The Malindi Environment and Lands Court has directed a petition seeking orders to stop the construction of a multi-million tall building in the Casuarina area near the beach to be heard by the National Environment  Management Authority (NEMA ) and National Environmental Tribunal (NET).

Justice Mwangi Njoroge while issuing the ruling, said the petition would not be struck out from the court and that it shall remain in limbo pending the determination by NEMA and  NET or any of the two bodies.

In the 15 page ruling issued online, Njoroge also extended the interim orders issued in the petition on November 5 2024 halting all works on the project.

“In the final analysis this court finds that the doctrine of exhaustion shall apply albeit in a limited fashion to this petition in that though the matters reserved by EMCA for determination by NEMA or NET shall be redirected to those two bodies, the petition shall not be wholly struck out but shall remain in limbo pending the determination by those two bodies or any or them, and the constitutional issues evident on the face thereof shall be saved for determination by this court after the proceedings before them are finalized,” he ordered.

The petitioner Rita Valentini, through her lawyer Dancun Nyongesa moved to court accusing Faryd of putting up a residential building of three floors and accused the Kilifi County government and NEMA of approving and issuing a license for the construction without following due process.

In the petition dated October 18 2024, she argued that the current development policy and zoning guidelines by the Kilifi County government designated the Casuarina area as a low-density residential area and only allowed the building of villas, townhouses, mansionettes and bungalows in the area.

She also argued that Shadia was constructing the four-storey building on the property without change of user approval from the Kilifi County government and without approvals from the National Construction Authority (NCA), approvals under the Physical Planning Act and an Environmental Impact License from NEMA.

“It is illegal and a danger to both the environment and the public and the structural integrity of such a structure is unknown. 

“The development and construction on the subject property is in breach and violation of inter alia, Articles 42 and 70 of the constitution 2010,” argued Mrs Rita.

Shadia is also accused of cutting down all trees on the plot without first obtaining procedural approvals from the Kilifi County government and NEMA who are listed as the second and third respondents respectively.

Valentini had prayed for the court to declare that her rights to a clean and healthy environment as guaranteed by article 42 of the constitution had been violated.

She also sought conservatory orders halting the construction by Shadia on parcel no 9643 and another one compelling the respondents jointly and severally to take measures to stop the development on the property.

“The basis of the plaintiff’s claim is that her plot neighbours the 1st respondent’s. The 1st respondent is constructing a three storey residential apartment block on LR NO 9643 right on the boundary wall next to her plot and being a high rise building, she is apprehensive that it would infringe on her privacy,” read part of the petition.

In response NEMA confirmed no EIA licence had been issued for the project, and issued a stop order.

The County Government that is a respondent, also visited the property and confirmed the project had no approvals and it also issued a stop order.

Written by Alphonce Gare, TV47 Correspondent