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ELCDismissedELC Case No. 51 of 2020· [2021] KEELC 2103 (KLR)

Kibos Distillers Ltd v Wanahewa Housing Cooperative Ltd & 2 others; National Environment Management Authority (Interested Party) [2021] KEELC 2103 (KLR)

Environment and Land Court of Kenya
3 September 2021
AOANTONY OMBWAYO
1,583 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a bid to throw out a land suit, confirming that preliminary objections cannot rely on disputed facts.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (Antony Ombwayo J) determines a preliminary objection dated 29 September 2020 raised by the 1st Defendant, Wanahewa Housing Cooperative Ltd, in a suit by Kibos Distillers Ltd seeking a permanent injunction restraining subdivision, sale and leasing of land parcel L.R. No. 654/21 (adjacent to the plaintiff's factory) for residential construction, a declaration that the surrounding area is an industrial zone, and an order quashing the change of user allegedly issued to the 1st Defendant by the County Government of Kisumu. The 1st Defendant argued that the plaintiff failed to exhaust the alternative dispute resolution mechanisms under the Physical and Land Use Planning Act, particularly appeal to the County Physical and Land Use Planning Liaison Committee under Sections 61 and 76-78, relying inter alia on Owners of the Motor Vessel Lillian v Caltex Oil, Samuel Kamau Macharia v KCB, and prior Court of Appeal authority in the same matter. The plaintiff filed no submissions, as did none of the other defendants or the interested party. The court directed itself by the Mukisa Biscuits and Oraro v Mbaja thresholds that a preliminary objection must be a pure point of law not blurred by contested facts. It found that the existence of the change of user — the crux of the objection — had not been evidenced, the 2nd Defendant who would issue such consent had not commented, and no defences had been filed, so the court could not proceed on the assumption that all pleaded facts were correct. The preliminary objection was accordingly dismissed. No express costs order was made.

Key legal issues

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Whether the preliminary objection based on non-exhaustion of statutory dispute resolution mechanisms was a pure point of law

Holding

The objection failed because it depended on facts not established: the change of user relied upon by the 1st Defendant had not been produced, and the 2nd Defendant, which issues such consent, had not voiced an opinion.

Reasoning

The court reiterated the Mukisa Biscuits and Oraro v Mbaja thresholds. The 1st Defendant contended that Section 78 of the Physical and Land Use Planning Act required appeal to the County Liaison Committee first. However, the court found the suit's core contention — the change of user — rested on facts not before the court, no defences had been filed, and it could not assume all pleaded facts were correct. An objection entangled with contested facts is not a valid preliminary objection.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law, on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or evidence adduced.
  • A purported preliminary objection that bears factual aspects calling for proof is not a true preliminary objection and should not be allowed to proceed.

Court orders

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  1. 1.The preliminary objection dated 29/9/2020 is dismissed.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(c)
  • Physical and Land Use Planning Act No. 605 of 2019Sections 61(3), 61(4), 76, 78(b)

Cases cited (7)

  • Samuel Kamau Macharia vs Kenya Commercial Bank & 2 others
    CA. No. 2 of 2011
  • Kibos Distillers Ltd & 4 others vs Benson Ambuti Adega & 3 others
    [2020] eKLR
  • Angela Mbugua & 4 others vs KO Holdings ltd & 2 others
    [2020] eKLR
  • Owners of The Motor Vessel Lillian vs Caltex Oil (Kenya) Limited
  • Francis Mutuku vs Wiper Democratic Movement Kenya & 2 Others
    (2015) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v Westend Distributors Limited
    (1969) EA 696
  • Oraro vs Mbaja
    (2005) 1 KLR
Jurisdiction invoked
Environment and Land Court Act; suit filed invoking the court's original jurisdiction over disputes concerning land use and planning

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, "Kibos Distillers Ltd v Wanahewa Housing Cooperative Ltd & 2 others; National Environment Management Authority (Interested Party) [2021] KEELC 2103 (KLR)", Case Analysis (2021). ELC Case No. 51 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2103/eng@2021-09-03

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