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ELCDismissedMeru Petition dated 1st May 2019· [2020] KEELC 3998 (KLR)

Kathuku v County Government of Meru (Petition 8 of 2019) [2020] KEELC 3998 (KLR)

Environment and Land Court
18 November 2020
LMLucy N. Mbugua
2,375 words in judgment
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The bottom line

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A Kenyan landowner who skipped the Physical Planning Act's appeal process and a court site visit lost his bid to stop demolition of a structure on a road reserve.

What this practically means

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Executive summary

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The petitioner, Eustace Kathuku, petitioned the Environment and Land Court at Meru seeking declarations that his rights of ownership, occupation and user of Plot No. 26B Laare Township, conferred by the defunct Meru and Nyambene County Councils, should be respected by the County Government of Meru under Article 40 of the Constitution. He bought the developed plot in 1969, obtained approved building plans in 2005 and paid rates and rent, but on 29 April 2019 a county officer marked his building for demolition, contending he had no permission for the developments. The county countered that only a 15-foot illegal extension encroaching on a road reserve was targeted, and that the petitioner had not exhausted dispute resolution mechanisms under sections 38 and 39 of the Physical Planning Act. The court framed two issues: jurisdiction and entitlement to relief. It held the enforcement notice was issued under section 38 of the Physical Planning Act, which provides appeals to liaison committees and ultimately the High Court, and the petitioner, having bypassed those remedies, could not maintain a constitutional petition. The court followed Republic v Nairobi City County Ex parte Kenafric Properties and applied Peter Ochara Anam. It also distinguished M'Munoru M'Mugwongo, since the county never questioned the legality of the entire plot, only the encroachment on the public road. The petitioner's failure to attend the court-ordered site visit meant he failed to prove his averments under section 107 of the Evidence Act. The petition was dismissed with costs to the respondent.

Key legal issues

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01

Whether the court had jurisdiction given the petitioner's failure to exhaust remedies under the Physical Planning Act

Holding

The petition was a nullity in substance because the petitioner did not pursue the appeal mechanisms under sections 13 and 15 of the Physical Planning Act

Reasoning

The enforcement notice was issued under section 38 of the Physical Planning Act, which provides an appeal mechanism to the liaison committee, the National Liaison Committee and ultimately the High Court. Relying on Kenafric Properties and the Anam case, the court held the constitution did not outlaw statutory dispute resolution mechanisms, so a party must use them where adequate.

p. 4
02

Whether the petitioner was entitled to constitutional protection of property under Article 40

Holding

No, because the dispute concerned only the extension encroaching on a public road reserve, not the legality of the entire plot, and thus raised no constitutional issue

Reasoning

The court distinguished M'Munoru M'Mugwongo (Kiengu market) where the county's claim was that entire plots were illegal, inconsistent with its own enforcement notice. Here the enforcement notice targeted only the encroachment onto a public road of access, and the respondent never questioned the legality of the petitioner's entire plot.

p. 5
03

Whether the petitioner proved that his building was old and there were no new developments

Holding

No; the petitioner shunned the court-ordered site visit and failed to discharge the evidentiary burden

Reasoning

The court had directed a site visit with joint reports; the petitioner declined to participate, denying the court the chance to verify his averments that his building was very old. Under section 107 of the Evidence Act he who alleges must prove, and the physical planner's report showed encroachment leaving 6 meters instead of 9 meters of road.

p. 5

Legal principles established

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  • Where an adequate statutory dispute resolution mechanism exists, a party must exhaust it before resorting to a constitutional petition
  • He who alleges must prove - the burden lies on the petitioner to prove his averments

Court orders

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  1. 1.The petition is dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Physical Planning ActSections 7, 10, 13, 15, 38, 39
  • Physical and Land Use Planning Act
  • Evidence ActSection 107
  • Civil Procedure RulesOrder 21 rule 1
  • Constituency Development Fund Act

Cases cited (4)

  • M' Munoru M' Mugwongo & 2 others v County Government of Meru
    [2020] eKLR
  • Republic v Nairobi City County & another Ex parte Kenafric Properties Ltd & another
    [2019] eKLR
  • Multiple Hauliers East Africa Limited V Attorney General & 10 others
    [2013] eKLR
  • Peter Ochara Anam & Others -V- Constituencies Development Fund CDF Board & Others
    Kisii Petition No.3 Of 2010 (unreported) (2011) eKLR
Jurisdiction invoked
Article 40 of the Constitution of Kenya (invoked by petitioner); ELC jurisdiction over land and property disputes

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, "Kathuku v County Government of Meru (Petition 8 of 2019) [2020] KEELC 3998 (KLR)", Case Analysis (2020). Meru Petition dated 1st May 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3998/eng@2020-11-18

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