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ELCDismissedPetition dated 14th November 2019 (Kerugoya ELC)· [2022] KEELC 2187 (KLR)

Thuo v County Government of Kirinyaga & another (Environment and Land Constitutional Petition 5 of 2019) [2022] KEELC 2187 (KLR)

Environment and Land Court
18 March 2022
ECE.C. Cherono
2,416 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court dismissed a land rights petition because the buyer skipped the required appeal to the County Liaison Committee before going to court.

What this practically means

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Executive summary

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The petitioner sought declarations that the County Government of Kirinyaga's Dispute Resolution Committee, by resolving ownership of plot No. 115 Kibothere in Kutus Town in favour of the 2nd Respondent on 8th October 2019, acted unconstitutionally and in breach of fair administrative action; certiorari to quash the proceedings; mandamus to compel issuance of an allotment letter; declarations of rights violations under Articles 47, 40, 27, 28, 48 and 50(1); compensation; and an injunction restraining the 2nd Respondent. The petitioner claimed he purchased the plot from Purity Wanjiru Wangeci in 2017, a transfer approved by the County's Land Housing and Urban Development Committee. Both respondents opposed; the 2nd Respondent raised a preliminary objection founded on failure to exhaust statutory dispute resolution mechanisms under the Fair Administrative Actions Act and the Physical and Land Use Planning Act, 2019, and contended the petition was a land dispute clothed as a constitutional issue. The court framed three issues: exhaustion of dispute mechanisms, proof of the petition, and costs. Applying the exhaustion doctrine, the court held that a party aggrieved by an administrative decision must first exhaust internal and statutory remedies. The petitioner's failure to appeal to the County Physical and Land Use Planning Liaison Committee under Section 80 of the Physical and Land Use Planning Act rendered the petition premature and untenable. The petition was dismissed with costs to the Respondents.

Key legal issues

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01

Exhaustion of alternative dispute resolution mechanisms

Holding

The petition was premature as the petitioner never appealed to the County Physical and Land Use Planning Liaison Committee as required by the Physical and Land Use Planning Act, 2019

Reasoning

Section 9(2) of the Fair Administrative Actions Act bars judicial review of administrative action unless internal mechanisms and all remedies under other written law are first exhausted. The Physical and Land Use Planning Act establishes the County Physical and Land Use Planning Liaison Committee to hear appeals against planning decisions, and its determination may be recorded by the Environment and Land Court as a judgment. The petitioner challenged the County Government's Dispute Resolution Committee decision but showed nothing indicating an appeal to the Liaison Committee. The petition was therefore untenable and premature.

p. 6

Legal principles established

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  • A party must exhaust internal dispute resolution mechanisms before moving to court

Court orders

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  1. 1.Petition dismissed
  2. 2.Costs to the Respondents

Authorities

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Legislation

  • Fair Administrative Actions ActSection 9
  • Physical and Land Use Planning Act, 2019Sections 32, 40, 78, 80, 84
  • Constitution of Kenya, 2010Articles 22(3), 27, 28, 40, 47, 48, 50(1), 159

Cases cited (3)

  • Pauline Kanyiba Njogu vs Wanjao Mwarano & 3 others
    [2017] eKLR
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & Another
    [2012] eKLR
  • Geoffrey Muthinja & another Vs Samuel Muguna Henry & 1756 others
    [2015] eKLR
Jurisdiction invoked
Article 22(3) of the Constitution (enforcement of Bill of Rights); Environment and Land Court

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, "Thuo v County Government of Kirinyaga & another (Environment and Land Constitutional Petition 5 of 2019) [2022] KEELC 2187 (KLR)", Case Analysis (2022). Petition dated 14th November 2019 (Kerugoya ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2187/eng@2022-03-18

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