Francis Mugarami Kamau & 6 others (Suing on their behalf and on behalf of the Residents and Home owners of Migaa Integrated Golf Estate) v Sycamore Pine Limited & 2 others; National Environment Management Authority & another (Interested Parties) [2021] KEELC 231 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed two attempts to block residents' petition over a Kiambu apartment development, ruling the objections were legally flawed.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st respondent's preliminary objection based on Sections 56, 57 and 72 of the PLUPA (exhaustion of administrative remedies) was merited
Dismissed. Sections 56 and 57 contain no alternative dispute resolution framework, and Section 72 applies only to a development proponent served with an enforcement notice, which the petitioners are not.
The court examined the cited provisions and found that Section 56 concerns development control powers, Section 57 concerns development permission and restoration powers, and neither establishes a complaint mechanism. Section 72's framework is for parties aggrieved by enforcement notices; the petitioners are not proponents of the development and no enforcement notice was served on them, so the provisions cannot sustain the objection.
Whether the 2nd respondent's objection based on Sections 76, 78, 79, 80 and 81 of the PLUPA (County Physical and Land Use Planning Liaison Committee) could succeed
Rejected without going into merits: the objection requires evidence of applications for, or decisions on, development permission, none of which was exhibited.
The Liaison Committee framework contemplates complaints relating to applications submitted to the planning authority and appeals against decisions. Nothing before the court showed that development permission applications were submitted or that any appealable decision was made. The 2nd respondent was told to bring a formal motion exhibiting any applications and approvals if it wished the court to decline jurisdiction.
Whether the petitioners should first have gone to the National Environment Tribunal under Sections 125, 129 and 130 of the EMCA
The objection fails at this stage because no NEMA decision was exhibited, and NET jurisdiction arises only upon a NEMA decision.
The court read the NET framework as confining its jurisdiction to challenges against NEMA decisions. The 2nd respondent invoked the EMCA framework without exhibiting any NEMA decision relating to the impugned development, so the court could not pronounce itself on the alleged inappropriateness of the petition.
Whether a preliminary objection was the proper platform for the 2nd respondent's jurisdictional challenges
No. The issues require evidence and should be canvassed by a substantive supported motion.
Applying the Mukisa Biscuit definition of a preliminary objection as a point of law, the court held that the exhaustion questions raised depended on facts (existence of applications, permissions, approvals and NEMA decisions) that required evidence not yet before the court. The objectors remain free to raise jurisdictional issues by substantive motion.
Legal principles established
#- Sections 56 and 57 of the PLUPA do not contain any framework on alternative dispute resolution mechanisms and cannot found an exhaustion objection
- The dispute resolution mechanism under Section 72 PLUPA applies only to a party aggrieved by an enforcement notice served on them, i.e. the development proponent, not third-party residents
- The County Liaison Committee mechanism is only available where there exists an application for development permission or a decision relating to development permission
- The jurisdiction of the NET is available only when NEMA has made a decision; it is the NEMA decision that is challengeable at the NET
- Where jurisdictional exhaustion issues require evidence, a preliminary objection is not the proper platform; a substantive motion with supporting affidavits is required
Court orders
#- 1.The 1st respondent's preliminary objection dated 2/6/2021 is dismissed for lack of merit for having been anchored on a legal framework that does not provide a proper basis for the objection
- 2.The 2nd respondent's preliminary objection dated 4/6/2021 is rejected without venturing into the merits of the jurisdictional issues raised therein because, in the circumstances of this petition, the issues raised in the preliminary objection require evidence
- 3.The respective objectors shall bear costs of the preliminary objections
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act (original jurisdiction over environmental and land use disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Mugarami Kamau & 6 others (Suing on their behalf and on behalf of the Residents and Home owners of Migaa Integrated Golf Estate) v Sycamore Pine Limited & 2 others; National Environment Management Authority & another (Interested Parties) [2021] KEELC 231 (KLR)", Case Analysis (2021). Petition dated 27/5/2021 (not fully stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/231/eng@2021-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.