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ELCDismissedPetition dated 4th March, 2019· [2019] KEELC 269 (KLR)

Francis Munuve Kasyi v County Government of Mombasa & another [2019] KEELC 269 (KLR)

Environment and Land Court
4 December 2019
CYC.K. Yano
3,171 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A property owner who sued Mombasa County over a delayed building permit lost because he skipped the statutory appeal route first.

What this practically means

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Executive summary

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The Petitioner, registered proprietor of PLOT TITLE MSA/BLOCK XXVI/351 in Mombasa County, applied on 24th July 2018 through his architect for approval of building plans for a proposed development of 50 three-bedroom units via the County Government of Mombasa's e-construction permit portal. He paid a permit fee of approximately Kshs. 801,995.00 and received an application number. When the plans were not approved for over six months despite follow-ups and a demand letter dated 8th February 2019, he filed a constitutional petition seeking declarations that the Respondents were bound by Chapter Six and Article 47 of the Constitution, that his rights to fair administrative action and economic rights under Article 43 were breached, an order of mandamus compelling issuance of a building permit, and damages of Kshs. 5,000,000.00. The Respondents, through a replying affidavit sworn by the 2nd Respondent Edward Dzilla Nyale, admitted the application and payment but asserted the development was major and required additional documents - a traffic management plan, geotechnical report, waste water management system and design calculations - which the Petitioner had not provided, all communicated through the e-portal. They argued the court lacked jurisdiction, as Section 13(1) of the Physical Planning Act provides an appeal to the Liaison Committee. The court framed three issues, finding it had no jurisdiction because the Petitioner had not exhausted the statutory appeal mechanisms under the Physical Planning Act and Section 9(2) of the Fair Administrative Action Act, and the application was premature as no decision had been made. The court also declined to expunge the Respondents' late replying affidavit, citing Article 159(2)(d). The petition was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the court has jurisdiction over the petition given the statutory appeal mechanism under Section 13(1) of the Physical Planning Act and Section 9(2) of the Fair Administrative Action Act

Holding

The court lacks jurisdiction because the Petitioner did not exhaust the statutory appeal to the Liaison Committee, and the application was premature as no final decision had been made

Reasoning

Section 13(1) of the Physical Planning Act provides an appeal to the Liaison Committee for any person aggrieved by a decision of the Director, and Section 9(2) of the Fair Administrative Action Act bars judicial review before internal mechanisms and remedies under other written law are exhausted. The court found the Petitioner's grievance fell squarely within these statutory mechanisms, which were not utilised, and that no decision refusing the permit had actually been made, rendering the petition premature.

p. 4
02

Whether the Petitioner's constitutional rights under Articles 47 and 43 were violated

Holding

Not determined on the merits because the petition failed for want of jurisdiction

Reasoning

Since the court found it lacked jurisdiction at this stage and that the Petitioner had not exhausted the statutory remedies nor complied with the outstanding requirements, the constitutional claims under Articles 47 and 43 were not adjudicated. The Respondents' position was that the delay was caused by the Petitioner's failure to supply additional information such as a traffic management plan and geotechnical report through the e-portal.

p. 4
03

Whether the Respondents' replying affidavit filed out of time should be expunged

Holding

The affidavit was deemed properly on record in line with Article 159(2)(d) on procedural technicalities

Reasoning

The Petitioner sought expungement of the replying affidavit and annexure EDN 2 for being filed outside court timelines. The court invoked the constitutional directive that justice be administered without undue regard to procedural technicalities and exercised its discretion to admit the affidavit, considering it in reaching the decision.

p. 4

Legal principles established

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  • Where a statute provides a specific grievance redress mechanism, it must be strictly adhered to before resort to court
  • A litigant must exhaust the alternative statutory mechanism provided under the Physical Planning Act before engaging the court

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Chapter Six; Article 73(1)(a)(ii), 73(1)(a)(iii), 73(1)(a)(iv), 73(1)(b), 73(2)(b), 73(2)(d); Article 35; Article 43; Article 47; Article 23; Article 159(2)(d)
  • Physical Planning ActSections 13(1), 15(1) and (4), 31, 32, 38
  • Fair Administrative Action ActSections 7, 8, 9(2)

Cases cited (9)

  • Judicial Service Commission –v- Mbalu Mutava & Another
    (2015) eKLR
  • Republic-v- Retirement Benefit Authority Ex Parte Moses O. Odingo & 5 Others
    (2018) eKLR
  • Kenya Human Rights Commission & Another –v- Non-Governmental Organizations Coordination Board & Another
    (2018) eKLR
  • Multiple Hauliers East Africa Limited –v- Attorney General & 10 Others
    (2013) eKLR
  • Republic –v- National Environmental Management Authority, Civil Appeal No.84 of 2010
    (2010) eKLR
  • Director of Planning & Architecture, County Government of Mombasa –v- Makupa Transit Shade Limited
    (2019) eKLR
  • Ndiara Enterprises Ltd –v- Nairobi City County Government
    (2018) eKLR
  • Mwangaza Humanitarian Assistance –v- National Environmental Management Authority & Another
    (2013) eKLR
  • Speaker of the National Assembly –v- Njenga Karume
    (1990-1994) EA 546
Jurisdiction invoked
Constitution of Kenya, 2010 (constitutional petition under Articles 23, 47 and 43); challenge based on Physical Planning Act and Fair Administrative Action Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Francis Munuve Kasyi v County Government of Mombasa & another [2019] KEELC 269 (KLR)", Case Analysis (2019). Petition dated 4th March, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/269/eng@2019-12-04

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