Mombasa County Cracks Down on Unauthorized Developments

Mombasa County has launched a comprehensive enforcement operation targeting unauthorized developments that violate approved planning conditions and statutory requirements. This crackdown, spearheaded by the Department of Lands, Urban Planning, Housing and Serikali Mtaani, aims to restore compliance with planning laws, enhance public safety, and promote orderly urban development. The initiative is underpinned by key national legislation, including the Constitution of Kenya, the County Governments Act, and the Physical and Land Use Planning Act, which empower county governments to regulate development activities. Developers and property owners are urged to ensure full compliance to avoid severe penalties, including legal action and demolition of non-compliant structures, as the county seeks to address a rising trend of non-adherence to building regulations.

Mombasa County has initiated an immediate, county-wide enforcement operation aimed at curbing the proliferation of unauthorized developments. This decisive action targets ongoing construction projects that fail to adhere to approved planning conditions and other statutory requirements, a growing concern that poses significant risks to public safety, environmental integrity, and orderly urban development. The Department of Lands, Urban Planning, Housing and Serikali Mtaani has explicitly stated that the exercise seeks to restore compliance with established planning laws and foster a sustainable built environment for residents.

The crackdown comes amidst a noticeable increase in construction projects proceeding in violation of approved development conditions, often despite prior enforcement notices and warnings issued to developers and property owners. This trend has necessitated a robust response from the county government, which is leveraging its constitutional and statutory powers to ensure adherence to the rule of law in the construction sector. The County Executive Committee Member for Lands, Urban Planning, Housing and Serikali Mtaani, Mohamed Hussein, underscored that the operation is firmly rooted in the Constitution of Kenya 2010, the County Governments Act 2012, and the Physical and Land Use Planning Act 2019, all of which grant counties the authority to regulate development activities within their jurisdictions.

This article will delve into the legal framework empowering such enforcement actions, analyze the nature of the violations being targeted, and discuss the implications for developers, property owners, and the broader construction industry in Mombasa. It will highlight the multi-agency approach being adopted and the penalties for non-compliance, emphasizing the critical need for adherence to planning and building regulations to prevent structural failures and ensure sustainable urban growth.

The regulatory landscape governing physical planning and construction in Kenya is multi-layered, involving both national and county government mandates. The Constitution of Kenya, 2010, provides the foundational right to a clean and healthy environment and empowers the State to regulate land use in the interest of public safety, public order, public health, and land use planning. This constitutional mandate is operationalized through several key statutes. The Physical and Land Use Planning Act, No. 13 of 2019 (PLUPA), is the principal legislation governing land use planning, zoning requirements, and development control across Kenya. It repeals the earlier Physical Planning Act of 1996 and vests county governments with the primary responsibility for controlling land use and development within their areas of jurisdiction to ensure proper and orderly development.

Complementing PLUPA are the County Governments Act, No. 17 of 2012, which outlines the functions and responsibilities of county governments, including planning for the county and designating planning authorities. Section 104 of the County Governments Act mandates county governments to plan for their areas, integrating economic, physical, social, environmental, and spatial planning. Furthermore, the National Construction Authority Act, No. 41 of 2011, establishes the National Construction Authority (NCA) to oversee and regulate the construction industry, promoting quality control, setting standards, and registering contractors. The NCA is responsible for project registration and ensuring compliance with the National Building Code, 2024, which replaced the outdated 1968 regulations and introduces stricter safety measures and sustainable building practices.

Additionally, the Environmental Management and Coordination Act, No. 8 of 1999 (EMCA), and its subsidiary regulations, mandate environmental impact assessments (EIAs) for projects that may affect the environment, requiring NEMA approval before construction commences. For coastal areas like Mombasa, specific zoning regulations prioritize tourism, environmental protection, and port-related development, with strict enforcement of coastal setbacks and mandatory EIAs. These statutes collectively form a robust legal framework intended to guide and control development, ensuring safety, environmental sustainability, and planned urban growth.

The current enforcement operation in Mombasa highlights critical gaps in development control and compliance within Kenya's rapidly urbanizing landscape. A significant issue identified is the common practice of developers securing initial approvals for a certain number of floors but then illegally adding extra storeys without fresh structural assessments or approvals. This directly contravenes the Physical and Land Use Planning Act, which requires development permission for any change in land use or intensity, and the National Construction Authority Act, which mandates project registration and adherence to approved designs.

Such unauthorized modifications pose severe risks to public safety, as building foundations may not be designed to support additional loads, leading to structural instability and potential collapses. The NCA has previously flagged thousands of unsafe structures nationwide, with a significant number deemed very dangerous, underscoring the systemic nature of these violations. The Mombasa County government's action, supported by the NCA, is a necessary step to enforce the National Building Code 2024, which emphasizes stricter structural integrity checks and mandatory use of NCA-certified materials.

Another prevalent issue is the engagement of unregistered or unqualified contractors and consultants, or the changing of contractors after initial approvals, compromising safety standards. The NCA Act explicitly states that no person shall carry on the business of a contractor unless registered by the Board. Furthermore, projects require supervision by registered professionals, including architects and structural engineers, who are responsible for quality control and structural stability. The failure to adhere to these professional standards and regulatory requirements often results in shoddy workmanship, a major contributor to building failures.

The enforcement efforts also address non-compliance with environmental regulations, particularly the Environmental Management and Coordination Act, which requires NEMA approval for projects that may impact the environment. In coastal areas like Mombasa, environmental impact assessments are mandatory, and adherence to coastal setbacks is strictly enforced. Developers who proceed without NEMA approval risk stop orders, heavy penalties, and even demolition of their projects. The multi-agency approach, involving county officials and national bodies like the NCA, is crucial for effective enforcement, as it allows for a comprehensive review of compliance across various regulatory domains.

Case law in Kenya has consistently affirmed the powers of county governments and regulatory bodies to enforce planning and building regulations. For instance, the Commission on Administrative Justice (Ombudsman) has recommended prosecution of county officials for approving unlawful developments in contravention of the Physical and Land Use Planning Act, 2019, and local building by-laws, highlighting the accountability not only of developers but also of approving authorities. This underscores the legal imperative for all stakeholders to ensure strict adherence to the law throughout the development process.

The crackdown on unauthorized developments in Mombasa County signals a renewed commitment by authorities to uphold planning laws and safeguard public interest. For practising attorneys, this operation underscores the critical importance of conducting thorough due diligence for clients involved in real estate development. Lawyers must advise developers and property owners to meticulously verify that all necessary approvals, including county development permits, NCA project registrations, and NEMA environmental licenses, are obtained and strictly adhered to throughout the project lifecycle.

Practitioners should emphasize that non-compliance carries severe legal and financial repercussions, including project suspension, substantial fines, imprisonment, and the ultimate risk of demolition of non-compliant structures. Furthermore, the increasing scrutiny on the conduct of approving officials, as evidenced by recent recommendations for prosecution, highlights the need for transparency and integrity in the approval process. Legal professionals should guide clients on the importance of engaging registered and qualified contractors and consultants to ensure adherence to the National Building Code 2024 and other technical standards.

Moving forward, stakeholders in the construction industry should anticipate continued rigorous enforcement across Kenya, as national and county governments strive to create safer, more sustainable, and orderly urban environments. Attorneys should proactively engage with clients to review existing projects for compliance, rectify any identified deviations, and ensure future developments are meticulously planned and executed within the confines of the law. This proactive approach will mitigate legal risks and contribute to the responsible growth of Kenya's built environment.