https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4248

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ENVIRONMENT & LAND PETITION E053 OF 2022** **TOM BROWN LIMITED .........................................1ST PETITIONER** **HON. JOHN MWAU .............................................2ND PETITIONER** **VERSUS** **COUNTY EXECUTIVE COMMITTEE** **MEMBER IN CHARGE OF PLANNING .................1ST RESPONDENT** **NAIROBI CITY COUNTY ....................................2ND RESPONDENT** **NOVA REALTY GROUP LTD ............................. 3RD RESPONDENT** **AND** **THE ATTORNEY GENERAL .......................1ST INTERESTED PARTY MINISTRY OF DEFENCE ......................... 2ND INTERESTED PARTY THE CHINESE EMBASSY, KENYA ........... 3RD INTERESTED PARTY DIRECTOR, DIRECTORATE OF** **CRIMINAL INVESTIGATIONS,** **NAIROBI CITY COUNTY .......................... 4TH INTERESTED PARTY NAIROBI CITY COUNTY,** **COUNTY PHYSICAL AND LAND USE** **PLANNING LIAISON COMMITTEE …....... 5TH INTERESTED PARTY** **JUDGMENT** **Introduction** 1. This dispute captures an enduring tension. On one hand stands a developer (the 3rd Respondent) asserting its constitutional and statutory right to develop private property in accordance with the approvals granted by the relevant public authorities. On the other hand, are residents (the Petitioners and the Kenya Defence Forces (the 1st Interested Party) who contend that the proposed high-rise development threatens the character of the environment and was approved without due regard to the applicable planning and environmental laws. 2. This court is therefore called upon to determine whether the impugned proposed development by the 3rd Respondent complied with the law, struck the balance demanded by the Constitution, and respected the public interest that underpin orderly urban planning. **The Petition** 1. Vide the Petition dated 17th November, 2022, the Petitioners seek the following reliefs as against the Respondents jointly and severally: 2. ***A declaration be and is hereby issued that the 1st and 2nd Respondents' acts of refusing to provide copies of applications and supporting documents, copies of the minutes of the decision, copies of the change of user and building plan approvals and other documents duly requested concerning L.R. No. 209/1458/2 constitute a violation of the Petitioners' right to access to justice and right to fair administrative action.*** 3. ***A declaration be and is hereby issued that the 1st and 2nd Respondent's purported change of user and/or alleged building approvals and or permissions in respect of L.R. No. 209/1458/2 are illegal, unprocedural and unreasonable.*** 4. ***A declaration be and is hereby issued that the 1st and 2nd Respondent's purported change of user and/or alleged building approvals and/or permissions in respect of L.R. No. 209/1458/2 violate, deny, threaten and infringe on the Petitioners rights under Articles 31, 42, 68, 70, 47, and 48 of the Constitution.*** 5. ***A declaration be and is hereby issued that the 1st and 2nd Respondent's purported change of user and/or alleged building approvals and or permissions in respect of L.R. No. 209/1458/2 violate Article 10 of the Constitution on rule of law, public participation, integrity, transparency and accountability.*** 6. ***An order of permanent injunction be and is hereby issued restraining and/or stopping all development activities pursuant to the complained of application for development permission and change of user and/or any other covert permission or approval issued in respect of L.R. No. 209/1458/2.*** 7. ***An order be and is hereby issued, removing before this court and quashing all planning Permissions and/or approval plans, change of user or authority to carry out any works for the proposed developments issued by the Nairobi City County, County Executive Committee Member Planning or their agents in respect of the 12 floor 42 apartment multi-dwelling development on L.R. No. 209/1458/2.*** 8. ***An order be and is hereby issued prohibiting the Respondents from issuing any planning permission contrary to the developments in the area and contrary to the Physical and Land Use Planning Act, No 13 of 2019 and the existing zoning regulations, and that all the developments on L.R. No. 209/1458/2 be in line with the developments in the neighbourhood.*** 9. ***Any other orders and/or reliefs that the Court deems fit to issue.*** 10. ***Costs of the Petition.*** 11. ***Interest on cost from the date of judgment till payment in full.*** 12. The Petition is supported by the Affidavit of John Harun Mwau, the 2nd Petitioner of an even date. Mr. Mwau deponed that the 1st Petitioner is the registered owner of all that parcel of land known as L.R. No. 209/1458/3, which parcel adjoins the 3rd Respondent’s parcel of land registered as L.R. No. 209/1458/2 and that both properties are situated in a gated community consisting of single dwelling houses and maisonettes not exceeding one story and are contiguous to strategic installations such as the Chinese Embassy and the Kenya Defence Forces Headquarters. 13. He deposed that he has at all material times been the occupier of a single dwelling house erected by the 1st Petitioner and at the time of the construction thereof, the 2nd Respondent’s predecessor planned the area as a low-density residential area with all the buildings being limited to a maximum of one story. This restriction was on account of the area’s proximity to the Chinese Embassy and the Military backyard. 14. According to the Petitioners, since about the year 1987, successive persons who have acquired interests in L.R. No. 209/1458/2 have repeatedly attempted, through opaque and irregular means, to alter the use of the property in a manner inconsistent with the established zoning, character and physical attributes of the surrounding neighborhood. 15. It is the Petitioners’ case that the historical trajectory of the said parcel demonstrates a persistent pattern of attempts to convert a low-density residential plot into incompatible uses. The Petitioners explained that the previous owners, Vandex East Africa Limited, purchased the property when its approved user was a single dwelling residential house, but nonetheless applied by a letter dated 29th July 1987 to change the user from residential to professional office use, notwithstanding the accrued rights and legitimate expectations of neighbouring proprietors which was rejected vide the letter of 10th November, 1987. 16. Despite the rejection and the applicable planning restrictions limiting development to single residential buildings not exceeding one storey, it was deposed that Vandex East Africa Limited again applied on 4th August, 1988 to convert the property into offices under the guise of a consultancy use alleged not to interfere with residents or generate traffic and that the same was not granted but the property was subsequently used as an office within a residential area, prompting complaints by residents and regulatory enforcement action, including a notice issued under the Building By-Laws dated 28th December 1987. 17. It was deposed that a further application for change of user dated 4th August 1988 was again rejected by the 2nd Respondent by a letter dated 24th August 1988 and yet another of 25th June 1990 rejected by a letter dated 17th July 1990 and that in late 2006, Vandex E.A. Limited once more applied for change of user from residential to office use on the representation that no construction, redevelopment or increased traffic would arise. 18. According to the Petitioners, the director of Vandex E.A being at the time a former powerful permanent secretary at the Ministry of Finance exerted undue pressure and approval was granted on the condition that no new structures would be put up and the property would at all times comply with the approved zoning policy and that information regarding the status of the property was later confirmed by the planning authority’s predecessor through correspondence dated 19th July 2007. 19. At all material times prior to purchasing L.R. No. 209/1458/2 from Vandex E.A. Limited, the 3rd Respondent, it was deposed, Nova Realty Group Limited, was aware or ought reasonably to have been aware of the approved user and the conditions attached to the change of user granted on 1st March 2007, including that the property was to remain subject to the approved zoning policy; no redevelopment would be permitted on the land; and any permitted use was to be undertaken without altering the general physical character of the surrounding neighborhood, in recognition of longstanding objections by neighbouring residents. 20. Notwithstanding the foregoing restrictions, it was stated, the 3rd Respondent purported to alter the user of L.R. No. 209/1458/2 so as to permit the construction of a high-density development comprising a high density twelve-storey building with forty-two apartment units. 