James Kamau & 7 others v County Government of Kiambu [2019] KEELC 2661 (KLR)
The bottom line
#The Environment and Land Court ruled that shop owners can sue Kiambu County directly over demolition notices, without first going through statutory appeals.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice raised a true preliminary objection
The objection, being a challenge to jurisdiction, met the Mukisa Biscuits description of a preliminary objection
Applying the Mukisa Biscuits test, the court held that jurisdiction is a point of law which, if decided against the court, requires it to down its tools and end the matter at the preliminary stage, without ascertaining facts from outside the pleadings. The objection therefore qualified as a proper preliminary objection and had to be determined first.
Whether the Plaintiffs were obliged to exhaust the appeal mechanism under the Physical Planning Act
The exhaustion argument failed because the Plaintiffs were not challenging a decision of the Director of Physical Planning and had made no application attracting such an appeal
The Defendant contended that any person aggrieved by a decision of the Director must first appeal to the Liaison Committee under the Physical Planning Act. The court found the Plaintiffs were instead challenging the County Government's enforcement notices issued on 18th December 2018 directing removal of structures, and had made no application to the Director which could found an appeal. The dispute concerned the legality of a county administrative decision, over which the court has original jurisdiction under Section 13 of the Environment and Land Court Act.
Whether the court should preserve the status quo pending trial
The court invoked its inherent powers and Rule 32 of the ELC Practice Directions to order maintenance of the status quo
Relying on Section 3A of the Civil Procedure Act and Rule 32 of the ELC Practice Directions, the court held it had inherent powers to make orders necessary to meet the ends of justice and prevent abuse of process. Noting its duty under Sections 1A and 1B to facilitate the just, expeditious and proportionate determination of matters, it directed that interlocutory applications be disposed of and the main suit proceed, with the status quo maintained pending hearing.
Legal principles established
#- A preliminary objection consists of a point of law which, if argued as a preliminary point, may dispose of the suit
- Where a court finds it has no jurisdiction, it must down its tools and bring the matter to an end at the preliminary stage
- The Environment and Land Court has original jurisdiction over cases dealing with the legality of administrative decisions made by a County Government
Court orders
#- 1.The Notice of Preliminary Objection is dismissed entirely with costs to the Plaintiffs
- 2.Status quo to be maintained: the Defendant is restrained from encroaching, interfering with or demolishing structures built on Kahawa Sukari, Plots No.3113, 297, 3114, 1194, 3096, 295, 3132 and LR.No.3/536 pending the hearing and determination of the suit
- 3.Plaintiffs to take out summons within 14 days and serve upon the Defendant
- 4.Defendant to file its Defence within 14 days after service; Plaintiffs to Reply within 7 days
- 5.Parties to comply with Order 11 of the Civil Procedure Rules within 30 days after close of pleadings, and a date to be taken for Pre-trial Directions before the Deputy Registrar
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Rule 32 of the Environment & Land Court Practice Directions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kamau & 7 others v County Government of Kiambu [2019] KEELC 2661 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2661/eng@2019-06-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.