Malusha v Swaleh & another (Civil Appeal E051 of 2022) [2025] KECA 761 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that if a law gives you an appeal route, you must use it before going to court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in failing to find that the enforcement notice was null and void on the ground that it was issued under the repealed Physical Planning Act, 1996
- 2.Whether the learned Judge erred in dismissing the appellant's suit on the ground that it offended the doctrine of exhaustion of administrative remedies, and in failing to find that there were exceptional circumstances exempting the appellant from the obligation to exhaust such remedies
- 3.Whether the learned Judge dismissed the judicial review application purely on technicalities, thereby justifying the 1st respondent's alleged bias, ultra vires actions and non-compliance with the Act
Key legal issues
#Raising a new issue (invalidity of the enforcement notice under the repealed Physical Planning Act) for the first time on appeal
The ground fails. The issue was not raised in the pleadings, grounds or submissions before the ELC, so the learned Judge neither could nor did determine it, and it cannot be introduced on appeal.
Order 53 rule 4(1) of the Civil Procedure Rules confines a judicial review applicant to the grounds in the statement. Citing Kinyanjui Kamau v George Kamau Njoroge and Stallion Insurance Co Ltd v Ignazzio Messina & C S.p.A, the Court held that a court may decide an unpleaded issue only if it emerges and is fully canvassed at trial; otherwise an appellant cannot raise a new point on appeal without consent or very strong grounds, since doing so would prejudice the successful party.
Whether the judicial review application offended the doctrine of exhaustion of statutory remedies
The learned Judge was not at fault. The appellant was required by section 72(3) of the Physical and Land Use Planning Act to appeal to the County Physical and Land Use Planning Liaison Committee within fourteen days, and did not appeal or attempt to appeal, nor apply for exemption under section 9(4) of the Fair Administrative Action Act.
The enforcement notice was issued following the appellant's own complaint, a site inspection, and comparison with the approved 1994 building plan; it addressed non-compliance with the Act, not a boundary dispute. Section 9(2) of the FAA Act mandatorily bars judicial review before exhaustion. The alleged bias of the Liaison Committee was unsubstantiated by evidence and did not constitute exceptional circumstances. Authorities including Speaker of the National Assembly v Karume, Whitehorse Investments and Makupa Transit Shade support strict adherence to statutory appeal procedures.
Whether the judicial review application was dismissed on mere technicalities, and the effect of section 9(3) of the Fair Administrative Action Act
The dismissal was on a substantive point of law, not a technicality, and section 9(3) mandates the court to direct exhaustion or, appropriately, dismiss a premature application.
The exhaustion doctrine serves administrative autonomy, separation of powers, judicial economy and alternative dispute resolution, consistent with Article 159 of the Constitution. Section 9(3) contemplates fresh proceedings after exhaustion; sustaining a premature application would produce orders in vain. The alleged ultra vires actions and non-compliance with section 72(2)(a) should have been raised on appeal to the Liaison Committee.
Legal principles established
#- Where a statute prescribes a procedure for redress of a particular grievance, that procedure must be strictly followed and administrative remedies exhausted before judicial review, absent exceptional circumstances
- A party aggrieved by an enforcement notice under section 72 of the Physical and Land Use Planning Act must first appeal to the County Physical and Land Use Planning Liaison Committee within fourteen days before approaching the court
- Failure to exhaust alternative statutory remedies renders court proceedings futile absent exceptional circumstances warranting exemption under section 9(4) of the Fair Administrative Action Act, and an applicant must apply for such exemption
- A new point of law not pleaded or raised in the court below cannot be raised for the first time on appeal without consent or very strong grounds
- Section 9(3) of the Fair Administrative Action Act envisages that a premature judicial review application may be dismissed, since sustaining it would amount to issuing orders in vain
- The exhaustion doctrine is a substantive rule of law, not a mere procedural technicality, serving administrative autonomy, separation of powers, judicial economy and alternative dispute resolution
- Bias must be proved by evidence, not established merely by the seriousness of allegations, assessed objectively from the perspective of a fair-minded and informed observer
Court orders
#- 1.The appeal is dismissed
- 2.The Judgment and Decree of the ELC at Mombasa (N. A. Matheka, J.) delivered on 9th November 2021 is upheld
- 3.The appellant shall bear the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC JR Case No. 10 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court; appeal against the judgment in a judicial review application under Order 53 of the Civil Procedure Rules
Relief refused
#Allowance of the appeal and setting aside of the ELC judgment dismissing the judicial review application challenging the enforcement notice
The validity of the enforcement notice was not pleaded before the ELC and cannot be raised for the first time on appeal; the appellant failed to exhaust the statutory remedies under the Physical and Land Use Planning Act and the Fair Administrative Action Act; and the dismissal below was on a substantive point of law, not a technicality
Costs
The appellant shall bear the costs of the appeal (the ELC application having been dismissed with costs below).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
Its validity or invalidity was not pleaded or raised as an issue for determination by the ELC. Neither can it be raised for the first time on appeal to this Court.
no special circumstances were either pleaded or otherwise established as a matter of fact to warrant the appellant's departure from the statutory requirements for exhaustion of the requisite administrative remedies.
the appropriate manner of dealing with the premature application before the court would be to dismiss it. Sustaining the premature application without any legal basis would amount to issuing orders in vain.
we reach the inescapable conclusion that the appeal fails and is hereby dismissed. Consequently, the Judgment and Decree of the ELC at Mombasa (N. A. Matheka, J.) delivered on 9th November 2021 is hereby upheld.
Issues in the judgment
#The judgment cites the Physical and Land Use Planning Act as both 'Cap. 303' and 'No. 13 of 2019' in different passages, and refers to the repealed Physical Planning Act variously as 'No. 6 of 1996' and 'Cap. 286'.
The judgment states that section 72(3) requires an appeal to the Liaison Committee within fourteen days with the committee determining within thirty days, but earlier the ELC judgment is quoted saying the Committee 'shall hear and determine within 14 days'; the statutory text quoted by the Court itself says thirty days.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Malusha v Swaleh & another (Civil Appeal E051 of 2022) [2025] KECA 761 (KLR)", Case Analysis (2025). Civil Appeal at Mombasa (Memorandum of Appeal dated 3rd June 2022) arising from ELC JR Case No. 10 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/761/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.