21. According to the deponent, on or about 11th January, 2022, a public participation /environmental assessment form was dropped at the Petitioners’ gate by EMC consultants acting on behalf of the 3rd Respondent, indicating an intention to construct residential apartments comprising basement and ground floor parking together with ten upper floors accommodating forty-two units on L.R. No. 209/1458/2. 22. The 2nd Petitioner deposed that the said form took him by surprise as no on-site notice had ever been erected on the property indicating any application for change of user or building plan approval, nor had any formal notice been served upon the Petitioners or neighbouring proprietors. 23. It was deposed that none of the Petitioners was furnished with copies of any change of user application despite the fact that the 1st Petitioner’s parcel directly adjoins the suit property, and inquiries among neighbouring residents confirmed that no affected persons had been notified. Further inquiries revealed that an application for change of user had already been made earlier on in late 2021. 24. It was contended that the proposed development, being a twelve-storey high-density structure on a plot of less than half an acre, threatens to infringe upon the Petitioners’ privacy, security and environmental rights, particularly given the proximity of the area to safeguarded installations of the National Defence Forces. 25. Aggrieved by the proposed development, the Petitioners lodged formal objections by a letter dated 14th January 2022 addressed to the County Executive Committee Member for Lands and Urban Planning, the County Secretary, the Director of Planning and the Nairobi Metropolitan Services, raising concerns *inter alia* that the 3rd Respondent would, upon the sale of the property leave the problems caused by the high-density development on the area residents and the Petitioners would have no recourse against them. 26. Also, it was averred, the high-density development would attract at least two parking lots for two vehicles per house, with the minimum number of cars foreseen being at least 84 cars on a tiny plot of less than half an acre and that this would cause huge traffic congestion on Lenana Road, which is a single lane road, not to mention air pollution, noise pollution and other hazardous wastes that would be risky to the neighbours and adjoining properties. 27. The 2nd Petitioner deposed that they noted vide their objections that change of user of the plot from a low density single residential unit to high density multi-dwelling units required provision of increased utilities in the area including increased sewerage capacity, water supply, increased/stepped up electricity and increased waste management, none of which was done. Consequently, he deponed, the high-density multiple storey multi-dwelling building would likely severely strain the existing utilities to a breaking point to the detriment, harm, loss and damage of the Petitioners and other area residents. 28. It was further contended that the proposed development would diminish the value and character of the surrounding neighbourhood by transforming what is presently a high-class, low-density residential enclave into a congested setting marked by irregular and inadequate provision of basic utilities. 29. The Petitioners expressed concern that, given the scale of the development on a relatively small plot within a gated community, any structural failure would expose neighbouring residents to grave risk and potential loss. 30. They also maintained that the erection of a towering twelve-storey structure would occasion a serious intrusion into the privacy and security of adjoining single-dwelling homes, as it would overlook neighbouring properties and increase the likelihood of objects falling or being thrown from upper balconies onto the Petitioners’ premises. 31. According to the Petitioners, vide a letter of14th January 2022, they requested the County Executive Member, Land and Urban Planning, the County Secretary, the Director of Planning and the Nairobi Metropolitan Services to provide to the Petitioners copies of all documents relating to development approvals granted, including: records of consultations between the Respondents and County officials; the addresses to which objection letters were sent; decisions made on the objections; and copies of approvals, minutes and zoning policy relied upon. 32. It was averred that the aforesaid letter elicited neither a response nor even an acknowledgment from the County Secretary, the Director of Planning or the Nairobi Metropolitan Services, notwithstanding that demolition works on L.R. No. 209/1458/2 commenced in early April 2022. Aggrieved by both the ongoing demolitions and the apparent silence from the relevant authorities, the Petitioners wrote a further letter dated 7th April 2022 raising concerns regarding alleged violations of **Articles 10** and **47** of the **Constitution,** including lack of transparency, accountability and fair administrative action. 33. The Petitioners contended that by a letter dated 17th May 2022, the Director General of the Nairobi Metropolitan Services confirmed that the building approval for the project had been submitted on 17th December, 2021 but was deferred upon evaluation as the following were missing: clearance from the Ministry of Defence due to close proximity of safeguarded areas, and aletter of no objection from neighbours and that they had legitimate expectation that the development permission would remain deferred pending clearance from the Ministry of Defence and service of the application to enable objections. 34. Despite the deferment, it was deposed, the 3rd Respondent continued development activities on L.R. No. 209/1458/2 without evidence of compliance. As a consequence, on 11th October, 2022, they wrote to the County Executive Member Finance, the County Secretary, and Director of Planning and Directorate of Criminal Investigations Nairobi County objecting to the development on grounds including; threats to security and environment; traffic congestion and waste management issues; infringement of privacy rights and strain on utilities. 35. It was stated that as a consequence of the 1st and 2nd Respondents’ failures to provide them with the relevant documents, the Petitioners subsequently filed Nairobi City County Physical and Land Use Planning Liaison Committee Appeal/Complaint No. NCCG/PLUPLC/014/22 dated 17th October 2022 and that despite the appeal complying with **Regulation 37** of the **Physical and Land Use Planning (Liaison Committees) Regulations, 2021**, the Liaison Committee refused to accept fees and failed to set down the appeal for hearing. As a consequence, the 3rd Respondents contention of their failure to exhaust alternative remedies cannot stand. 36. The deponent explained that the notice alleged to have been published as stated by the 3rd Respondent was not in the newspaper of 15th October, 2022 and that there was however in the newspaper of 15th October 2021, a misleading advertisement purporting that the user had changed from single dwelling to multi-dwelling apartments, whereas the approved change of user dated 01/03/2007 permitted professional offices with no redevelopment. 37. The Petitioners explained that being aggrieved by the Respondents’ failure to grant them access to the information sought, they wrote a further letter dated 31st October 2022 requesting disclosure and that they further wrote a letter dated 11th November, 2022 to the County Secretary, County Executive Member, Finance, Chief Officer, Urban Planning and Director of Planning requesting information regarding the approvals to enable them access justice. 38. According to the Petitioners, both they and the neighbouring property owners possess a legitimate expectation arising from longstanding representations and pre-conditional building approvals which restricted development within the area to single residential dwellings of not more than one floor and that there is no lawful justification for a company incorporated as recently as 21st April, 2021 to be accorded superior development rights capable of overriding the accrued rights of more than thirty existing property owners within the controlled development area. 39. The Petitioners further stated that the developer of the proposed project is Nova Realty Group Limited, said to be registered on 21st April 2021 with an address at Bruce House along Standard Street, but that attempts to physically trace the company’s offices and directors were unsuccessful. In their view, this raises concerns regarding accountability, particularly should structural defects arise or, in the worst-case scenario, should the building collapse, in which event they fear that the neighbouring residents would bear the consequences. 40. The Petitioners invoked the doctrine of legitimate expectation, arguing that administrative authorities cannot depart from prior approvals and representations that shaped the existing planning framework. They maintain that the project fails to align with the environmental character of the area, that public participation requirements under the Environmental Impact Assessment process were not observed, and that the impugned change of user violated **Articles 10, 31, 42,** **47, 48, 69** and **70** of the **Constitution** by being illegal, un procedural and unfair. **The 1st and 2nd Respondents’ response** 1. In response to the Petition, the 1st and 2nd Respondents and 5th Interested Party relied on the affidavit sworn by Wilfred Wanyoni Masinde, the Deputy Director Planning Compliance and Enforcement Department in the Built Environment and Urban Planning Sector dated 29th October, 2024. 