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ELCDismissedPetition dated 23rd October, 2020· [2021] KEELC 1749 (KLR)

Daniel Waithanji Mwangi & 2 others v Contractors and Harvestors Limited [2021] KEELC 1749 (KLR)

Environment and Land Court
23 September 2021
JMJ M Mutungi
3,512 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed landowners' petition because they had to first use statutory planning and environmental appeal channels before going to court.

What this practically means

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Executive summary

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The petitioners, registered proprietors of L.R No. 519/354 in an industrial zone in Njoro where they have operated a sawmill for over three decades, petitioned against the owner of the adjacent L.R No. 519/344. They alleged the respondent intended to subdivide its land into 50ft by 100ft residential plots without a lawful change of user, environmental impact assessment or planning approval, threatening their rights under Articles 22(1), 42, 69 and 70 of the Constitution. They sought a declaration and a permanent injunction restraining subdivision and sale for residential use. The respondent, through a preliminary objection and replying affidavit, countered that change of user to residential had been approved in October 2015, the former parcel no longer existed, and the petition was speculative, barred by laches and unsustainable. The court framed two issues: whether its constitutional jurisdiction was properly invoked and whether the reliefs were merited. Applying the exhaustion doctrine as laid down in Speaker of National Assembly v Karume, Geoffrey Muthinja Kabiru and related authorities, the court held that disputes over change of user, subdivision approval and EIAs fall under statutory dispute resolution mechanisms in the Physical and Land Use Planning Act, 2019 and EMCA, whose tribunals and liaison committees the petitioners had not invoked; the Environment and Land Court therefore lacked original jurisdiction. In the alternative, the court found the petition premature, speculative and failing the Anarita Karimi Njeru precision threshold, with no tangible evidence of subdivision or sale. The petition was dismissed with costs to the respondent.

Key legal issues

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01

Whether the constitutional jurisdiction of the court was properly invoked

Holding

Jurisdiction was not properly invoked; the petitioners were obliged to exhaust statutory dispute resolution mechanisms under the Physical and Land Use Planning Act, 2019 and EMCA before approaching the court

Reasoning

The complaints centred on change of user, subdivision approval and the EIA, all matters governed by dedicated statutory regimes. The Physical and Land Use Planning Act provides appeals to the County Physical and Land Use Planning Liaison Committee and thence to the ELC, while EMCA establishes the National Environment Tribunal with appeals lying to the ELC. Where ample statutory avenues exist, the constitutional court defers to them; failure to exhaust divests the court of original jurisdiction.

p. 4
02

Whether the reliefs sought were merited

Holding

Not merited; even assuming jurisdiction, the petition was premature, speculative and failed the precision test in Anarita Karimi Njeru

Reasoning

The court found no tangible evidence that the respondent had subdivided the land and was offering the plots for sale for residential development. The alleged violations were not pleaded with reasonable degree of precision, the petition lacked sufficient particularity to enable the respondent to respond, and the apprehended environmental conflicts were speculative, with alternative avenues available to the petitioners.

p. 4

Legal principles established

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  • Where there is an alternative remedy provided by statute, that remedy must be pursued and exhausted before any other remedy can be sought through the courts
  • The Environment and Land Court lacks original jurisdiction over physical planning and environmental disputes where statutes provide a dispute resolution mechanism; it exercises appellate jurisdiction over decisions of the statutory bodies

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 KenyaArticles 22(1), 42, 47, 69, 70, 159
  • Physical and Land Use Planning ActSections 57(1), 57(6), 61(3) and (4)
  • Environment Management and Co-ordination Act (EMCA)Sections 58, 125, 126(2), 130
  • Physical Planning Act (repealed)referred to generally
  • Civil Procedure RulesOrder 53

Cases cited (10)

  • John Kabukuru Kibicho & Another Vs County Government of Nakuru & Others
    [2016] eKLR
  • Deepak Harakch & Another Vs Anmol Limited & 4 others
    [2018] eKLR
  • Christian Juma Wabwire Vs Attorney General
    [2019] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Geoffrey Muthinja Kabiru & 2 others -vs- Samuel Muriga Henry & 1756 others
    (2015) eKLR
  • Zoa limited –vs- Arrid Mani & 2 others
    (2020) eKLR
  • Speaker of National Assembly -vs- James Njenga Karume
    (1992) eKLR
  • Samson Chembe Vuko -vs- Nelson Kilumo & Another
    (2016) eKLR
  • Anarita Karimi Njeru -vs- Republic No.10
    (1979) KLR 154
  • Mumo Matemo –vs- Trusted Society of Human Rights Alliance
    (2014) eKLR
Jurisdiction invoked
Article 22 of the Constitution (enforcement of Bill of Rights); Environment and Land Court jurisdiction under the Physical and Land Use Planning Act, 2019 and EMCA

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, "Daniel Waithanji Mwangi & 2 others v Contractors and Harvestors Limited [2021] KEELC 1749 (KLR)", Case Analysis (2021). Petition dated 23rd October, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1749/eng@2021-09-23

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