Issa Ahmed & 15 others v Mohamed Al-Sawae [2021] KEELC 1325 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a residents' suit because they skipped the mandatory planning dispute committee and went straight to court.
What this practically means
#Executive summary
#Key legal issues
#What constitutes a preliminary objection
A preliminary objection is a pure point of law argued on the assumption that all facts pleaded by the other side are correct, per Mukisa Biscuit and Nitin Properties
The court adopted the classic Mukisa Biscuit formulation as echoed in Nitin Properties, Oraro v Mbaja and the Supreme Court's decisions in Joho and IEBC v Cheperenger, confirming that a preliminary objection must rest on law alone, without ascertainment of facts or exercise of discretion.
Whether the exhaustion doctrine under EMCA applied
It did not; no decision had been made by NEMA, so no appeal lay to the National Environment Tribunal
The Plaintiffs' letter of 3rd May 2021 to NEMA was never answered, hence no decision existed capable of appeal. Section 129 of EMCA caters for appeals from decisions, and no provision allows an appeal to NEMA itself; the Plaintiffs were therefore not obligated to invoke NET's jurisdiction.
Whether the exhaustion doctrine under the Physical Planning and Land Use Act applied
It did; the dispute was a planning matter and the Plaintiffs should have gone to the County Physical and Land Use Planning Liaison Committee first
The claim challenged the Defendant's proposed development as contrary to City Planning regulations, a matter of physical planning and development covered by the Act. Following Republic v NEMA Exparte Sound Equipment and Kibos Distillers, the court held that no exceptional circumstances justified bypassing the statutory Liaison Committee mechanism.
Effect of failure to exhaust on the court's jurisdiction
The ELC lacks original jurisdiction where an alternative statutory mechanism exists and was not exhausted
Relying on Owners of the Motor Vessel 'Lilian S' and Samuel Kamau Macharia, jurisdiction flows from the Constitution and statute and cannot be assumed. The ELC's appellate jurisdiction under sections 130 EMCA and the Physical Planning Act could not be used to usurp the original jurisdiction of other competent organs, per Kibos Distillers.
Weight of conflicting High Court decisions on exhaustion
Decisions permitting the ELC to hear matters that could be determined elsewhere were not binding, being prior to and inconsistent with the Court of Appeal's Kibos decision
The court distinguished Wainaina Kenyanjui and Gideon Kibindu, noting they were rendered before Kibos Distillers, which held that the ELC's appellate jurisdiction cannot be converted into original jurisdiction over matters assigned to statutory tribunals.
Legal principles established
#- Where Parliament has provided an alternative statutory dispute resolution mechanism, a party must exhaust it before invoking the court's jurisdiction, absent exceptional circumstances
Court orders
#- 1.The preliminary objection is upheld
- 2.The Notice of Motion dated 21st September 2021 is struck out
- 3.The Plaint dated 6th August 2021 and the entire proceedings are struck out
- 4.Costs awarded to the Defendant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (invoked by Plaintiffs); objection founded on sections 78 and 61(4) of the Physical and Land Use Planning Act 2019 and section 129 of EMCA 1999
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Issa Ahmed & 15 others v Mohamed Al-Sawae [2021] KEELC 1325 (KLR)", Case Analysis (2021). Not stated in judgment (Plaint dated 6th August 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1325/eng@2021-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.