2. Mr. Wilfred Wanyonyi Masinde deponed that the 2nd Respondent has various sectors mandated to run the county among them the sector for built environment and urban planning for which he is the designated county executive and that Vendex East Africa Limited, the 3rd Respondent’s predecessor in title made an application for development permission, change of user from single dwelling to multi-dwelling units and submitted planning briefs and building plans and made the requisite payments. 3. He deposed that an advert was lodged in the Daily Nation newspaper on 15th October, 2021 inviting the public for comments or objection on the 3rd Respondent’s application for change of user within 14 days from the day of publishing and that a notice was also placed on the site informing the neighbourhood of the proposed change of user. 4. He explained that on 16th November, 2021, the County Planning Committee held a technical planning meeting to discuss the development application whereupon the development application for change of user from single dwelling to multi-dwelling on L.R 209/10458/2 was duly approved and that the 3rd Respondent was issued with a construction permit invoice of Kshs 1, 733, 325 which was paid. 5. Further, it was deposed, on 7th April 2022, the Urban Planning Technical Committee convened to deliberate on various applications for development permission presented for approval; that during that meeting, the 3rd Respondent’s building plans for a proposed twelve-storey development comprising forty-two apartments on L.R No. 209/1458/2 were approved and that the 3rd Respondent had produced an EIA license from NEMA which has the mandate to carry out public participation. 6. Mr. Masinde further deposed that the Petitioners had lodged an objection to the proposed change of user, prompting Nairobi Metropolitan Services to write to the Petitioners’ advocates informing them that the 3rd Respondent’s development application had initially been deferred pending compliance. He pointed out that Kilimani area is zoned for apartment developments with a minimum plot size of 0.05 hectares, whereas the 3rd Respondent’s property measures approximately 0.3075 hectares. 7. He asserted that Nairobi City County does not itself conduct public participation at the stage of approving development permissions and contended that the Petitioners’ documents appearing at pages 216 to 297, relating to ELC No. 158 of 2019, are irrelevant to the present proceedings. 8. He maintained that both the change of user and the building plans were processed and approved in accordance with the applicable zoning policy. According to him, the 3rd Respondent submitted all requisite documentation, paid the prescribed fees and obtained the necessary approvals. He added that although the zoning policy was adopted in 2006, it has evolved alongside the growth of the city, with amendments being incorporated provided they remain consistent with the character of the area. **The 3rd Respondent’s response** 1. In response to the Petition, the 3rd Respondent, through its Director, Hassan Abdi Mohamed, swore a Replying Affidavit dated 22nd November 2022. He averred that following the conduct of due diligence, the 3rd Respondent lawfully acquired the suit property from Vandex East Africa Limited, executed a valid sale agreement, paid the agreed purchase price and was duly issued with a transfer of title. He maintained that, by virtue of **Section 26** of the **Land Registration Act**, the 3rd Respondent holds an indefeasible title to L.R. No. 209/1458/2. 2. Upon acquisition of the property, he stated, the 3rd Respondent engaged a registered physical planner who prepared and submitted a planning brief to Nairobi City County. Following the submission, the requisite invoices were raised and duly settled. He added that on 15th October 2021, the 3rd Respondent caused a newspaper advertisement to be published in a local daily, notifying members of the public of the proposed change of user from single dwelling residential to multi-dwelling residential development. 3. It is the 3rd Respondent’s case that the County Government of Nairobi deliberated upon the application at its meeting of 16th November, 2021 and approved the change of user and development permission, following which the 3rd Respondent obtained building plan approvals, paid construction permit fees evinced by a construction permit invoice, secured a hoarding licence dated 18th September, 2022 for 12 months, and obtained excavation permissions duly paid for in accordance with the applicable planning framework. 4. On environmental compliance, he averred that the 3rd Respondent commissioned an Environmental Impact Assessment (EIA) Report conducted by Environmental Management Consultancy (EMC), which included questionnaires and interviews with affected persons and that the majority of participants expressed no objection to the project; that on 14th January, 2022, NEMA acknowledged receipt of the EIA project report and subsequently issued an EIA licence on 10th February 2022 subject to conditions, thereby authorising implementation of the proposed development. 5. According to Mr Mohamed, as advised by Counsel, the Petitioners are guilty of material non-disclosure and had failed to exhaust the statutory dispute-resolution mechanism established under the Physical and Land Use Planning Act, 2019 rendering the Petition premature. 6. Finally, he averred that the Petitioners had engaged in acts of intimidation and undue pressure against public officers and the 3rd Respondent, and that the present proceedings were maliciously instituted to delay or derail the project. **The Petitioners’ further affidavit** 1. Vide the further affidavits sworn on 11th January, 2023 and 9th February, 2023 in response to the Respondents, the Petitioners reiterated the averments contained in the Petition and the supporting affidavit, and specifically challenged the veracity of the deposition by Hassan Abdi Mohamed in paragraph 1 of his affidavit, wherein he described himself as a director of Nova Realty Group Limited. 2. They contended that a search conducted at the Companies Registry revealed that the company had only three directors and shareholders, namely Abdulaziz Abdulah Nur (35 shares), Abdifatah Ali Hassan (35 shares), and Abdurahman W. Jama (30 shares), and that Mr. Hassan Abdi Mohamed was not among them. Further, that the onsite notice allegedly referenced was not annexed to the 3rd Respondent’s affidavit. 3. The Petitioners further observed that none of the individuals who purportedly executed the EIA public participation forms resided within the immediate vicinity of the proposed development, thereby calling into question the authenticity and integrity of the public participation process. 4. They urged that the 3rd Respondent, together with the 1st and 2nd Respondents, had approached the court with unclean hands, and that equitable relief ought to be denied to parties whose conduct demonstrates lack of candour and procedural impropriety. **The 2nd Interested Party’s response** 1. The 2nd Interested Party, through its Staff Officer II, Major Julius Meso, swore a Supplementary Affidavit dated 24th February 2025. He deponed that the Petitioner is the registered owner of L.R. No. 209/1458/3, which lies adjacent to L.R. No. 209/1458/2, the site earmarked for the proposed development. 2. Major Julius Meso deposed that according to the records available to him, the development had apparently been approved by the Nairobi City County Government (NCCG), authorising the construction of residential apartments comprising flats and duplex units, with a basement, ground-floor parking and floors from the 1st to the 10th level. Consequently, he stated that the approved development on L.R. No. 209/1458/2 rises to a total of twelve floors. 3. He explained that the proposed development site lies approximately 200 metres from the Defence Headquarters and about 950 metres from State House, Nairobi; that the 2nd Interested Party considers the project to fall within a “safeguarding area” as defined under **Section 2** of the **PLUPA,** given its close proximity to the Kenya Defence Forces Headquarters and State House and that for that reason, the development is subject to heightened regulatory scrutiny and strict development controls owing to national security considerations. 4. In that regard, he contended that the 1st and 2nd Respondents were under a statutory duty, pursuant to **Section 60(1)(h)** to forward a copy of the development application to the Ministry of Defence, since the suit property lies within a safeguarding area associated with the Ministry of Defence and State House. 