Mombasa County Government is at a crossroads, it has to make a tough decision on whether to demolish a mosque built on public land, as ordered by the court, or buy an alternative parcel for the construction of a public school.
The mosque, which sits on land earmarked for a school at Mwembelegeza in Nyali, is at the centre of the stalemate.
The conflict has escalated to a point where county officials, who failed to act on the court’s directive, risk being arrested.
Mombasa residents have filed contempt of court proceedings against county officials and the National Environment Management Authority (Nema), accusing them of disobeying the order to bring down the mosque.
Residents said that the mosque was built illegally on the public utility land in Mwembelegeza Scheme, which was reserved for the development of a nursery school.
Through Ainea Ragen, the residents say they have been forced to seek legal action after the officials failed to comply with a court order issued in the Environment and Land Court (ELC) Petition No. 35 of 2020, in which the court ruled in favour of the community.
"After the judgment in ELC Petition No. 35 of 2020 was delivered, a decree was issued and served upon the respondents. However, they have failed to comply, despite having the constitutional and statutory obligations to do so. Hence, this application," stated Mr Ragen in court documents.
The residents filed a case against County Secretary Jeizan Faruk, Executive Committee Member for Lands, Planning and Housing Mohamed Hussein, chief officer for the department Mariam Mapenzi,County Director of Inspectorate Said Guleid and Nema Director-General Mamo Boru.
The court has directed that the documents be supplied to the respondents for an interparties hearing before any further orders are issued.
The Mombasa County Government has argued that demolishing the mosque may lead to religious tension in the area.
Residents at the location where a mosque was demolished at Mwembelegeza in Nyali Constituency on September 10, 2020.
Photo credit: File| Nation Media Group
Nema Director of Enforcement Dr Ayub Macharia said his team visited the property following the court order issued in October 2023 and prepared a detailed report explaining their position on the matter.
He said that he had written a letter seeking to mobilise Nema’s resources to remove the structures on the property and restore the land to its original state.
The county—through its Director of Physical Planning, Paul Manyala—argues that the devolved unit has been grappling with the potential repercussions of executing the court orders, including the long-term effects of religious animosity.
“As the devolved unit in charge of ensuring peace and religious tolerance in Mombasa, the county is in a precarious position. We have not coordinated with Nema on executing the decree,” said Mr Manyala. He further argued that the county should be given time to identify an alternative site for the nursery school.
Court documents indicate that following the 2023 ruling, the county sought to resolve the matter out of court after their preliminary objection was dismissed.
Mr Ragen said that the county has not responded to the community’s demand for a commitment to buy an alternative plot of similar size within the same area for the nursery school, nor have they agreed to pay Sh915,000 as the cost of the case.
“The initial case was filed by the community, not a religious body. The suit property was grabbed by individuals claiming to represent a religious organisation, with the county offering protection. Denying the community a nursery school under the guise of preventing religious conflict would be an affront to the Constitution and the law,” he said.
But the county maintains that its failure to implement the decree stems from the need to maintain peace, given the sensitive nature of the issue and the potential for violence if the mosque is demolished.
Officials said that their willingness to find alternative land for the nursery school demonstrates commitment to complying with the court decree.
In the judgment delivered on May 3, 2023, the court ordered that the developments on the land be removed and the land restored to its original condition within 90 days.
Justice Stephen Kibunja, who heard the application for enforcement of the judgement , expressed concern that the judgment in favour of the community has not been appealed or reviewed—yet it remains unenforced.
“Court orders are not made in vain. It was the responsibility of the parties and agencies involved to obey them. While NEMA has shown preparedness to comply through documentation and correspondences, the county has done nothing,” observed the judge.
He emphasized that the community has a legal right to expect enforcement of the judgment, as it is only through implementation that they can enjoy the benefits of the court's decision.
Justice Kibunja dismissed the county’s argument that implementing the order could incite religious tension and animosity as a "red herring" not based on factual evidence.
The court also found that the county failed to ensure that the developers of the mosque and accompanying shopping facilities obtained written consent from the registered landowner before approving the building plans.
Further, the court observed that there was no documentary evidence provided by the county, Kwa Bullo Mosque Committee, or Al Nubal Charity Organisation to demonstrate that the mosque’s proponents held or were entitled to any legal interest over the plot at the time the plans were submitted or approved.
The judge concluded that the approval of the mosque's building plans by the county was unprocedural.
“Had all the required permits been obtained, and the only issue was whether the development should be on land reserved for a nursery school, the court could have considered directing the developers to purchase an alternative plot for the school. Unfortunately, a construction carried out without proper approvals cannot receive the court’s blessings to remain on public utility land,” he said.
The judge reaffirmed that all persons, including religious institutions and community members, are equal before the law.
“The position taken by the county appears to favor the mosque and shopping complex developers, contrary to the May 3, 2023, court orders. The county's stance not only goes against the law but also seeks to absolve the developers without due process,” said Justice Kibunja.
