Mombasa county sued over failure to set up land planning disputes committee

Mombasa County Lands CEC Mohamed Hussein (Amadoh) sued for failure to constitute the PLUPLC Liaison Committee. [Courtesy]

 Mombasa County has been sued for failure to constitute a Physical and Lands Use Planning Liaison Committee to handle land and development related disputes.

The Mombasa Law Society (MLS) sued Mombasa County and County Executive Committee Member for Lands, Urban Planning and Housing, Mohamed Hussein (Amadoh) for failure to constitute the Committee as required under Section 76 and 77 of the Physical and Land Use Planning Act 2019.

In a petition filed by MLS through its lawyer Willis Oluga, the County and Amadoh have been accused of prejudicing its residents through the absence of the Liaison Committee.

In the petition, the National Lands Commission (NLC), National Construction Authority (NCA), Kenya Institute of Planners, Architectural Association of Kenya, Institute of Surveyors of Kenya, Law Society of Kenya and Titus Ithinji were cited as Interested Parties to the petition.

MLS Chair Natasha Errey said that the persons aggrieved by decisions made within the County’s Physical and Land Use Planning framework have no effective statutory forum where they can pursue for remedy.

Errey told Justice Bellinda Akello that the failure to constitute the Liaison Committee has continued to affect Mombasa residents, property owners, developers and members of the public who seek access to a statutory dispute resolution mechanism.

She said that Mombasa County is obligated to establish the Liaison Committee pursuant to Section 76 and 77 of the Physical and Lands Use Planning Act 2019.

Errey said that Mombasa County has deliberately, persistently and without lawful justification refused to constitute the said Liaison Committee, a fact that has created a legal and administrative vacuum in the County in respect of the statutory dispute resolution mechanism.

“With Mombasa County’s growing population, the expanding economy and large-scale infrastructure developments, it is important that the legal framework for the land use and planning is fully implemented to facilitate the enjoyment by the constituents, of the rights and remedies available under the Physical Land Use and Planning Act 2019 (PlUPA),” said Errey.

She said that despite Mombasa County priding itself as the first County to launch E-construction permits in 2015, automating the application and review procedures for processing construction permits, inspection and occupancy certificates, it is amongst the few counties yet to constitute and operationalize PLUPA.

The MLS Chair said the issue requires an urgent judicial intervention to operationalize the Liaison Committee.

MLS Chair said failure to constitute the Liaison Committee has created a unnecessary legal vacuum and increased the cost of access o justice to persons aggrieved by Amadoh’s various decisions at the County Physical Planning Department.

She accused Amadoh of abdicating his duty as a state officer to assist the state to efficaciously regulate the use of any land or any interest in or right over any land, in the interest of defense, public safety, public order, public morality, public health or land use planning under Article 66(1) of the constitution 2010.

“The 2nd respondent (Amadoh’s) failure infringes upon Mombasa Constituents and property owner’s rights by failing to constitute a quasi-judicial body whose key role is to advise on 2nd respondent on broad physical and land use planning policies and standards that would improve governance and foster implementation of policies that benefit th public in the built environment on Mombasa County,” said Errey.

She said that in December 10 2024, Amadoh wrote to the LSK requesting for four qualified lawyers from MLS to fill the post of Liaison Committee.

MLS proceeded to nominate Titus Ithinji as the qualified candidate out of the eight applicants and forwarded his name to LSK who also nominated him as the Chairperson for the Liaison Committee on March 21 2025.

However, on April 10 2025, Mombasa County rejected Ithinji as the Chair of the Liaison Committee alleging they wanted four names.

LSK responded by advising the County that the Society was mandated to nominate only one advocate to serve and Chair of Liaison Committee.

“The request for the submission of four qualified advocates, two male and two females for their consideration is not in line with the statutory provision,” read LSK response to Mombasa County.

Errey said that the decision to reject Ithinji’s nomination is unlawful, citing him as an advocate of good standing, ordinarily practicing in Mombasa.

She said that Article 66(1) of the constitution 2010, parliament enacted PLUPA to make provision for the planning, use, regulation and development of land and for connected purposes.

Justice Akello admitted the petition, admitting it raised matters of public interest touching n non-constitution of the Mombasa County PLUPA Liaison Committee and the attendant absence of a statutory dispute resolution forum for residents, developers and members of the public.

“On that account and without certifying the application urgent, the court considers it appropriate that this matter be accorded accelerated case management including the shortened timelines and early mention date set out below, so as to secure its expeditious progress without undue adjournment,” aid Justice Akello.

Errey said that the PLUPA Liaison Committee should be headed by an advocate of the high court as the chair, a representative of the NLC and NCA.

Also, the Liaison Committee should have registered physical planner, architect, surveyor both nominated by their respective institution bodies and have a seven years post qualification experience.

 The Committee is to have a male and female member nominated from the Chambers of Commerce.

Errey applied for the constitution of Mombasa County PLUPA Liaison Committee and orders to have Ithinji appointed Chair as nominated by LSK.

She also applied to have other members from the relevant bodies appointed to the Liaison Committee.

The MLS Chair said that after the lapse of 60 days, Ithinji and other members shall assume office and the court to direct Amadoh to facilitate a secretariat, facilities, funds, personnel, offices, registry, court room, premises, office equipment, internet and communication facilities.

Errey said failure to comply with the court orders to operationalize the Liaison Committee and swear in Ithinji and his members, Amadoh or any other CEC holding office to pay sh250,000 per month the breach exists.

The Liaison Committee hears and determines complaints and claims made in respect to applications submitted to the planning authority in the county.

It also hears appeals against decisions made by the planning authority with respect to physical and land use development plans in the county, and appeals with respect to enforcement notices.

The Liaison Committee is expected to advise the County Executive Committee Member (Amadoh) on broad physical and land use planning policies, strategies and standards. 

She said Amadoh’s decision to call for four names is not founded on any statutory framework or constitutional provision.