5. Despite these requirements, he stated that the Ministry of Defence was never served with the application for approval of the building plans. He therefore maintained that any approval issued in respect of the development would have been granted contrary to the provisions of the law. **Submissions** 1. The Petitioners’ Counsel filed submissions on 24th February 2025. Counsel submitted that the question of whether the change of user, building approvals and NEMA license in respect of the impugned development were obtained in an unlawful and un procedural manner, and consequently threaten, violate or infringe on the Petitioners’ rights ought to be answered in the affirmative on the basis that the Respondents failed to comply with the statutory regime under the **PLUPA, 2019** and **EMCA**, and further acted in a manner inconsistent with the Petitioners’ constitutional entitlements. 2. On the **change of user,** it was submitted that the Petitioners’ case was that the Respondents could not lawfully approve a “change” from single dwelling to multi-dwelling when the parcel was already under a different user classification. 3. It was further submitted that the process violated **Articles 10(2)** and **47** of the **Constitution** because affected neighbours were not afforded an opportunity to participate or object. Also cited was **Section 55(1)(h)** and **Section 60(1) of PLUPA** requiring the County Executive Committee Member to circulate an application to relevant authorities/agencies for review and comment, including on national security in safeguarding areas and contended that there was no evidence of compliance, rendering the impugned change unlawful and procedurally unfair. 4. As regards **building plan approvals**, Counsel submitted that the Petitioners lodged an objection by a letter dated **14th January 2022,** issued reminders including on **7th April 2022**, and sought copies of approvals and minutes, but the 1st and 2nd Respondents allegedly failed to determine the objection, provide reasons, or furnish requested documents in breach of **Articles 47 and 48** of the **Constitution**. 5. It was submitted that the Petitioners have demonstrated that the approvals, if issued, were opaque and procedurally defective there being no indication as to whether the defects alluded to in the letter of **17th May 2022** had been rectified; that there was non-compliance with the **Physical and Land Use Planning (Classification of Strategic National or Inter-County Projects) Regulations, 2021,** and the **Physical and Land Use Planning (Development Control Around Strategic Installations) Regulations, 2021**, arguing that proximity to strategic installations required heightened procedural safeguards and inter-agency review under the PLUPA framework. 6. On the **NEMA EIA licence,** the Petitioners’ counsel submitted that the licensing process was a “sham” for want of lawful public participation and statutory publication. Counsel relied on **Regulation 17 of the Environmental (Impact Assessment and Audit) Regulations, 2013** **(public participation obligations, including publicizing the project, notices, and meetings)** and contended that there was no compliance through posters, newspaper notices, or public meetings. 7. Counsel further cited **Section 59 of EMCA** and argued that, given the timeline pleaded, (EIA report prepared on **12th January, 2022**, submitted on **14th January 2022**, and licence issued on **10th February 2022)** the statutory publication and comment process thereunder could not have been complied with. Counsel invoked **Articles 42 and 70** of the **Constitution,** submitting that non-compliance with statutory environmental procedures supports an inference of violation of the right to a clean and healthy environment. Reliance was placed on ***Ken Kasinga v Daniel Kiplagat Kirui & 5 Others****,* ***Nakuru ELC Constitutional Petition No. 50 of 2013.*** 8. On fair administrative action and access to justice, Counsel submitted that the Respondents’ refusal to supply key documents including applications, approvals and minutes, and their failure to give written reasons for their decision violated **Articles 47** and **48** of the **Constitution**, thereby frustrating the Petitioners’ ability to pursue statutory remedies. Reliance was placed on **Sections 78, 79** and **90** of the **PLUPA**, **and the Physical and Land Use Planning (Liaison Committees) Regulations, 2021,** which require parties to have copies of impugned decisions and minutes when lodging appeals. 9. Counsel averred that the proposed development, would infringe the Petitioners’ privacy protected under **Article 31**. Further, it was argued, consistent historical planning decisions and pre-conditional approvals created a **legitimate expectation** that development would remain within the low-rise parameters, and that any departure without due process and adequate reasons violates constitutional standards of legality, transparency, accountability and participation under **Article 10**, and procedural fairness under **Article 47**. 10. Counsel urged the court to grant the reliefs sought, including cancellation/quashing of the impugned approvals and restraint against the development. Counsel further relied on ***John Kabukuru Kibicho & another vs County Government of Nakuru & 2 others [2016] eKLR*** as authority for the court’s intervention where adjacent owners were not properly notified and environmental approvals were issued without due process. 11. The **1st and 2nd Respondents** and 5th Interested Party Counsel filed submissions on **14th March 2025.** Counsel submitted that Kilimani has, over three decades, transitioned into a mixed-use zone and that the older **Nairobi City Development Ordinances and Zones, 2004** are no longer adequate in light of constitutional and demographic realities. 12. Counsel cited ***Millennium Gardens Management Limited vs Metricon Home Nairobi Company Limited; Nairobi City County Government & 2 Others (Interested Parties) [2024] KEELC 6040 (KLR)*** to support the proposition that the 2004 zoning guidelines have been overtaken by modern planning realities, and that **NIUPLAN (2014)** and the **Nairobi City County Development Control Policy (2021)** are the operational guides for approvals. 13. Counsel submitted that the 3rd Respondent complied with the law by applying for change of user, issuing public notice through a newspaper advertisement dated 15th October 2021 and erection of a site signboard, noting that personal service upon neighbours is not a legal requirement. It was submitted that the County Planning Committee approved the application on 16th November, 2021 and permission was issued on 10th December 2021, which, according to counsel, rendered the process lawful and within the planning authority’s jurisdiction. 14. On the Petitioners’ reliance on the NMS letter dated 17th May 2022, which deferred approval pending Ministry of Defence clearance under **Section 60(1)(h)** and a letter of no objection under **Section 58(8)** of **PLUPA**, Counsel argued that the letter did not emanate from the County Planning Committee and could not override its decision of 16th November 2021, the Committee having become functus officio. 15. It was submitted that an EIA project report was lodged with NEMA on 14th January 2022 and an EIA licence issued on 10th February 2022 and that the Petitioners, despite being aware of the process, failed to challenge the licence before the National Environment Tribunal, contrary to the doctrine of exhaustion under EMCA. 16. Non-joinder of NEMA and failure to challenge approvals under the National Construction Authority Act was also raised by Counsel. Reliance was placed on ***Speaker of the National Assembly vs Karume [1992] KLR 21 and Republic vs National Environmental Management Authority, Civil Appeal No. 84 of 2010,*** to underscore that where statute provides a dispute-resolution mechanism, it must be strictly followed. 17. Counsel urged that Nairobi’s rapid population growth demands vertical expansion, and that the 2nd Respondent’s approvals reflect current urban realities and housing needs. Counsel cited the **Nairobi City County Development Control Policy (2021)** as permitting high-rise development (stating up to **15 floors in Kilimani**), while NIUPLAN (2014) evaluates proposals through broader planning variables rather than a fixed floor cap. Relying again on ***Millennium Gardens Management Limited vs Metricon Home Nairobi Company Limited; Nairobi City County Government & 2 Others (Interested Parties) [2024] KEELC 6040 (KLR)****,* he argued that the Petitioners had not demonstrated that the project violated NIUPLAN or the 2021 Policy. 18. Counsel for the 1st and 2nd Respondents characterized the Petitioners’ asserted security, environmental and foreign-relations concerns as speculative; insisted that an EIA was properly conducted with mitigation measures and stated utilities upgrades would be coordinated with providers and that denying the 3rd Respondent approvals which other developers in the area have obtained is discriminatory. 