Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutELC Petition No. 044 of 2021· [2022] KEELC 2121 (KLR)

Eric Kiprotich Soi & another v Director General Nairobi Metropolitan Services [2022] KEELC 2121 (KLR)

Environment and Land Court
20 January 2022
MMM.D. Mwangi
2,188 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court struck out a constitutional petition because the owners skipped an appeal process and a related pending land case over the same property.

What this practically means

#

Executive summary

#
The Petitioners, administrators of the estate of the late Linah Chelangat Kirui, claimed ownership of LR No. 2327/28/1 (Original LR No. 2327/28/2) by adverse possession and have a pending adverse possession suit, ELCOS 124 of 2020, in the Environment and Land Court at Nairobi, in which interim injunction orders had been issued by L. Komingoi J. They alleged that the Respondent, Director General Nairobi Metropolitan Services, marked the suit property for demolition on 7th October 2021, served an enforcement notice under section 72 of the Physical and Land Use Planning Act, and on 26th October 2021 partially demolished a gate, perimeter wall and gate house before the appeal against the notice, lodged with the Nairobi County Physical and Land Use Planning Liaison Committee, was heard. By notice of motion dated 29th October 2021 they sought temporary injunction, reinstatement of the demolished structures, and police enforcement orders. The Respondent opposed, denying approvals for the structures and contesting the court's jurisdiction. The court framed two issues: exhaustion of dispute resolution mechanisms and constitutional avoidance. Holding that the appeal before the Liaison Committee was pending and that its own jurisdiction under section 73(4) of the Act is appellate only on matters of law, and that the same dispute could be resolved in the pending ELCOS suit, the court found the petition violated both the doctrine of exhaustion and constitutional avoidance, amounting to an abuse of process. Exercising inherent powers under rule 3(8) of the Mutunga Rules, the court struck out the application and the entire petition with costs on 20th January 2022 (M.D. Mwangi J).

Key legal issues

#
01

Exhaustion of statutory dispute resolution mechanisms

Holding

The petition violated the doctrine of exhaustion because an appeal against the enforcement notice under section 72 of the Physical and Land Use Planning Act was still pending before the Nairobi County Physical and Land Use Planning Liaison Committee, and the court enjoys only appellate jurisdiction on matters of law under section 73(4) of the Act.

Reasoning

The Petitioners were served with an enforcement notice and filed an appeal under section 72 of the Physical and Land Use Planning Act, which was pending. Under section 73(4), an aggrieved party may appeal to the Environment and Land Court only on a matter of law. Instead of awaiting that appeal, the Petitioners filed a constitutional petition. The court, following Geoffrey Muthinja Kabiru, held that courts are fora of last resort and that bypassing the statutory mechanism while dressing the grievance in Bill of Rights language is an abuse of court process.

p. 3
02

Doctrine of constitutional avoidance

Holding

The petition offended the doctrine of constitutional avoidance because the same dispute could be resolved in the pending suit ELCOS 124/2020 concerning the same parcel of land.

Reasoning

The Petitioners had a pending suit, ELCOS 124/2020, over the same property, in which temporary injunction orders had already been issued by L. Komingoi J. The court held that the ELC court hearing that suit is a court of competent jurisdiction able to preserve the substratum of the suit, and the Respondent could be joined as an interested party and restrained there. Citing Communications Commission of Kenya and COD, the court held the Constitution cannot be a general substitute for normal procedures, and filing a parallel petition amounted to an abuse of process.

p. 3

Legal principles established

#
  • Where a dispute resolution mechanism exists outside the courts, it must be exhausted before the jurisdiction of the courts is invoked.
  • A constitutional petition cannot be used to circumvent statutory procedures by clothing an ordinary dispute in Bill of Rights language; the principle of avoidance requires the court not to determine a constitutional issue where the matter may properly be determined on another basis.
  • Where a suit over the same subject matter is pending before a court of competent jurisdiction, the appropriate remedy is to seek to join the offending party and obtain injunctive relief in that suit, not to file a separate constitutional petition.

Court orders

#
  1. 1.The Notice of Motion application dated 29th October 2021 and the entire Petition dated 29th October 2021 struck out with costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 19, 20, 21, 22, 23, 27, 40, 47, 50, 159
  • Physical and Land Use Planning ActSection 72 (including 72(3) and 72(4)); Section 73(4)
  • Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 3(8)

Cases cited (3)

  • Geoffrey Muthiga Kabiru & 2 Others v Samuel Munga Henry & 1756 others
    (2015) eKLR
  • Communications Commission of Kenya and 5 Others v Royal Medical Services & 5 Others
  • COD & another v Nairobi City Water & Sewerage Company
    Petition 419 of 2015 (2015) eKLR
Jurisdiction invoked
Article 22 and 23 of the Constitution (enforcement of fundamental rights and freedoms) read with the Environment and Land Court Act; Article 165(3) jurisdiction invoked by Petition

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (9)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Eric Kiprotich Soi & another v Director General Nairobi Metropolitan Services [2022] KEELC 2121 (KLR)", Case Analysis (2022). ELC Petition No. 044 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2121/eng@2022-01-20

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