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ELCStruck OutELC Case of 2021 (Thika) — Plaint filed 19/7/2021· [2022] KEELC 369 (KLR)

Edward Nduati Hiuhu & 2 others v John K Wambugu & 3 others; County Fovernment of Kiambu & 3 others (Interested parties) [2022] KEELC 369 (KLR)

Environment and Land Court
28 March 2022
JKJ G Kemei
5,572 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenyans disputing building developments must first use county planning committees before courts will hear their land use case.

What this practically means

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Executive summary

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The Plaintiffs, members of the Kahawa Sukari Residents & Plot Owners Welfare Association, sued four Defendants for constructing multi-dwelling apartments on plots 2298, 1760, 1754 and 2216 in Zone 16, Kahawa Sukari, contrary to single-dwelling zoning, the association bye-laws and Kiambu County regulations. They sought permanent and temporary injunctions, a declaration of breach of bye-laws, and demolition or realignment orders. The Defendants contested the suit on locus standi, abatement, misjoinder and merits, while the 1st Interested Party (County Government of Kiambu) raised a preliminary objection that development-permission disputes lie with the County Physical and Land Use Liaison Committee under section 61(3) of the Physical and Land Use Planning Act, 2019, and EIA licence issues with the National Environmental Tribunal under section 129(1) of EMCA. The court, applying the doctrine of judicial abstention as expounded by the Supreme Court in the Kibos Distillers matter and the Speaker v Karume principle, held that although it enjoys original and appellate jurisdiction over land use planning under Article 162(2)(b) and section 13 of the ELC Act, the statutory dispute-resolution mechanism had to be exhausted first, taking judicial notice that the Liaison Committee had been gazetted on 28/7/2021. The 1st Interested Party's preliminary objection was upheld; the suit and the application of even date were struck out and the matter remitted to the County Liaison Committee and NET (if applicable). The Defendants' preliminary objection of 15/9/2021 was found spent and dismissed. Costs were awarded to the 1st Interested Party against the Plaintiffs.

Key legal issues

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01

Jurisdiction of the ELC over development permission disputes

Holding

The Court declined jurisdiction in the first instance because the Physical and Land Use Planning Act, 2019 provides an appeal mechanism to the County Physical and Land Use Liaison Committee, with ELC appeal thereafter

Reasoning

Although section 13 of the ELC Act confers original and appellate jurisdiction over land use planning disputes, the Act's internal dispute resolution mechanism under sections 58–61 must be exhausted first. Relying on the Supreme Court's exposition of judicial abstention in the Kibos Distillers matter and the Speaker v Karume principle, and taking judicial notice that the Liaison Committee was gazetted on 28/7/2021, the court held it lacked jurisdiction in the first instance.

p. 7
02

Disposal of the suit and interim application

Holding

The suit and the notice of motion dated 16/7/2021 were struck out and the matter remitted to the County Liaison Committee and NET

Reasoning

Having upheld the 1st Interested Party's preliminary objection on jurisdiction, the court struck out the plaint and application rather than dismiss, remitting the dispute to the statutory forums. The 2nd–4th Defendants' preliminary objection on locus was found spent and dismissed, and costs were awarded to the 1st Interested Party against the Plaintiffs.

p. 7

Legal principles established

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  • Where a clear procedure for redress of a grievance is prescribed by statute, that procedure must be strictly followed; courts should exercise judicial abstention where legislatively mandated institutions exist

Court orders

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  1. 1.The Preliminary Objection dated the 8/10/2021 by the 1st Interested Party is upheld and is hereby upheld
  2. 2.The matter is remitted to the County Physical and Land Use Liaison Committee and the National Environment Tribunal (NET) (if applicable) for hearing and determination
  3. 3.The suit dated the 16/7/2021 and the application of even date are struck out
  4. 4.The Preliminary Objection dated the 15/9/2021 is spent and is dismissed
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with Section 13 of the Environment and Land Court Act — the court found it lacked first-instance jurisdiction under the doctrine of judicial abstention

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, "Edward Nduati Hiuhu & 2 others v John K Wambugu & 3 others; County Fovernment of Kiambu & 3 others (Interested parties) [2022] KEELC 369 (KLR)", Case Analysis (2022). ELC Case of 2021 (Thika) — Plaint filed 19/7/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/369/eng@2022-03-28

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