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Court of AppealDismissedCourt of Appeal Appeal (not numbered in judgment)· [2015] KECA 469 (KLR)

Mutanga Tea & Coffee Company Ltd v Shikara Ltd & another (Civil Appeal 54 of 2014) [2015] KECA 469 (KLR)

Court of Appeal of Kenya
31 July 2015
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
4,633 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that where a law sets out a specific dispute process, you must use it before going to the High Court.

What this practically means

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Executive summary

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The Court of Appeal at Malindi (Asike-Makhandia, Ouko and M'inoti, JJA) dismissed an appeal against a ruling of Okwengu, J. dated 12th July 2012, which had struck out Mutanga Tea & Coffee Company Ltd's High Court suit challenging change of user and development permissions granted to Shikara Ltd under the Physical Planning Act and EMCA. The central question was whether a party aggrieved by decisions of the Director of Physical Planning or NEMA may invoke the High Court's original jurisdiction instead of the dispute resolution mechanisms prescribed under those statutes. The Court held that it may not. Both Acts contain elaborate mechanisms - Physical Planning Liaison Committees and the National Physical Planning Liaison Committee under the PPA, and the National Environment Tribunal under EMCA - with appeals ultimately lying to the High Court. Relying on Speaker of National Assembly v Karume and Article 159(2)(c), the Court extended the Karume principle from procedure to forum: an aggrieved party must first resort to a statutorily prescribed dispute resolution mechanism before invoking the High Court's original jurisdiction under Article 165(3)(a). An adjacent owner not served under section 41(3) of the PPA is still an 'aggrieved person' who must use the statutory mechanism. Non-compliance is not a mere technicality curable under Article 159(2)(d). The preliminary objection was properly taken on a point of jurisdiction, and the objection to the competence of the appeal for omission of the notice of preliminary objection failed, leave having been granted to file a supplementary record. The High Court decision was affirmed and the appeal dismissed with costs to the respondents.

Key legal issues

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01

Whether the High Court's original jurisdiction may be invoked in disregard of statutory dispute resolution mechanisms

Holding

It may not; where a statute prescribes a dispute resolution mechanism, the aggrieved party must exhaust it before going to the High Court, whose jurisdiction in such matters is appellate.

Reasoning

The PPA and EMCA both provide elaborate first-instance and appellate mechanisms culminating in appeals to the High Court. Article 159(2)(c) obliges courts to promote alternative dispute resolution, so usurping such mechanisms would undermine a constitutional objective. The Karume principle on strictly following prescribed procedures applies equally to correct forum as to correct procedure. Expert, expeditious and cost-effective resolution by statutory tribunals further supports exhaustion.

p. 7
02

Whether the preliminary objection was properly taken on disputed facts

Holding

Yes; the cut and dry issue was one of jurisdiction and there was no dispute that the appellant had not invoked the prescribed mechanisms.

Reasoning

Following Raytheon Aircraft Credit Corp, a preliminary objection may consist of a point of law, including whether a court has jurisdiction to try the suit. Whatever factual disputes existed, it was undisputed that the grievances arose under the PPA and EMCA and that the appellant had not invoked the prescribed dispute resolution mechanisms, so the objection was properly taken.

p. 5
03

Whether non-compliance with the prescribed mechanism is a mere technicality curable under Article 159(2)(d)

Holding

It is not; the statutory mechanisms are constitutionally underpinned and cannot be bypassed as a technicality.

Reasoning

Relying on Raila Odinga v IEBC, the Constitution must be read as a whole and Article 159(2)(d) cannot oust other clear provisions. Per Lemanken Aramat, Article 159(2)(d) cures only procedural lapses with no bearing on jurisdiction; where vital conditions are linked to adjudicatory power, it has no application.

p. 8
04

Whether the learned judge erred in deferring to the Environment and Land Court before its establishment

Holding

The argument is a red herring; the High Court held the appellant's recourse was first to the statutory tribunals, so the ELC's non-establishment was irrelevant.

Reasoning

The High Court's ruling was that a party aggrieved by a NEMA decision had recourse first to the National Environment Tribunal and thereafter on appeal to the Environment and Land Court. Since the appellant had not invoked the prescribed mechanism, no valid first-instance proceedings existed that could have been preserved or transferred, so the establishment question did not arise.

p. 6

Legal principles established

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  • Where a specific dispute resolution mechanism is prescribed by the Constitution or a statute, an aggrieved party must resort to that mechanism first before invoking the inherent or original jurisdiction of the High Court.
  • An aggrieved person under the Physical Planning Act includes an adjacent owner not served with an application for change of user, and such a person must use the statutory dispute resolution mechanism rather than the High Court's original jurisdiction.
  • Failure to comply with statutorily prescribed dispute resolution mechanisms underpinned by Article 159(2)(c) is not a mere technicality curable under Article 159(2)(d).
  • The unlimited original jurisdiction of the High Court under Article 165(3)(a) must be construed in a way that accommodates alternative dispute resolution mechanisms.

Court orders

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  1. 1.Dismissal of the 1st respondent's contention that the appeal was incompetent for omission of the notice of preliminary objection
  2. 2.Dismissal of the appeal with costs to the respondents

Authorities

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Legislation

  • Physical Planning Actcap 286 (PPA)
  • Physical Planning Actsection 33
  • Physical Planning Actsection 41(3)
  • Physical Planning Actsection 29
  • Physical Planning Actsection 30 and 30(3)
  • Physical Planning Actsection 38(2)
  • Physical Planning Actsection 8
  • Physical Planning Actsection 15(4)
  • Environmental Management and Coordination Actcap 387 (EMCA)
  • Environmental Management and Coordination Actsection 58 and Second Schedule
  • Environmental Management and Coordination Actsection 31
  • Environmental Management and Coordination Actsection 129(2)
  • Environmental Management and Coordination Actsection 130
  • Transition to Devolved Government Actcap 265A
  • County Government ActNo 17 of 2012
  • Local Government Actrepealed
  • Limitation of Actions Actreferred to in Raytheon extract
  • Capital Markets ActCapital Markets Appeals Tribunal
  • Environment (Impact Assessment and Audit) Regulations2003
  • Court of Appeal Rulesrule 87(1)
  • Constitution of Kenya 2010Article 165(3), 165(3)(a), 159, 159(2)(c), 159(2)(d), 162(2)

Cases cited (9)

  • Speaker of National Assembly v Karume
    [1992] KLR 21
  • Narok County Council v Transmara County Council & Another
    CA No 25 of 2000
  • Raytheon Aircraft Credit Corp. & Another v Air Alfaraj Ltd.
    CA No. 326 of 1998
  • Kones v Republic & Another Ex Parte Kimani Wa Nyoike & 4 others
    (2008) 3 KLR (ER) 296
  • Rich Productions Ltd. v Kenya Pipeline Company & Another
    Petition No. 173 of 2014
  • Republic v The National Environmental Management Authority
    CA No. 84 of 2010
  • Vania Investment Pool Ltd. v Capital Markets Authority & 8 Others
    CA No. 92 of 2014
  • Raila Odinga & 5 others v. IEBC & 3 others
    Petition No. 5 of 2013
  • Lemanken Aramat v Harun Maitamei Lempaka
    Petition No. 5 of 2014
On appeal from
High Court of Kenya
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act and Appellate Jurisdiction Act over the High Court ruling of 12th July 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mutanga Tea & Coffee Company Ltd v Shikara Ltd & another (Civil Appeal 54 of 2014) [2015] KECA 469 (KLR)", Case Analysis (2015). Court of Appeal Appeal (not numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/469/eng@2015-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.