Erik Sunde & another v City Council of Nairobi & 3 others [2016] KEELC 1242 (KLR)
The bottom line
#The Environment and Land Court dismissed neighbours' challenge to a Nairobi development approval because they skipped the mandatory appeal process under the Physical Planning Act.
What this practically means
#Executive summary
#Key legal issues
#Compliance of the development approvals with the Constitution, the Physical Planning Act and the Zonal Regulations
The court did not reach the merits; the Petitioners' failure to exhaust the statutory appeal route under sections 13(1) and 15(1) and (4) of the Physical Planning Act robbed them of a right of audience.
The Physical Planning Act provides a tiered appeal mechanism: an aggrieved person must appeal the Director's decision to the liaison committee within sixty days, then to the National Liaison Committee, and only thereafter to the High Court under section 15(4). The Petitioners never lodged any such appeal and came directly to court, bypassing the prescribed procedure, which the court held disentitled them from being heard on the validity of the Development Approval.
Permanent injunction restraining non-compliant construction
Refused; it follows from the finding on issue 1 that the Petitioners are not entitled to it.
Since the Petitioners lacked a right of audience on the validity of the Development Approval, the substantive complaint underlying the claim for a permanent injunction could not be entertained, and the relief sought against the Second, Third and Fourth Respondents necessarily fails.
Alleged encroachment and trespass on the Petitioners' Property
Not proved; the development is entirely within the Suit Property.
The Petitioners' own surveyor found the apartments entirely within the cadastral boundary of the Suit Property, though one stood 15cm to 35cm from the borderline. The court-consented survey by the Provincial Surveyor attributed the discrepancy to an extended wall and concluded there was no encroachment between the two plots. On this concurrence of survey evidence, the claim of encroachment or risk of encroachment failed.
Damages for trespass and/or encroachment
No damages may issue as there is no trespass or encroachment.
This head of relief was wholly dependent on the finding on encroachment. Having found, on the two survey reports, that the construction does not encroach into the Petitioners' Property, the court held that no damages could issue against the Second and Third Respondents.
Costs of the Petition
Costs awarded to the Respondents.
Following the dismissal of the Petition, the normal rule that costs follow the event applied, and the court awarded costs to the Respondents.
Legal principles established
#- A party aggrieved by a decision of the Director concerning physical development must exhaust the statutory appeal machinery in the Physical Planning Act (Liaison Committee, then National Liaison Committee) before coming to the High Court; failure to do so deprives the party of a right of audience before the court.
- A party alleging encroachment bears the burden of proving it; where survey reports establish that the construction lies entirely within the confines of the developer's plot, no encroachment is made out and no damages for trespass can issue.
Court orders
#- 1.The Petition is dismissed with costs to the Respondents
- Jurisdiction invoked
- Constitution of Kenya, 2010 - petition alleging infringement of Articles 35, 40, 42, 47, 69 and 70; subject to statutory appeal machinery in sections 13(1) and 15(1) and (4) of the Physical Planning Act (Cap 286)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erik Sunde & another v City Council of Nairobi & 3 others [2016] KEELC 1242 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1242/eng@2016-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.