approval of the alleged unlawful plans? Shouldn’t it be the issuing authority? The least that the plaintiff could have done was to cite the county as a party in these proceedings as they are the ones who had the statutory mandate to issue the development approvals as set out under section 57 and 58 of PLUPA. 48.The fourth issue relates to the claim by the plaintiff that the area was a medium density zone. The plaintiff did not give firm and consistent evidence on the issue. In her oral evidence in chief, Pw1 stated that defendants parcel falls under the same zone as her parcel which is for medium density. Still in her evidence in chief pw1 she had this to say of defendants parcel;“The structure of development falls under zone 5 which is commercial and I can point it out. 49.Then she went on to state that;“My portion of land falls under Zone O and in legends it is on O(11-12) which is ………….medium density residential.” 50.In re-examination, Pw1 stated that;“My land and that of defendant do not fall under same zone, the buildings fall under zone 5(3) which is commercial and it is on the other side of the road.” 51.As for plaintiffs documents which I have keenly gone through, none of them is a Part Development Plan, commonly known as a PDP, as cited at document No. 3 in her trial bundle. The document which the plaintiff terms as a PDP is the one at page 21 which is a Development Plan (DP) for Nyahururu Town. It is worthy to note that although a PDP and a DP are closely related, they are distinct planning instruments, whereby a DP is a broad planning document which acts as a guide in matters planning and development, setting out proposals on land use for instance residential, agricultural, commercial and industrial areas, provision of public utilities, infrastructure etc. 52.A PDP on the other hand covers a specific geographical area showing the boundaries of the land, the proposed land use zoning, plot subdivisions and dimensions as well as reservations for public utilities and road reserves. A PDP identifies the parcel or the area on the ground and is usually issued with a letter of allotment, indicating the nature of land use in a particular parcel; i.e “ unsuveyed residential, commercial etc”. 53.On scrutiny of the document at page 21, it is clear that the same captures Land Use Proposals of which the parcel of the defendant cannot be aligned to any confirmed zoning policy, rule or law as this was, but a general guidance for a big area. 54.The foregoing not withstanding, the court has keenly scrutinized the aforementioned document at page 21 whereby the legends do contain some information on land use. The large plan availed by the plaintiff has a portion highlighted with a red biro marked O.11 which is designated as “ Existing medium density residential”. I take it that this is where plaintiff’s land falls under. As for zone 5 where the parcel of the defendant falls under it has a heading “ commercial” with a mixture of proposed and existing developments including markets, hotels, petrol stations, etc. It follows that even the documents of the plaintiff do not support the claim that the parcel of defendant falls under, medium density. That being the case, the plan at page 21 of plaintiffs bundle cannot be the basis to halt defendants construction. 55.The fifth point for consideration relates to the nature of land use in the surrounding vicinity. At paragraph 8 (C) of the statement of defence, it is pleaded that the plaintiff concealed to this court the fact that there are other high density permanent structures bordering and adjacent to her parcel of land which only means that the area is zoned as a high density area. The plaintiff was mute on these allegations. As it were, her own document at page 21, (the DP) indicates that zone 5 already had existing mixed land use including the T/ Falls hotel, petro station, commercial and market. 56.The 6th point relates to the case 318 of 2017 whereby, plaintiff avers that there was a court order stopping the County from issuing any approvals including the ones to the defendant. However, the plaintiff admitted that the defendant was not a party to the said case and she did not avail such a court order as evidence, or even the pleadings therein. 57.The 7th point relates to unpleaded issues. It is trite law that parties are bound ty their pleadings. See Galaxy Paints Company Ltd V. falcon Guards Ltd (2000) eKLR. As such, the issues now being raised by the plaintiff in submissions regarding the NCA certificate are disregarded as they were not captured in the pleadings. 58.Finally, it has emerged that not only did the plaintiff fail to make a follow up on her complaint that gave visa to a stay order, but she also did not make any demand notice to the defendant before filing the suit. As such her conduct reeks of malice and as rightly submitted by the defendant, this conduct amounts to an abuse of court processes, a practice which should not be condoned. 59.I come in the end, to the conclusion that the plaintiff has not proved her case on a balance of probability. Thus the suit is hereby dismissed with costs to the defendant. DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 8th DAY OF JULY, 2026 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:Nancy Mwangi – C/AM/s Chessa h/b for Mwangi for plaintiffM/s Muriithi for defendant