The Mombasa County government is in hot water for failing to set up the county's Physical and Land Use Planning Liaison Committee as required by law.
The Environment and Land Court has declared that the Mombasa County government and the Mombasa County Assembly Speaker have violated the Constitution by failing to establish the Liaison Committee as required by the Physical and Land Use Planning Act (Plupa).
Justice Lucas Naikuni ordered the county government and the speaker to establish the Liaison Committee within 90 days.
He ruled that the Liaison Committee was an important forum established to hear disputes on change of use in accordance with zoning policies and disputes on the environmental impact of developments approved by the county or a member of the county executive committee.
“Failure to have the committee put in place means that the county is indeed operating without the insight of a body created to advise them on land use policies and strategies in planning and to also aid in the legal process in terms of access to justice,” ruled Justice Naikuni.
The court also ordered the county government to take legislative and other measures to provide a framework to guide land development by defining the permissible standards of various land uses in different zones in the county within 180 days.
The orders followed a petition by 15 residents of Kizingo in Mombasa County challenging the county government and the speaker for allegedly failing to take legislative and other measures to provide a framework to guide land development in the county.
The residents argued that the respondents' failure to comply with the zoning regulations had resulted in development activities in Mombasa that disregarded environmental considerations and affected the natural resources of some areas.
Justice Naikuni further ordered the county government and the speaker to undertake public awareness on the Mombasa Integrated Strategic Urban Development Fund 2015-2035 through print, social, broadcast and digital media within the next 45 days.
At the same time, he found that the documentary evidence submitted by the petitioners did not show specific violations alleged in the petition.
The judge stated that he was not satisfied that the petitioners had provided sufficient and empirical evidence to demonstrate with precision the constitutional violations, the manner in which the violations occurred and the harm suffered.
He noted that the petitioners had alleged that the developments had infringed their right to privacy, but that the images did not show the petitioners' area of residence and did not show what activities were taking place that infringed the right to privacy.
“The issue of interference of the sewer and water system has simply been alluded to but not proved, no report from an expert in such a field has been presented before court for analysis of the same in relation to the alleged infringements of rights by the disputed developments,” ruled Justice Naikuni.
The court also noted that the petitioners had specifically stated that they were residents of the Kizingo area and that it was in this area that the county had violated the by-laws by allowing the development without the necessary conditions.
The residents argued that the county government had failed to comply with the Local Government (Adopted Laws) (Building) Regulations of 1968 in granting the building permits as they did not comply with the zoning regulations, thus necessitating the case.
The county government opposed the petition, arguing that it had promulgated the Mombasa Integrated Strategic Urban Development Plan 2015-2035, a policy framework that guides the development of land and sets out the use of permits, standards, regulations and policies in various areas under its jurisdiction.
It further argued that before any development application is considered, it (the application) is tested to assess its impact on existing social amenities, public utilities, transport and solid and liquid waste management facilities.
The county government further stated that it had expanded the existing infrastructure to accommodate the increase in population and housing.
