Depar Limited v County Executive Committee Member for Lands, Physical Planning, Housing and Urbanization & another [2021] KEELC 3264 (KLR)

The Respondents argued that challenges to enforcement notices lie before the Liaison Committee under Section 78 of the Physical and Land Use Planning Act, 2019, and relied on exhaustion of statutory remedies. The court noted that Section 93 of the same Act provides that before establishment of national and county liaison committees, disputes relating to physical and land use planning shall be heard and determined by the Environment and Land Court. Since the Committee was constituted only after the petition was filed, the Petitioner's only option for redress was this court, and jurisdiction once acquired at commencement is not lost by the Respondents' unilateral action.

The Respondents filed no replying affidavit and advanced no justification for the enforcement notice, confining themselves to a jurisdictional preliminary objection. The Petitioner's allegations were therefore uncontroverted. The court accepted that the Petitioner had obtained the relevant approvals from various authorities and held that public authorities must act within the law, with lawful justification, and not capriciously or without due process.

Although the Petitioner demonstrated a violation of its rights, it was not entitled to all reliefs sought. The grievance centred on the notice and the failure to constitute the Committee, which has since been established. There was no evidence of violations of Articles 27 and 40, and the prayer for prohibition was speculative since there was no evidence of intended further notices without due process.