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ELCStruck OutNot stated in the judgment as provided· [2021] KEELC 4509 (KLR)

Wilson Otieno Omwom v County Government of Kisumu [2021] KEELC 4509 (KLR)

Environment and Land Court
28 January 2021
AOANTONY OMBWAYO
1,197 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If you get a county enforcement notice over your land in Kenya, use the Physical Planning Act appeal process first—courts will strike out suits that skip it.

What this practically means

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Executive summary

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The plaintiff sued the County Government of Kisumu over plot No. 9341/123 Maseno Township, alleging he was the administrator of the estate of the deceased allottee, Phoebe Nyando Adhanja. He obtained development permission, built a storied structure at a cost exceeding Kshs. 4,000,000, and was then served with an enforcement notice dated 4/6/2019 demanding demolition on the ground that no development permission had been granted. He sought a permanent injunction restraining the defendant from enforcing the notice or demolishing the structure, alleging the defendant's acts were in bad faith, unlawful and malicious. The defendant opposed the suit, contending the alleged transfer from the deceased was fraudulent and amounted to intermeddling with a deceased person's estate, and that the approval had been granted in the mistaken belief that the plaintiff held genuine documents. The defendant raised a preliminary objection that the court lacked jurisdiction because Sections 38(4), (5) and (6) of the Physical Planning Act require a person aggrieved by an enforcement notice to appeal first to the liaison committee, then to the National Liaison Committee, and only thereafter to the High Court. The plaintiff invoked Section 13 of the Environment and Land Court Act 2013. Applying the doctrine of exhaustion and authorities on jurisdiction, the court held the liaison committees' jurisdiction had not been invoked and the suit was premature. The suit was struck out with costs on 28th January 2021.

Key legal issues

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01

Jurisdiction and exhaustion of statutory dispute resolution mechanisms

Holding

The suit was premature because the plaintiff did not first appeal to the liaison committees as required by Section 38(4)–(6) of the Physical Planning Act before coming to court

Reasoning

Section 38 of the Physical Planning Act provides a tiered appeal mechanism from the liaison committee to the National Liaison Committee and then to the High Court for a person aggrieved by an enforcement notice. The court applied the doctrine of exhaustion and the principle that a court cannot arrogate to itself jurisdiction beyond what is conferred by law, holding the ELC could not entertain a suit bypassing that statutory mechanism.

p. 2

Legal principles established

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  • Where a dispute resolution mechanism exists outside courts, it must be exhausted before the jurisdiction of the court is invoked
  • A court's jurisdiction flows from the Constitution or legislation and cannot be expanded by judicial craft or innovation
  • Original jurisdiction does not oust the jurisdiction of other competent organs legislatively mandated to determine disputes

Court orders

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  1. 1.The suit is struck out with costs

Authorities

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Legislation

  • Physical Planning ActSection 38(1)
  • Physical Planning ActSection 38(2)
  • Physical Planning ActSection 38(3)
  • Physical Planning ActSection 38(4)
  • Physical Planning ActSection 38(5)
  • Physical Planning ActSection 38(6)
  • Environment and Land Court Act 2013Section 13

Cases cited (2)

  • Samuel Kamau Macharia and another – v- Kenya Commercial Bank and 2 Others
    Application No. 2 of 2011
  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
    [2020] eKLR
Jurisdiction invoked
Section 13 of the Environment and Land Court Act 2013 (as urged by the plaintiff); the court held the statutory exhaustion mechanism under Section 38 of the Physical Planning Act barred the suit

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, "Wilson Otieno Omwom v County Government of Kisumu [2021] KEELC 4509 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4509/eng@2021-01-28

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