The Commission on Administrative Justice (Office of the Ombudsman) has recommended that the Director of Public Prosecutions initiate legal proceedings against five county officials, including former County Executive Committee Member Stephen Mwangi, for approving unlawful development in contravention of the Physical and Land Use Planning Act, 2019.

The investigation centered on a dispute between Coldstone Investment Limited and Khaleej Towers Limited over a development in Eastleigh that allegedly violated planning, zoning, and building regulations.

In a decision announced Friday, the Ombudsman ordered Nairobi City County Government and Khaleej Towers Limited to jointly pay Kshs 22,533,379 in damages to Coldstone Investment Limited within one month, including Kshs 20 million in general damages and Kshs 2,533,379 in special damages.

The special damages cover quantifiable losses including reconstruction of a demolished boundary wall (Kshs 1,886,711), roof and gutter repairs (Kshs 220,165), and structural engineer fees (Kshs 141,503).

The investigation revealed what the Commission described as a pattern of regulatory failures that not only infringed on the rights of neighboring property owners but also eroded public confidence in the credibility of Nairobi City County’s development control processes.

According to the report, the approvals were marred by multiple violations. One key issue was premature approval: the approval letter was issued on August 30, 2023, even before formal deliberations on August 31 and the final ratification on September 14, 2023.

The report also highlighted non-compliance with setback requirements. Bedroom windows failed to meet the mandated 2.4-meter setback, while sitting rooms and balconies did not adhere to the required 6-meter setback.

Weak enforcement further compounded the problem, as construction continued unabated despite the issuance of an enforcement notice, plan revocation, and a stop order.

Finally, the report pointed to systemic failures within the Nairobi Planning and Development Management System, which allowed applications to progress even when technical objections remained unresolved.

The DPP has been urged to initiate legal proceedings against several officials involved in the matter. The individuals named include Mr. Stephen Mwangi, former CECM for Built Environment and Urban Planning; Mr. Patrick Analo, Chief Officer, Urban Planning; Mr. Fredrick Ochanda, Assistant Director, Development Control; Mr. Simon Omondi, Development Control Officer; and Mr. Tom Achar, Director of Planning, Compliance, and Enforcement

The County Assembly has also been directed to initiate removal proceedings against Mr. Mwangi for “gross misconduct, dereliction of duty, and breach of public trust.”

The investigation uncovered deep-seated problems in Nairobi’s development control system.

The Commission found that development control officers self-assign applications without oversight, reducing accountability, and that applications can advance despite unresolved technical objections, allowing incomplete or non-compliant submissions to progress.

Perhaps most troubling, the report revealed that multi-disciplinary technical review is often circumvented, with critical departments such as Roads, Survey, Public Health, and Fire Safety not consulted.

Site inspections also identified multiple nearby properties in violation of planning regulations, including exceeding permitted building heights, ignoring mandatory setbacks, installing windows and balconies that compromise privacy, and constructing directly to plot boundaries.

A key issue in the dispute was Khaleej Towers Limited’s claim of a public sewer wayleave running between the properties.

However, the investigation definitively established that the sewer line runs exclusively within Coldstone’s property and that a sewer wayleave does not convert private land into public land, nor create a development buffer.

The Commission found that the presumed existence of a public wayleave could not lawfully justify construction by Khaleej Towers Limited up to the boundary line, the omission of prescribed setbacks, or the installation of windows opening directly onto the adjoining property.

The Ombudsman has also recommended that the Ethics and Anti-Corruption Commission investigate “the circumstances surrounding the premature issuance of the approval letter (DC8) dated 30 August 2023 for PLUPA-BPM-022413-Q, which was issued before formal deliberation by the UPTC on 31 August 2023 and final ratification by the County Executive Committee Member (CECM) on 14 September 2023, with a view to establishing whether the officers involved engaged in corrupt conduct.”

Beyond punitive measures, the Commission has called for comprehensive institutional reforms.

These include the reconstitution of the Urban Planning Technical Committee to ensure balanced representation, and the reconfiguration of the Nairobi Planning and Development Management System to prevent self-assignment and block approvals with unresolved objections.