19. The 3rd Respondent’s Counsel filed submissions on 22nd December, 2025. Counsel submitted that the Petition does not meet the constitutional threshold, as set out in ***Anarita Karimi Njeru vs Republic [1979] KLR 154****,* and ***Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] eKLR***, where the courts underscored the necessity of clarity and specificity in constitutional pleadings. It was contended that the Petition lacked the requisite precision and merely invited the court to act as an appellate forum over administrative planning decision. 20. Counsel submitted that the 3rd Respondent fully complied with the statutory and constitutional framework governing change-of-user applications and that in accordance with **Sections 57** and **58** of the **PLUPA, 2019**, it issued both a newspaper advertisement and an on-site notice on 15th October 2021, notifying the public of the proposed conversion of L.R. No. 209/1458/2 from single-dwelling to multi-dwelling residential use and inviting objections within the prescribed fourteen-day period. It was argued that this process satisfied the requirements of public participation under **Article 10(2)** of the **Constitution** and **Section 115** of the **County Governments Act.** 21. Counsel further submitted that the County Planning Committee duly considered the application under **Section 59** of **PLUPA**, **2019** and approved the change of user on 16th November 2021, culminating in a Notification of Approval of Development Permission issued on 10th December, 2021. 22. Relying on ***British American Tobacco Kenya PLC vs Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another; Mastermind Tobacco Kenya Limited (2021),*** it was contended that adequate notice and opportunity for participation had been provided, and that no timely objections were lodged. The decision in ***Nzomo (Suing on behalf of Kunde Road Residents Welfare Association) vs Ontime Real Estate Limited & 2 others [2024] KEELC 6011 (KLR)*** was also cited to support the position that dissatisfaction alone does not invalidate a public participation process. 23. Counsel added that earlier change-of-user applications and the 2004 zoning guidelines relied upon by the Petitioners were outdated and irrelevant, submitting that each application must be assessed under the prevailing planning framework. Reliance was placed on ***Anami & 2 Others (Suing as Officials of Rhapta Road Residents Association) vs County Executive Committee Member (CECM) Built Environment and Urban Planning, Nairobi City County & 20 Others [2025] KEELC 128 (KLR)*** and ***Millennium Gardens Management Limited vs Metricon Home Nairobi Company Limited; Nairobi City County Government & 2 Others (Interested Parties) [2024] KEELC 6040 (KLR),*** where the court recognized the evolution of Nairobi’s planning policies beyond the 2004 guidelines. 24. On environmental compliance, Counsel submitted that the project adhered to the EMCA, noting that an EIA report had been prepared and approved. Counsel argued that any challenge to the EIA licence ought to have been lodged before the National Environment Tribunal pursuant to **Section 129** of **EMCA** and cited ***National Environment Tribunal vs Overlook Management Limited & 5 Others [2019] eKLR***on the appellate jurisdiction of the Tribunal. 25. Further reliance was placed on ***Kibos Distillers Limited & 4 Others vs Benson Ambuti Adega & 3 Others [2020] eKLR***, where the Court of Appeal held that environmental disputes relating to EIA licenses fall within the specialized jurisdiction of the Tribunal. 26. As regards contentions of opaqueness, reliance was placed on ***Kassan & 12 Others vs Shah & 16 Others [2025] KEELC 5354 (KLR)*** and ***Export Processing Zone Authority & 10 Others vs National Environment Management Authority & 3 Others [2024] KESC 75 (KLR)***to invoke the doctrine of presumption of regularity in administrative decision-making, arguing that planning approvals enjoy a presumption of legality unless cogent evidence demonstrates procedural impropriety. 27. The Petitioners’ Counsel filed further submissions dated 20th January 2026. Counsel reiterated the Petitioners’ assertions as regards the legitimacy of the development approvals and EIA license and further submitted that the 3rd Respondent’s Replying Affidavit sworn on 22nd November, 2022 by Hassan Abdi Mohamed is defective, lacking evidentiary foundation and authority, as the deponent is not a director of the 3rd Respondent as alleged. 28. It was further submitted that the Petitioners are not vexatious neighbours but adjoining landowners directly affected by the proposed twelve-storey development, which allegedly poses structural and environmental risks, including excavation impacts and vibration likely to affect neighbouring properties. 29. Counsel further addressed the doctrine of exhaustion, submitting that the Petitioners’ challenge was properly before the court notwithstanding **Section 9(2)** of the **Fair Administrative Action Act,** as exceptional circumstances existed. It was argued that the Liaison Committee process under **Sections 61(3)** and **61(4)** of the **PLUPA** had been frustrated and that the court had previously acknowledged this in its ruling of 8th June 2023, thereby bringing the matter within the exemption contemplated under **Section 9(4)** of the **Fair Administrative Action Act.** 30. In conclusion, counsel urged the court to find that the change of user, development approvals and EIA licence were obtained through misrepresentation, procedural impropriety and non-compliance with statutory provisions, and to allow the Petition with costs. **Analysis and Determination** 1. Having considered the Petition, responses and submissions, the issues that arise for determination are: 2. *Whether the 3rd Respondent has filed a competent response to the Petition?* 3. *Whether the Petition is competent?* 4. *Whether or not the development permissions and approvals with respect to L.R No. 209/1458/2 were issued lawfully and procedurally?* 5. *Whether the development permissions in respect of L.R. No. 209/1458/2 violate, deny, threaten and/or infringe on the Petitioners’ rights under Articles 10, 31, 42, 47, and 48 of the Constitution?* 6. *What are the appropriate remedies, if any?* **Whether the 3rd Respondent has filed a competent response to the Petition?** 1. The Petitioners contend that the 3rd Respondent’s Replying Affidavit is fatally defective for want of proper authority, having been sworn by Mr. Hassan Abdi Mohamed who described himself as a director of the company, despite not being a director of the 3rd Respondent. 2. In support of that contention, the Petitioners produced CR12 extracts relating to the 3rd Respondent, the most recent being dated 24th November, 2022. The said record indicates that, as at that date, the registered directors of the company were Abdulaziz Abdulah Nur, Abdifatah Ali Hassan, and Abdurahman W. Jama. 3. It is settled law that a company is a distinct legal person capable of suing and being sued in its own name, as established in ***Salomon v Salomon & Co. Ltd [1897] AC 22.*** Similarly, **Article 260** of the **Constitution** recognizes a company as a “person,” thereby affirming its capacity to participate in legal proceedings. However, it is equally trite that a corporate entity, being an artificial person, can only act through natural persons who are duly recognized or lawfully authorized to bind it. 4. Consequently, affidavits sworn on behalf of a company must be deponed by an officer, director, or other agent who demonstrates lawful authority, either by virtue of office or through a board resolution or other valid instrument of authorization. The purpose of the rule is to ensure that pleadings attributed to a corporate litigant are properly sanctioned and not the product of unauthorized individuals. 5. In the present case, the material placed before the court demonstrates that at the time the impugned Replying Affidavit was sworn, Mr. Hassan Abdi Mohamed was not a registered director of the 3rd Respondent, notwithstanding his express deposition to the contrary. 6. The CR12 produced by the Petitioners remains uncontroverted, and no evidence was tendered by the 3rd Respondent to rebut this assertion. The issue therefore transcends mere procedural technicality; it goes to the threshold question of who is the deponent, and by what legal capacity does he purport to act for the company. 7. Where authority to act on behalf of a corporation is specifically challenged, the evidentiary burden shifts to the deponent and/or company to demonstrate that the deponent is properly clothed with such authority. In the absence of any rebuttal or clarification by the 3rd Respondent, the court cannot presume that a stranger to the company’s directorship or management possesses the requisite *locus standi* to depone on its behalf. To hold otherwise would undermine the safeguards embedded in corporate litigation and the integrity of sworn evidence placed before the court. 