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ELCOtherPetition dated 27/1/2022 (Thika ELC)· [2022] KEELC 938 (KLR)

Susan Wanjiku Maina v Director, Physical and Land Use Planning Kiambu County Government & another [2022] KEELC 938 (KLR)

Environment and Land Court
3 March 2022
BEB M Eboso
2,865 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Before suing a Kenyan county over an enforcement notice, you must first take your dispute to the County Liaison Committee, the High Court-style land court has confirmed.

What this practically means

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Executive summary

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The petitioner, Susan Wanjiku Maina, proprietor of LR No. Ruiru Kiu Block 3/2060 Plot No. 955 Kahawa Sukari, petitioned the Environment and Land Court at Thika challenging Enforcement Notice No. 00776 dated 11/1/2022 issued by the County Government of Kiambu directing her to stop construction and seek re-approval of development permissions, and challenging the purported revocation of her existing approvals. She sought declarations of unconstitutionality and violation of fair administrative action, orders of certiorari and prohibition, and damages. The respondents raised a preliminary objection contending that the court lacked jurisdiction because Sections 72(3)-(4) and 61(3)-(4) of the Physical and Land Use Planning Act, 2019 required the petitioner first to appeal to the Kiambu County Physical and Land Use Planning Liaison Committee, with appeals lying to the ELC only on matters of law. The court framed a single issue: whether it was the primary adjudicatory body for the dispute. Relying on the Owners of Motor Vessel 'Lilian S' jurisdiction doctrine, the Supreme Court's decision in Samuel Kamau Macharia, and the remittal principle in Kibos Distillers and Benson Ambuti Adega, the court held that the petitioner ought to exhaust the statutory mechanism before invoking the court's original jurisdiction. However, acknowledging that the petitioner had been advised the Liaison Committee had not been inaugurated when she filed, the court declined to strike out the petition. The preliminary objection was upheld to that extent and the petition was remitted to the Liaison Committee, with a deemed filing date of 25/1/2022 for limitation purposes, liberty to regularize documentation, and each party bearing its own costs.

Key legal issues

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Whether the ELC had jurisdiction to entertain the petition at first instance without exhaustion of the PLUPA statutory appeal mechanism

Holding

The preliminary objection was upheld to the extent that the petitioner should first exhaust the Liaison Committee mechanism; the petition was remitted rather than struck out, with a deemed filing date protecting limitation

Reasoning

Sections 72(3)-(4) and 61(3)-(4) of the Physical and Land Use Planning Act, 2019 establish the County Physical and Land Use Planning Liaison Committee as the primary adjudicatory body for disputes over enforcement notices and development permissions, with the ELC exercising appellate jurisdiction. Following Kibos Distillers and the Supreme Court's guidance in Benson Ambuti Adega, disputes should be remitted to primary bodies. Because the petitioner inquired and was told the Committee was not inaugurated, the deemed filing date of 25/1/2022 was granted to protect limitation.

p. 4

Legal principles established

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  • Where statutory primary adjudicatory bodies vested with primary jurisdiction over land use disputes are unable to sit, the ELC may exercise its original jurisdiction; otherwise parties must exhaust the statutory mechanism
  • Instead of striking out suits filed prematurely, superior courts should remit disputes to the appropriate primary dispute adjudication bodies

Court orders

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  1. 1.The petition is remitted to the Kiambu County Physical and Land Use Planning Liaison Committee for adjudication as a claim/dispute/complaint/grievance within the framework of the Physical and Land Use Planning Act 2019 and any rules or regulations made thereunder
  2. 2.For purposes of limitation, the dispute shall be deemed to have been filed on 25/1/2022, the day the petitioner was advised that the Liaison Committee had not been inaugurated
  3. 3.The Liaison Committee shall be at liberty to require the petitioner to file such other documents as shall be necessary to align the documentations with its rules, regulations and procedures
  4. 4.Parties shall bear their respective costs of the proceedings in this court
  5. 5.Court Registry to type the proceeding and remit the file once the proceedings are typed

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13
  • Physical and Land Use Planning Act, 2019Section 72(3) and (4)
  • Physical and Land Use Planning Act, 2019Section 61(3) and (4)
  • Fair Administrative Action Act

Cases cited (5)

  • Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd (1989) 1 KLR
    (1989) 1 KLR
  • Samuel Kamau Macharia & ano v Kenya Commercial Bank Limited & 2 others [2012] eKLR
    [2012] eKLR
  • In the Matter of Interim Independent Electoral Commission (Applicant), Constitution Application Number 2 of 2011
  • Kibos Distillers Limited & 4 others v Benson Ambuti & 3 others [2020] eKLR
    [2020] eKLR
  • Benson Ambuti Adega v Kibos Distillers Ltd & 5 others [2020] eKLR
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 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 (8)

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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, "Susan Wanjiku Maina v Director, Physical and Land Use Planning Kiambu County Government & another [2022] KEELC 938 (KLR)", Case Analysis (2022). Petition dated 27/1/2022 (Thika ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/938/eng@2022-03-03

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