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ELCDismissedELC Civil Appeal No. 86 of 2019· [2021] KEELC 3784 (KLR)

Abdille Abdiaziz Sabriye v Nairobi City County [2021] KEELC 3784 (KLR)

Environment and Land Court
1 March 2021
KBK. Bor
3,321 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A property owner facing a county enforcement notice in Kenya must use the Physical Planning Act's appeal process first before going to court.

What this practically means

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Executive summary

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The appellant owned shops on land reference 36/II/66, 6th Street, Eastleigh, Nairobi, constructed in 2003 after obtaining approvals from the then City Council. In July 2019 the respondent county issued an enforcement notice dated 2/7/2019 under the Physical Planning Act requiring removal of the shops on the ground that they encroached on a road reserve. The appellant sued in Milimani CMC ELC Case No. 5109 of 2019 seeking a permanent injunction and simultaneously sought an interlocutory injunction. The respondent raised a preliminary objection on jurisdiction and exhaustion of statutory remedies, which Senior Resident Magistrate P. Muholi upheld on 9/10/2019, striking out the application. The appellant appealed to the ELC and sought stay of execution. The respondent objected to the ELC's jurisdiction, contending that challenges to enforcement notices lay before the Liaison Committee and High Court under the Physical Planning Act, and that the appellant had breached exhaustion requirements and Section 9(4) of the Fair Administrative Action Act. The court held it had jurisdiction under Section 65 of the Civil Procedure Act since the Magistrate's order striking out the suit was a decree; a party seeking summary dismissal should invoke Section 79B, not a preliminary objection, so the objection failed. On the merits, applying the Court of Appeal's decision in Whitehorse Investments Limited v Nairobi City County, the court upheld the Magistrate's finding that statutory remedies under the Physical Planning Act had to be exhausted. It noted that Section 38(1) permits enforcement notices even after approval where conditions of development permission were breached, and although the 16-year delay smacked of bad faith, the Act set no time limit. The appeal was dismissed with costs to the respondent. Date of judgment: 1 March 2021 (K. Bor, Judge).

Key legal issues

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01

Whether the ELC has jurisdiction to entertain the appeal against the Magistrate's ruling

Holding

The court had jurisdiction under Section 65 of the Civil Procedure Act; the Respondent's preliminary objection failed and the correct course for seeking summary dismissal was Section 79B

Reasoning

The order striking out the appellant's suit/application constituted a decree since it conclusively determined the parties' rights. Appeals lie to the High Court and by extension the ELC under Section 65 of the Civil Procedure Act. Objections to appellate jurisdiction should be raised under Order 42 Rule 13(2) after directions, and the Respondent's objection was not of the type contemplated there. Summary rejection of an appeal lies under Section 79B, which the Respondent should have invoked.

p. 3
02

Whether the Learned Magistrate erred in upholding the preliminary objection on exhaustion of remedies under the Physical Planning Act

Holding

The Magistrate's finding was upheld; the appeal was dismissed, the court being bound by the Court of Appeal's decision in Whitehorse Investments Limited v Nairobi City County

Reasoning

Whitehorse Investments established that where Parliament has provided a statutory appeal procedure, judicial review or court intervention is only justified in exceptional circumstances, having regard to the suitability of the statutory tribunal. The dispute concerned building planning and development covered under the Physical Planning Act, which contains inbuilt protection mechanisms, and no good reason was given for not pursuing the statutory avenue.

p. 3
03

Whether the enforcement notice issued 16 years after approval was invalid

Holding

Section 38(1) of the Physical Planning Act empowers a local authority to serve an enforcement notice even after granting development permission where conditions were not complied with; the Act sets no time limit, so the notice cannot be faulted

Reasoning

The court observed the approval of 24/9/2003 was conditional, including that the plot not constitute part of public utility allocations. Section 38(1) permits an enforcement notice where a condition of development permission has not been complied with. Although the 16-year delay smacks of bad faith and unreasonableness, the statute prescribes no limitation period for issuing enforcement notices.

p. 3

Legal principles established

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  • Under Section 65 of the Civil Procedure Act an appeal lies to the High Court (and by extension the ELC) from any original decree of a subordinate court on a question of law or fact, and a decision striking out a suit determines the rights of the parties so as to constitute a decree
  • A party wishing to have an appeal from a subordinate court summarily dismissed should invoke the procedure under Section 79B of the Civil Procedure Act rather than filing a preliminary objection to the appellate court's jurisdiction
  • Where there is an alternative remedy, especially a statutory appeal procedure, judicial review will only be granted in exceptional circumstances
  • The Physical Planning Act sets no time limit within which an enforcement notice must issue after development permission, so an enforcement notice issued 16 years after approval cannot be faulted, though the delay may smack of bad faith and unreasonableness

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent
  2. 2.The finding of the Learned Magistrate delivered on 9/10/2019 is upheld

Authorities

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Legislation

  • Physical Planning ActSections 9(4), 13, 15, 30, 33, 36, 38(1), 38(4), 38(6), 41, 52
  • Fair Administrative Action ActSection 9(4)
  • Civil Procedure ActSections 2, 65, 78, 79B, Part VIII
  • Civil Procedure RulesOrder 40, Order 42 Rules 1, 2, 13(1), 13(2)

Cases cited (8)

  • Deluxe Motors Limited v City Council of Nairobi
    [2009] eKLR
  • Anju Chanandin v City Council of Nairobi & Another
    [2019] eKLR
  • Registered Trustees of Redeemed Gospel Church v Yusuf Ibrahim & Another
    [2013] eKLR
  • Rhumba Kinuthia v County Government of Kiambu
    [2015] eKLR
  • Whitehorse Investment Limited v Nairobi City County Government
    [2019] eKLR
  • Whitehorse Investments Limited v Nairobi City County Government, ELC J.R. Case No. 12 of 2018
  • Kimani Wanyoike v Electrol Commission of Kenya
    Civil Appeal of 1995
  • International Center for Policy and Conflict and 5 Others v Attorney General and 5 Others
    [2013] eKLR
On appeal from
Chief Magistrate's Court, Milimani
CMCC ELC Case No. 5109 of 2019
Jurisdiction invoked
Section 65 of the Civil Procedure Act (appeal from subordinate court to the High Court/ELC)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abdille Abdiaziz Sabriye v Nairobi City County [2021] KEELC 3784 (KLR)", Case Analysis (2021). ELC Civil Appeal No. 86 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3784/eng@2021-03-01

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