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ELCStruck OutNot stated in judgment (Environment and Land Court, Thika)· [2020] KEELC 467 (KLR)

Angela Mbugua & 4 others v KO Holdings Limited & 2 others [2020] KEELC 467 (KLR)

Environment and Land Court
19 November 2020
LGL. Gacheru
6,250 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Residents who opposed a development lost their entire court case because they skipped mandatory appeals to statutory committees and tribunals first.

What this practically means

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Executive summary

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The Plaintiffs, the Redhill Kentmere Residents Association and its officials, sought an interlocutory injunction restraining the 1st Defendant (KO Holdings Limited) from constructing on LR No.12020/88 or changing its agricultural low-density residential use, and, in the main suit, a permanent injunction and cancellation of development and environmental approvals granted by the 2nd Defendant (County Government of Kiambu) and the 3rd Defendant (NEMA). All three Defendants filed Notices of Preliminary Objection contending that the Court lacked jurisdiction because the Plaintiffs had failed to exhaust statutory remedies: appeals under section 61(3) of the Physical and Land Use Planning Act 2019 to the County Physical and Land Use Planning Liaison Committee, and appeals under section 129(1) of EMCA to the National Environmental Tribunal. The 1st Defendant also pleaded res judicata, relying on Petition No. 117 of 2019. The Court directed that the motion and the objections be canvassed by written submissions. Applying the Mukisa Biscuits definition of a preliminary objection, the Owners of Motor Vessel Lillian principle on jurisdiction, and the exhaustion doctrine from Speaker of National Assembly v Karume, Mutanga Tea and Kibos Distillers, the Court (L. Gacheru J) held that the Plaintiffs' grievances over the change of user, the February 2020 development permission and the NEMA EIA licence all fell within statutory appeal mechanisms that had not been utilised, and that this Court's jurisdiction was appellate only. The suit was struck out entirely with costs to the Respondents; the interlocutory application was not determined, and the interim orders in place were vacated.

Key legal issues

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01

Exhaustion of statutory remedies under section 61(3) of the Physical and Land Use Planning Act 2019

Holding

The Plaintiffs, aggrieved by the decision of the County Executive Committee Members on planning, were obliged to appeal first to the County Physical and Land Use Planning Liaison Committee, and only thereafter to this Court on appeal

Reasoning

The Plaintiffs challenged the development permission granted on 28th February 2020 by the 2nd Defendant. Section 61(3) requires a challenge to a planning authority's decision to first lie with the Liaison Committee, with appeal thereafter to the Environment and Land Court. The Plaintiffs' failure to pursue that appeal meant they invoked this Court's jurisdiction prematurely; this Court's jurisdiction over such disputes is appellate, not original.

p. 7
02

Exhaustion of remedies under section 129(1) of EMCA regarding the NEMA EIA licence

Holding

Any person aggrieved by grant of an EIA licence must appeal to the National Environmental Tribunal within sixty days; the Plaintiffs did not, and so prematurely invoked this Court's jurisdiction

Reasoning

The Plaintiffs challenged the EIA licence issued to the 1st Defendant by NEMA. Section 129(1) of EMCA provides an appeal to the National Environmental Tribunal within sixty days of the event of dissatisfaction. The licence was never challenged or appealed, and the Court of Appeal decision in Kibos Distillers confirmed the Tribunal as the competent organ with original jurisdiction over such disputes.

p. 8
03

Jurisdiction as a threshold issue

Holding

The Court lacks jurisdiction over the suit because statutory alternative dispute resolution mechanisms were not employed; the suit was prematurely filed

Reasoning

All three Defendants raised preliminary objections that the Court lacked jurisdiction, citing existing statutory forums. Relying on Owners of Motor Vessel Lillian v Caltex Oil, Samuel Macharia Kamau v KCB and Kibos Distillers, the Court held that jurisdiction flows from the Constitution and legislation, that it cannot expand its own jurisdiction, and that it must down its tools where statute prescribes the procedure.

p. 8

Legal principles established

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  • Where a statute prescribes an alternative dispute resolution mechanism, that procedure must be strictly followed before invoking the Court's jurisdiction
  • A court without jurisdiction must down its tools and any action taken without jurisdiction is null and void
  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded are correct

Court orders

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  1. 1.The entire suit is struck out with costs to the Respondents
  2. 2.The Notice of Motion application dated 15th September 2020 is not determined, being an interlocutory application in the struck out suit
  3. 3.The interim orders in place are vacated

Authorities

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Legislation

  • Physical and Land Use Planning Act, 2019Section 61(3), section 61(4)
  • Physical Planning Act, 1996 (No. 6 of 1996) (repealed)Sections 25, 25(1), 25(4), 31, 33(3)
  • Environmental Management and Coordination Act (EMCA), 1999Section 129(1)
  • Constitution of Kenya, 2010Article 159(2)(c)
  • County Government Act, 2012Not specified
  • Environment Impact Assessment and Audit/Amendment Regulation 2016Not specified
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (9)

  • Quick Enterprises Ltd vs Kenya Railways Corporation
    Kisumu HCCC No. 22 of 1999
  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) EA 697
  • Owners of Motor Vessel "Lillian" Vs Caltex Oil Kenya Ltd
    1989 KLR
  • Samuel Macharia Kamau vs KCB & Others
    (2012) eKLR
  • Kibos Distillers Ltd & 4 others Vs Benson Ambuti Adega & 3 others
    (2020) eKLR
  • KO Holding Ltd vs County Government of Kiambu & Another (Nairobi HCC Constitution Petition No. 117 of 2019)
    (2019) eKLR
  • The Speaker of National Assembly vs Karume
    1992 KLR 22
  • Mutanga Tea & Coffee Company Ltd Vs Shikara Ltd & Another
    [2012] eKLR
  • Avtar Singh Bhamra & Another Vs Oriental Commercial Bank
    Kisumu HCCC No. 53 of 2004
Jurisdiction invoked
Environment and Land Court jurisdiction under statute; challenged by preliminary objections invoking section 61(3) of the Physical and Land Use Planning Act 2019, section 129(1) of EMCA and Article 159(2)(c) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Angela Mbugua & 4 others v KO Holdings Limited & 2 others [2020] KEELC 467 (KLR)", Case Analysis (2020). Not stated in judgment (Environment and Land Court, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/467/eng@2020-11-19

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