8. Accordingly, the court finds that the Replying Affidavit sworn by Mr. Hassan Abdi Mohamed is incompetent and improperly before the court. The defect is substantive and not curable by **Article 159(2)(d)** of the **Constitution**, as it relates to the capacity of the deponent, rather than a mere procedural irregularity. The said Replying Affidavit is hereby struck out, with the consequence that the 3rd Respondent remains without a valid Replying Affidavit on record in response to the Petition. **Whether the Petition is competent?** 1. Vide their responses, the 1st and 2nd Respondents challenged the competency of the Petition by reason of the existence of alternative statutory dispute-resolution mechanisms. This court observes that the question was substantively addressed in its ruling of 8th June 2023. 2. With regard to breach of the exhaustion doctrine as regards the EIA license, the court notes that this objection was first raised by way of submissions and cannot lie. Nonetheless, no substantive relief has been sought in this Petition to impugn or set aside that EIA licence. Consequently, the argument premised on failure to exhaust remedies under the relevant environmental framework is misplaced and moot. **Whether or not the development permissions and approvals with respect to L.R No. 209/1458/2 were issued lawfully and procedurally?** 1. Vide the present Petition, the Petitioners seek declaratory, injunctive and prohibitory reliefs arising from what they describe as unlawful and unprocedural development approvals, issued in respect of the 3rd Respondent’s proposed development on L.R. No. 209/1458/2. They contend, *inter alia,* that the impugned change of user and building plan approvals were granted in breach of constitutional and the statutory provisions. 2. It is settled law that a party alleging violation of constitutional rights bears the obligation to plead such violation with precision. This principle was articulated in ***Anarita Karimi Njeru vs Republic (1979) KLR 154*** and has consistently guided constitutional adjudication in this jurisdiction. Further, the court is guided by the established principles governing the burden of proof under the law of evidence. 3. Pursuant to **Sections 107 (1)** and **(2)** of the **Evidence Act,** the obligation to prove a fact rests upon the party who asserts its existence and seeks the court’s determination on the basis of that assertion. Where a party bears the duty to establish a particular fact, the evidential burden lies squarely upon that party. 4. In elaboration of this principle, **Section 108** of the **Act** provides that the burden of proof in any suit or proceeding lies on the party who would fail if no evidence were adduced on either side. **Section 109** further clarifies that the burden of proving any specific fact rests with the person who wishes the court to accept its existence, save where the law expressly places that burden upon another party. 5. These evidentiary principles were affirmed by theSupreme Court in ***Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR,*** which emphasized that while **Article 22(1)** of the **Constitution** permits any person to institute proceedings for the enforcement of fundamental rights and freedoms, a litigant invoking that jurisdiction must clearly demonstrate the specific rights alleged to have been violated and the factual basis upon which the grievance is founded. 6. As earlier noted, the Petitioners’ grievance centers on the development permissions issued by the 1st and 2nd Respondents in favour of the 3rd Respondent, particularly the impugned change of user and building plan approvals. 7. While the parties made extensive submissions regarding the Environmental Impact Assessment licence, this court reiterates, as observed above, that the licence itself is not directly impugned in the present proceedings. The Petition seeks no specific relief aimed at setting aside the EIA licence, but rather, prays for the quashing of development permissions and approvals issued by the 1st and 2nd Respondents. The court does not act in vain and will therefore confine its determination strictly to the issues properly pleaded. 8. The Petitioners contend that the impugned approvals were unlawful and incapable of conferring legal rights, arguing that the property’s subsisting approved user had previously been changed to professional offices pursuant to an earlier approval allegedly prohibiting redevelopment. In the absence of a lawful reversion, it was argued, the subsequent change of user from single dwelling to multi-dwelling was founded on an erroneous premise, as no lawful reversion to single dwelling use had occurred. 9. Further, it was argued by the Petitioners that the approval process was procedurally flawed for want of meaningful public participation. Supported by the 2nd Interested Party, they maintain that the suit property lies within a safeguarding area due to its proximity, approximately 200 metres, from the Kenya Defence Forces Headquarters and about 950 metres from State House, Nairobi. 10. It is their case that neither the Petitioners nor other neighbouring proprietors, including KDF, were notified of the proposed development, and that the relevant authorities were not furnished with copies of the development permissions as contemplated under **Section 60** of the **PLUPA, 2019**. In particular, they contend that the 2nd Interested Party was not served with the requisite documentation as envisaged under **Section 60(h)** of the **Act.** 11. It is also the Petitioners’ case that there is no demonstrable evidence that the deficiencies identified in the letter dated 17th May 2022 including clearance from the Ministry of Defence and compliance with neighbour notification requirements were ever rectified prior to the issuance of the impugned approvals. 12. Conversely, 1st and 2nd Respondents and the 5th Interested Party, maintain that the change of user was processed in full compliance with the statutory framework. They submit that, pursuant to **Sections 57** and **58** of the **PLUPA, 2019**, a newspaper advertisement and on-site notice were issued on 15th October 2021, inviting objections within the prescribed fourteen-day period, and that public participation was further undertaken through project signage and Environmental Impact Assessment questionnaires administered to neighbouring residents. 13. It is their position that the approvals granted were lawful, regular and consistent with the applicable planning regime under the Physical and Land Use Planning Act, the Urban Areas and Cities Act, and the Environmental Management and Co-ordination Act. 14. Development is defined under the Physical and Land Use Planning Act (PLUPA) to include the carrying out of any works on land or the making of any material change in the use of any land or structures thereon. The scope of development control, as set out in the Third Schedule to PLUPA, is broad and encompasses, inter alia, change of user, extension of user, extension and renewal of leases, subdivision schemes, amalgamation proposals, and the approval of building plans. 15. **Section 57(1)** of **PLUPA, 2019** is categorical that no person shall carry out development within a county without development permission granted by the relevant County Executive Committee Member. **Subsection (2)** reinforces this requirement by providing that the undertaking of development without such permission constitutes an offence. 16. The procedural requirements governing the grant of development permission are set out under **Section 58** of **PLUPA, 2019.** An applicant is required to submit an application to the County Executive Committee Member in the prescribed form and upon payment of the prescribed fees, following which the application is subjected to statutory evaluation. 17. In the present matter, it is common ground that the 3rd Respondent obtained development permission on 10th December, 2021 following deliberations held on 16th November, 2021, authorizing a change of user from a single dwelling unit to multiple dwelling units (apartments). The Respondents contend that the approval was granted pursuant to the applicable zoning regime which is guided by NIUPLAN and the 2021 Nairobi City Development Control Policy noting that the 2004 zoning policy has since become obsolete. 18. The Petitioners have traced the planning history of L.R. No. 209/1458/2 from earlier approvals issued to the previous owner, Vandex East Africa Limited. The record shows that several applications for the change of user of the land were made in 1987, 1988 and 1990 seeking to convert the property from residential use to offices, all of which were rejected until the approval of 1st March, 2007 granting a change of user from residential to professional offices. That approval was subject to express conditions, the most pertinent being condition 7, to *wit*: **“*No redevelopment will be permitted.”