The Commission also recommends mandatory multi-disciplinary technical reviews before granting approvals, activation of the enforcement module for effective post-approval monitoring, and the tracking and restriction of repeat offenders among architects and engineers.

The County Assembly has been directed to fast-track development of the Nairobi City County Development Control Policy “ensuring alignment with the Physical and Land Use Planning Act, 2019.”

Professional regulatory bodies BORAQS and EBK have been directed to investigate and discipline professionals submitting non-compliant plans, with specific action recommended against Rayplan Architects for “misrepresentation of infrastructure information.”

All named entities have been given one month to report progress on implementation of the recommendations to the Commission.

The Governor Johnson Sakaja has been specifically directed to ensure the Khaleej Towers building complies with statutory setback requirements, including blocking windows and balconies that overlook Coldstone’s property.

Commission Chairperson Charles Dulo, EBS, signed the report, which represents one of the most comprehensive indictments of Nairobi’s planning and development approval system in recent years.

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The matter has now been referred to Chief Justice Martha Koome for the empanelment of a multi-judge bench to hear and determine the complex petition.

The referral came from Justice Bahati Mwamuye, who noted that the issues raised in the petition are of such constitutional significance that they cannot be addressed by a single judge.

“Since the respondents, the eight judges and the JSC, have not objected, I find that the petition raises serious constitutional issues under Article 165 of the Constitution and is referred to the Chief Justice to appoint an uneven number of judges to hear and determine it,” Justice Mwamuye ruled on Wednesday November 226,2025.

The petition, spanning 230 pages, names Supreme Court Justices Mohamed Ibrahim, Njoki Ndung’u, and Isaac Lenaola, and Court of Appeal Justices Milton Makhandia, Kathurima M’Inoti, Sankale Ole Kantai, Francis Tuiyott, and John Mativo.

It claims the judges relied on a non-existent 1992 consent decree to uphold the sale of the Kiambu farm by Kenya Commercial Bank (KCB).

“No consent was ever signed or recorded on May 4, 1992, yet the eight judges who handled the dispute have consistently treated it as a valid decree, allowing the sale of our 443-acre coffee farm,”states the petition.

The dispute dates back over 30 years. Benjoh Amalgamated Limited and Muiri Coffee Estate Limited, which together owned and secured the land, had challenged KCB’s move to exercise its power of sale.

While a 1997 High Court ruling found that no consent existed, a 1998 appellate bench overturned the decision. Subsequent benches, including those led by the current judges named in the petition, reaffirmed KCB’s position, culminating in the sale of the land.

Lawyer Nelson Havi, representing the petitioners, says the case goes beyond property loss to test the limits of judicial immunity under Article 160 of the Constitution.

“Judicial immunity is intended to protect judges acting in good faith, but it cannot extend to manifestly illegal or unconstitutional acts. Our clients have lost valuable land based on a decree that does not exist,”Havi argued in court papers.

The petition also accuses the JSC of failing to investigate complaints submitted between October 2024 and August 2025, dismissing them without explanation.

“The JSC’s refusal to probe these allegations or disclose the judges’ responses undermines constitutional oversight,”the petition states.

Central to the case is whether judges who act in bad faith or rely on non-existent orders can still claim immunity, a question that could have sweeping implications for judicial accountability in Kenya.

The petitioners are seeking declarations invalidating the 1992 consent decree, confirming that their constitutional rights to property and a fair hearing were violated, and clarifying whether judicial immunity shields unlawful judicial acts.

The case, which now sits with CJ Martha Koome, is expected to be closely watched by legal practitioners, civil society, and property owners, as it could redefine the scope of accountability for judges and oversight mechanisms of the Judiciary in Kenya.

“Our clients’ experience illustrates a broader problem where judicial decisions can lead to irreversible harm without recourse. This case seeks to ensure that judicial power is exercised responsibly and within the law,” Havi added.

With the petition now referred to the Chief Justice for bench formation, the stage is set for a legal showdown that could reshape the understanding of judicial protection and citizens’ rights under the Constitution.

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