The High Court has issued interim orders stopping one issued by the county government requiring proprietors to repaint all buildings within the Central Business District (CBD) in blue and white.
Justice Eric Ogola on Thursday issued the orders after the county government failed to respond to an application by an aggrieved applicant, Best Lady Cosmetics shop in Mombasa.
The cosmetics shop made its application on July 4 and served the county government, but it did not appear in court to respond.
Through lawyer Samuel Kariuki, the cosmetic shop informed the court that it had its own branding colour countrywide, and that the Mombasa shops were not an exception.
“We have been in business for over 15 years and all the materials in shops trade in pink, which we use in all our branches,” it said in its application.
The cosmetic shop has branches in Nakuru, Bungoma, Kitale, Meru, Maua, Nyeri, Eldoret, Karatina, Kitui, Machakos, Kericho, among other towns.
Mr Kariuki said if the impugned notice was allowed to go through, it would greatly hamper the company's business.
He argued that Section 38 of the Physical Planning Act did not contemplate the colour of a property owned, but the existence of a physical development plan, which also helps in controlling development.
The petitioner was also worried that the county threatened and had indeed begun prosecuting owners of buildings who had not complied with the painting order.
“The impugned notice unjustifiably and unreasonably restricts and limits rights and fundamental freedoms of the petitioner,” said Kariuki.
He argued that the implementation of the impugned notice would deny the petitioner the right to use its long-term trademarks and branding, which would inevitably lead to loss of customers and business earnings.
The lawyer said the county chief officer did not have authority to make such orders, citing that it was made out of apparent misinterpretation of the law.
On March 10, the county government ordered that residential and commercial buildings in Mombasa’s CBD be repainted in blue and white.