*** 1. Flowing from that planning history, and notwithstanding the undisputed last known user of the property as professional offices, the impugned approval purports to effect a change of user from a “*single dwelling unit”* to *“multi-dwelling residential apartments”*. The 1st and 2nd Respondents have not demonstrated that there was any lawful reversion of the property from professional offices back to single residential use to justify the impugned subsequent change of user. 2. Rather, they have largely sidestepped this issue, relying solely on the assertion that the impugned approval was issued pursuant to the applicable zoning policy, without addressing the sequential planning requirements or the historical conditions previously attached to the land. 3. While this court has previously acknowledged, including in the ***Millennium Gardens case (supra),*** that earlier zoning instruments such as the 2004 framework may have become obsolete in light of evolving urban planning realities, the obsolescence of a zoning policy does not, as a matter of law, automatically alter the specific user rights attaching to a particular parcel of land. **Sections 57, 58** and **61** of the **PLUPA** as well as the principles under the preceding planning regime, require that any alteration of user be anchored in a clear and demonstrable planning process supported by formal approvals. 4. In planning law, each change of user constitutes a distinct regulatory step requiring its own procedural compliance. The absence of evidence showing the shift from professional offices to single dwelling creates a clear break in the planning chain. Consequently, it has not been established that the property lawfully reverted to single dwelling use prior to the approval for multiple dwelling apartments, nor that the sequential requirements of PLUPA and the historical conditions attached to the land were duly complied with. 5. Turning to the question of public participation, Under **Article 10** of the [Constitution](https://new.kenyalaw.org/akn/ke/act/2010/constitution), public participation is a fundamental principle of governance. **Article 69 (1) (d) of the Constitution** obligates the State, which includes the County Governments, to encourage public participation in the management, protection and conservation of the environment. **Article 47** of the [**Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution) makes reference to fair administrative action, meaning that the public is entitled to be informed of any administrative action that is likely to affect their rights. 6. These constitutional dictates are reinforced by the provisions of the Environment Management and Coordination Act, EMCA and the [Environment and Land Court Act](https://new.kenyalaw.org/akn/ke/act/2011/19), both of which require this court to be guided by the requirements for public participation in development of policies, plans and processes for the management of the environment. 7. The High Court in ***Robert N. Gakuru & Others vs. Governor Kiambu County & 3 Others [2014] eKLR*** while referring to the South African decision in ***Doctors for Life International vs. Speaker of the National Assembly & Others (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (cc); 2006(6) SA 416 (CC)*** adopted the following definition of public participation: *“****According to their plain and ordinary meaning, the words public involvement or public participation refers to the process by which the public participates in something. Facilitation of public involvement in the legislative process, therefore, means taking steps to ensure that the public participate in the legislative process. Public participation therefore refers to the processes of engaging the public or a representative sector while developing laws and formulating policies that affect them. The processes may take different forms. At times it may include consultations. The Black’s Law Dictionary 10th Edition defines ‘consultation’ as follows: - “The act of asking the advice or opinion of someone. A meeting in which* parties consult or confer.”** 1. **Section 55** of the **PLUPA** sets out, among the core objectives of development control, the promotion of public participation in physical and land use development decision-making. This statutory objective underscores the centrality of transparency, accountability and stakeholder engagement within the planning framework. 2. Consistent with that objective, **Sections 58(7)** and **(8)** of the **PLUPA** embed public participation as a mandatory component of the development permission process. The statute requires an applicant not only to notify the public of the proposed development in the prescribed manner, but also to invite objections and representations for consideration by the County Executive Committee Member. The obligation is twofold: first, to ensure adequate notice to affected persons, and second, to demonstrate that any feedback received is meaningfully considered before a decision is made. 3. The statutory framework is further reinforced by **Section 60** of **PLUPA,** which imposes a positive duty on the planning authority, within seven days of receiving an application, to circulate the proposal to relevant authorities or agencies for review and comment. 4. Further guidance on the manner of notification is provided under **Regulation 15(g)** and **(h)** of the **Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021,** which stipulate that applications for development permission shall be accompanied by: ***“(g) in case of change of user, extension of user, densification of use, extension of lease and renewal of lease, 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; and*** ***(h) where the application is for a change of user or extension of user, a caption of an on-site notice inviting comments from the members of the public in accordance with section 58(7) and (8).”*** 1. Apart from the above general guidance, PLUPA does not prescribe the precise modalities through which public participation is to be undertaken. Nonetheless, as explained in ***Nzomo (Suing on Behalf of Kunde Road Residents Welfare Association) v Ontime Real Estate Limited & 2 others (Environment & Land Petition E004 of 2023) [2024] KEELC 6011 (KLR) (19 August 2024) (Judgment),*** this does not dilute the requirement for public participation. 2. The court, while acknowledging that **Section 58** of **PLUPA** does not specify the manner of public participation, held, guided by the decision in ***British American Tobacco PLC v Cabinet Secretary for the Ministry of Health [2019] eKLR***, that the relevant parties bear a positive obligation to ensure that public participation meaningfully takes place. The court held as follows: *“****Thus, the applicability of public participation to section 58 of the Physical Land Use and Planning Act which governs the issuance of change of user license limited to advertising and placing of the notice on site was complied with for the general notification of the public. Generally, the decision-making authority/licensing body is not bound by the proposals received during such public participation but they are bound to give reasons/feedback.****”* 1. The 1st and 2nd Respondents are categorical that due process was followed including the publication of a notice of change of user in the newspaper on 15th October, 2021 as well as an onsite notice. The Petitioners deny this, only stating that they later on, saw in the newspaper of 15th October 2021, a misleading advertisement purporting that the user had changed from single dwelling to multi-dwelling apartments. However, they are categorical that there was no onsite notice. 2. The court notes that the alleged project board was not exhibited by way of a photograph. This lends considerable credence to the Petitioners’ assertion in this regard. It bears emphasis that the law requires, at a minimum, the erection of a project board at the development site so as to ensure that persons likely to be affected are adequately informed. 3. Equally, the planning brief asserts that “the change of user process requires that the general public be involved in the planning stage” and that several public participation measures were undertaken involving both the general public and adjacent neighbours. However, no satisfactory material was placed before the court to substantiate that those measures were in fact undertaken or complied with in the manner alleged. 4. More critically, the application relates to land situated within a *safeguarded area* in close proximity to Kenya Defence Forces headquarters’ installations (200 meters), a fact that is not disputed. In such circumstances, **Section 60(h)** of the **PLUPA** expressly requires circulation of the application to relevant agencies, including those concerned with national security. The 2nd Interested Party, the Ministry of Defence, maintains that it was never notified of the proposed development, a position that has not been controverted by the Respondents. 5. This position is reinforced by the letter issued by the Nairobi Metropolitan Services (NMS) dated 17th May, 2022, which confirmed that the application for approval of Building Plan No. CPF-AW875 had been deferred for lack of clearance from the Ministry of Defence and for failure to obtain a letter of no objection from neighbouring residents as required under **Section 58(8)** of **PLUPA**. 