Introduction
Changes in land use can affect not only property owners but also the communities surrounding a proposed development. For this reason, Kenyan law requires development applications to comply with prescribed planning procedures, including requirements for public participation. In Mwangi & 2 Others v Kiambu County Executive Committee Member for Land, Physical Planning, Housing and Urbanization & 2 Others; Kago (Interested Party) [2024] KEELC 5798 (KLR), the Environment and Land Court at Thika considered the legality of approvals granted for the establishment of a kindergarten and play school in a residential estate. The decision addresses the requirements for public notification and the limits of the powers exercised by county planning authorities.
Background of the Case
The dispute concerned land parcel LR No. 8468/62 in Kisiwa West Estate. Markerryl Company Limited obtained approval on 8 May 2023 to change the property’s use from a single residential dwelling to educational use for a kindergarten and play school. A construction permit was subsequently issued on 21 September 2023.
David Maina Mwangi, Bernadette Wambui Karari and Celestine Wanjiru Ngure, acting on behalf of the Kisiwa West Estate Residents Welfare Group, challenged the approvals. They argued that the statutory requirements for notifying the public had not been met. Their concerns included deficiencies in the notice displayed at the proposed development site and the manner in which the application had been reconsidered by the county authorities.
The matter proceeded before the Kiambu County Physical and Land Use Planning Liaison Committee, which delivered its decision on 8 December 2023. The residents subsequently appealed to the Environment and Land Court, challenging the legality of the approvals and the decision-making process.
Issues for Determination
The main issues before the court were:
- Whether the change of user approval and construction permit complied with section 58(7) of the Physical and Land Use Planning Act, 2019, read together with rule 16 of the Physical and Land Use Planning (General Development Permission and Control) Regulations, 2021.
- Whether the approvals complied with the constitutional requirements for public participation under Article 10(2)(a) of the Constitution and section 115 of the County Governments Act.
- Whether the County Executive Committee Member had jurisdiction to entertain an appeal against a decision made in relation to the same development application.
Court’s Analysis
Public Notification and Statutory Compliance
The court examined the notice displayed at the proposed development site against the requirements of section 58(7) of the Physical and Land Use Planning Act, 2019, and rule 16 of the applicable Regulations. The residents challenged the notice for lacking essential details, including a date, the name of the registered physical planner and information on how objections could be submitted.
The court found that the notice did not meet the prescribed legal requirements. It consequently held that the change of user approval and construction permit had been granted in violation of section 58(7) of the Act, read together with rule 16 of the Regulations.
The finding is significant because public notification is part of the legal process for obtaining development permission. A notice must satisfy the applicable requirements; merely displaying one at the site does not, on its own, establish compliance.
Public Participation
The court also considered Article 10(2)(a) of the Constitution, which recognises public participation as a national value and principle of governance, together with section 115 of the County Governments Act.
It found that the required public participation had not been undertaken following the lodging of the purported appeal. The court therefore held that the impugned development approval and construction permit violated Article 10(2)(a) of the Constitution, read together with section 115 of the County Governments Act.
The decision demonstrates that compliance with planning procedures involves more than obtaining the relevant permits. The prescribed process must also give affected members of the public a meaningful opportunity to participate in decisions concerning proposed developments.
Jurisdiction of the County Executive Committee Member
The court further examined how the development application had been reconsidered. The application had initially been considered and rejected. Instead of appealing to the appropriate County Physical and Land Use Planning Liaison Committee, Markerryl Company Limited lodged an appeal with the County Executive Committee Member.
The court held that the official had acted without jurisdiction by purporting to exercise appellate powers over a decision made in relation to the same application. This was contrary to section 61(3) of the Physical and Land Use Planning Act, 2019, which provides for the applicable statutory appeal mechanism.
The finding reinforces the requirement that public officials exercise only the powers conferred upon them by law. Where legislation provides a specific avenue for challenging a decision, that procedure must be followed.
Significance of the Decision in Kenya
The decision provides useful guidance on the requirements governing changes of user and development permissions. It highlights the need for developers to comply with statutory notification procedures and for county planning authorities to ensure that the approval process meets the applicable legal standards.
It also clarifies that administrative authority has limits. County officials must act within their statutory mandate and follow the prescribed appeal procedures rather than assume powers that the law does not confer upon them.
For residents, the judgment illustrates the legal avenues available to challenge development approvals where the prescribed procedures have not been followed. For developers and county authorities, it demonstrates why compliance must be established throughout the approval process, rather than treated as a formality.
Conclusion
In Mwangi & 2 Others v Kiambu County Executive Committee Member for Land, Physical Planning, Housing and Urbanization & 2 Others; Kago (Interested Party) [2024] KEELC 5798 (KLR), the Environment and Land Court allowed the appeal, set aside the Liaison Committee’s decision of 8 December 2023 and revoked the change of user approval and construction permit. Each party was ordered to bear its own costs.
The judgment reinforces the importance of lawful development control, adequate public notification and compliance with statutory appeal procedures. It confirms that development approvals must be supported by a process that meets the requirements of the law.