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ELCDismissedMachakos ELC Petition No. 6 of 2020 (Petition dated 6th November, 2020) - ruling on Notice of Motion dated 5th March, 2021 and Preliminary Objection dated 22nd March, 2021· [2022] KEELC 498 (KLR)

Galot Industries Limited & 2 others v Machakos County Government & 4 others; Erdemann Property Limited & 4 others (Interested parties) [2022] KEELC 498 (KLR)

Environment and Land Court
18 March 2022
3,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court refused to strike out a land petition challenging a change of user, ruling affected residents deserve their day in court.

What this practically means

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Executive summary

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The 1st Interested Party, London Distillers (K) Ltd, moved to strike out the Petitioners' Petition and their Notice of Motion seeking conservatory orders and stay of numerous suits before the NET, the ELC and the High Court, contending the Petition was res judicata, sub judice, an abuse of process, and contravened the doctrine of exhaustion since zonation and change-of-user complaints belong before the County Physical and Land Use Planning Liaison Committee. The Petitioners, project most affected persons, opposed, alleging they were never consulted or served when the 1st Interested Party obtained change of user from industrial to residential use, contrary to Section 41 of the repealed Physical Planning Act and Article 47 of the Constitution, and that only the ELC has jurisdiction over the constitutional questions raised. Justice Christine Ochieng framed a single issue: whether the Petition and application should be struck out with costs. She held that res judicata was not established because none of the prior decisions determined the Petition's fulcrum - non-participation of affected persons in the change of user - some suits were undetermined, decisions of the NET cannot be equated to those of the ELC, and the parties in related suits did not litigate under the same title. Sub judice also failed as the Petition seeks distinct orders. Applying Muruatetu and Trusted Society v Mumo Matemo, she held the 1st Interested Party lacked locus to seek striking out. The exhaustion doctrine did not bar the Petition since no tribunal can determine constitutional questions and the Petitioners, unaware of the decision, could not have appealed in time. The application and preliminary objection were dismissed with costs in the cause, and the Petition directed to be set down for hearing on its merits.

Key legal issues

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01

Whether the Petition is res judicata

Holding

Res judicata not established; the prior decisions relied on were from NET (a tribunal not equatable to the ELC) and the parties were not litigating under the same title

Reasoning

The court applied Section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai. None of the decisions furnished determined the fulcrum of the Petition, namely the lack of participation of the project most affected persons before grant of Change of User. Some suits were undetermined, and in ELC No. 104 of 2020 and Mohan Galot the parties were not litigating under the same title.

p. 5
02

Whether the Petition is res sub judice

Holding

Sub judice not established because the Petition seeks orders not found in the other pending suits

Reasoning

The court noted that other orders sought in the Petition are not present in the other suits and claims, and that the court is expected to deal with those distinct prayers. The prayer to strike out on this ground was therefore disallowed.

p. 5
03

Whether the 1st Interested Party has locus standi to apply to strike out the Petition

Holding

The 1st Interested Party lacked locus standi to move the court to strike out the Petition

Reasoning

Relying on Muruatetu and Trusted Society of Human Rights Alliance v Mumo Matemo, the court held that an interested party enjoined in a suit cannot seek to strike it out on grounds of defective pleadings, since a suit is owned solely by the parties to it.

p. 5
04

Whether the doctrine of exhaustion bars the Petition

Holding

Exhaustion does not bar the Petition because constitutional issues are the preserve of the ELC, and the Petitioners could not appeal having been unaware of the change of user decision

Reasoning

While concurring that the exhaustion doctrine applies generally, the court held no tribunal can determine constitutional questions. Further, it was uncontroverted that the Petitioners were unaware of the change of user process, so they could not appeal under Section 41 of the repealed Physical Planning Act within the requisite time.

p. 5

Legal principles established

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  • An interested party cannot be heard to seek to strike out a suit on grounds of defective pleadings; a suit is owned solely by the parties
  • For res judicata to apply the former suit must have been heard and finally determined by a competent court between the same parties litigating under the same title
  • No tribunal has jurisdiction to determine constitutional issues; that is the preserve of the Environment and Land Court under Section 13 of the Environment and Land Court Act

Court orders

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  1. 1.The Notice of Motion Application dated 5th March 2021 and Notice of Preliminary Objection dated 22nd March, 2021 are disallowed as unmerited
  2. 2.The Petition and the Petitioners' Notice of Motion Application are not struck out
  3. 3.Costs in the cause
  4. 4.Petition to be set down for hearing on its merits
Jurisdiction invoked
Article 162(2)(b) of the Constitution and section 13(2)(a) and (e) of the Environment and Land Court Act

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, "Galot Industries Limited & 2 others v Machakos County Government & 4 others; Erdemann Property Limited & 4 others (Interested parties) [2022] KEELC 498 (KLR)", Case Analysis (2022). Machakos ELC Petition No. 6 of 2020 (Petition dated 6th November, 2020) - ruling on Notice of Motion dated 5th March, 2021 and Preliminary Objection dated 22nd March, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/498/eng@2022-03-18

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