6. The court observes that the Respondents have not demonstrated that the deficiencies identified in the NMS letter dated 17th May 2022 were ever rectified prior to the issuance of development permission. Instead, the 1st and 2nd Respondents and the 5th Interested Party, rely on an internal memo dated 8th April 2022 indicating that the Urban Planning Technical Committee had approved the proposed development of 42 apartments on 12 floors on L.R. No. 209/1458/2. 7. When considered alongside the NMS correspondence, this sequence of events reveals a troubling lack of clarity in the approval process. Whereas the Committee is said to have approved the application on 7th April 2022, NMS formally communicated on 17th May, 2022 that the application remained pending for want of clearance from the Ministry of Defence and a letter of no objection from neighbouring residents. 8. This disconnect raises a material question as to whether the statutory prerequisites were in fact satisfied at the time the impugned approval was issued. No evidence was placed before the court to demonstrate compliance with the mandatory legal requirements identified in the NMS letter prior to the grant of approval. 9. The mere assertion that the letter did not emanate from the County Planning Committee, and therefore could not override its decision of 16th November 2021, does not sufficiently address the underlying concern of statutory compliance. It must also be emphasised that the doctrine of regularity cannot be invoked to sanitise a process where the evidentiary record discloses apparent non-compliance with express legal conditions. 10. Ultimately, it is the finding of the court that the development approvals cannot be said to have been issued lawfully, reasonably, or in conformity with the governing planning framework. **Whether the development permissions in respect of L.R. No. 209/1458/2 violate, deny, threaten and/or infringe on the Petitioners’ rights** 1. The Petitioners contend that the impugned development permissions were granted in violation of constitutional guarantees, particularly the national values under **Article 10,** the right to privacy under **Article 31**, the right to a clean and healthy environment under **Articles 42** and **70**, and the rights to fair administrative action and access to justice under **Articles 47** and **48** respectively. 2. It is now settled that planning decisions, although administrative in character, must be exercised within both the statutory framework under the Physical and Land Use Planning Act (PLUPA) and the broader constitutional order. 3. From the findings already made above, this court has determined that the approval process was marred by material procedural deficiencies. The cumulative effect of these omissions renders the decision-making process inconsistent with the national values of transparency, accountability and public participation enshrined under **Article 10(2)** and **69** **(1) (d)** of the **Constitution.** 4. **Article 47** of the **Constitution** requires that administrative action be lawful, reasonable and procedurally fair. The evidentiary record reveals that the Petitioners, through a series of letters dated 14th January 2022, 7th April 2022, 11th October 2022, 31st October 2022 and 11th November 2022, registered their objections as well as requested copies of approvals, minutes and relevant planning documentation with respect to the impugned development. 5. The only communication in response to the many letters by the Petitioners was a letter from NMS dated 7th May, 2022 acknowledging that the building plans had been deferred, followed by a response from Stephen Gathuita Mwangi dated 9th November 2022 directing the Petitioners to seek further information from the County Secretary. 6. Viewed cumulatively, these limited and inconclusive responses fell short of addressing the concerns raised and effectively hindered the Petitioners’ ability to interrogate or challenge the impugned approvals. In the court’s view, such conduct falls below the standard set by **Article 47** of the **Constitution**, which demands that administrative action be lawful, reasonable, transparent and procedurally fair. 7. Closely connected to the foregoing is the right of access to justice under **Article 48** of the **Constitution.** The statutory appeal framework under PLUPA presupposes that an aggrieved party has access to decisions, approvals and reasons. Where such information is withheld, the right of appeal becomes illusory. In this matter, the refusal or failure to furnish the Petitioner with the requested documents had the practical effect of frustrating the Petitioners’ ability to invoke the Liaison Committee process, thus implicating **Article 48.** 8. With regard to **Articles 42** of the **Constitution,** the court notes that environmental rights are preventive in nature, and may be enforced where there exists a real risk of harm arising from unlawful decision-making. The transformation of a historically low-density, safeguarded residential area into a high-density development, absent demonstrable compliance with statutory safeguards, poses a credible threat to environmental integrity. 9. As regards the right to privacy, it is noted that while the Petitioners express apprehension regarding overlooking, loss of seclusion and intrusion into a gated low-density environment, those concerns principally relate to the potential consequences of the development, rather than to the legality of the development permissions themselves. 10. Privacy rights under **Article 31** of the **Constitution** are engaged where there is demonstrable interference with a person’s private life, home or communications. In the absence of concrete evidence showing that the approvals, as administrative acts, sanctioned a specific and immediate intrusion into the Petitioners’ private sphere, the court is unable to find that **Article 31** has been violated on this ground. 11. The court is mindful that not every irregularity in planning administration amounts to a constitutional violation. However, in the present case, the cumulative effect of the procedural and statutory lapses found above renders the impugned approvals constitutionally infirm. The approvals were therefore undertaken in a manner inconsistent with **Articles 10, 47, 48** and **69** of the **Constitution** and posed a real threat to the Petitioners’ rights under **Articles 42**. **What are Appropriate reliefs?** 1. The Petitioners pray for declarations of illegality, orders quashing the approvals, a permanent injunction restraining further development, as well as costs. The court has found that that the Petitioners have ably demonstrated the breaches alleged entitling them to the prayers sought. 2. In the end, the Petition succeeds in the following terms: * 1. **A declaration be and is hereby issued that the 1st and 2nd Respondents' acts of refusing to provide copies of applications and supporting documents, copies of the minutes of the decision, copies of the change of user and building plan approvals and other documents duly requested concerning L.R. No. 209/1458/2 constitute a violation of the Petitioners' right to access to justice and right to fair administrative action.** 2. **A declaration be and is hereby issued that the 1st and 2nd Respondents’ purported change of user and/or alleged building approvals and or permissions in respect of L.R. No. 209/1458/2 are illegal, unprocedural and unreasonable.** 3. **A declaration be and is hereby issued that the 1st and 2nd Respondents’ purported change of user and/or alleged building approvals and/or permissions in respect of L.R. No. 209/1458/2 violate, deny, threaten and infringe on the Petitioners’ rights under Articles 42, 47, and 48 of the Constitution.** 4. **A declaration be and is hereby issued that the 1st and 2nd Respondents’ purported change of user and/or alleged building approvals and or permissions in respect of L.R. No. 209/1458/2 violate Article 10 of the Constitution on the rule of law, public participation, integrity, transparency and accountability.** 5. **An order of permanent injunction be and is hereby issued restraining and/or stopping all development activities pursuant to the complained of application for development permission and change of user and/or any other covert permission or approval issued in respect of L.R. No. 209/1458/2.** 6. **An order be and is hereby issued, removing before this court and quashing all planning permissions and/or approval plans, change of user or authority to carry out any works for the proposed developments issued by the Nairobi City County, County Executive Committee Member Planning or their agents in respect of the 12 floor 42 apartment multi-dwelling development on L.R. No. 209/1458/2.** 7. **The Respondents shall bear the costs of the Petition jointly and severally.** **Dated, signed and delivered virtually in Nairobi this 9th day of July, 2026.** **O. A. Angote** **Judge** **In the presence of:** Mr. Ouma for the Petitioners Mr. Adano for 3rd Respondent Mr. Allan Kamau for 1st and 2nd Interested Parties Mr. Mark Otieno for Okatch for the 3rd and 4th Interested Parties Court Assistant: Tracy