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ELCDismissed· [2022] KEELC 2290 (KLR)

Biwott v Wingsdrive Community Based Organization & 3 others (Environment & Land Petition E005 of 2021) [2022] KEELC 2290 (KLR)

Environment and Land Court
17 May 2021
3,592 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A landowner who skipped the county's appeal process lost his constitutional challenge, showing Kenyan courts demand you exhaust statutory remedies first.

What this practically means

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Executive summary

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The Petitioner, registered owner of LR. No Kiplombe/Kuinet Block 2 (Rotich & Birech) 102, purchased in 2012, sought approval in March 2021 to build a three-storey block of bedsitters. The 1st Respondent, a registered community-based organization of plot owners operating a gated community with restrictive construction rules, objected, and the 2nd Respondent deferred the application on 24th March 2021 for non-conformity with zoning regulations. The Petitioner filed a constitutional petition seeking declarations that the denial was unconstitutional, compensation, prohibition, and mandamus compelling approval, arguing that zoning regulations could not supersede his Article 40 property rights and that he was discriminated against as a non-local. The Respondents countered that the Petitioner participated in formulating the restrictions, that the application was merely deferred, and that he should have appealed under sections 61(3) and 61(4) of the Physical and Land Use Planning Act. The court framed three issues: whether the petition was properly before the court, whether constitutional rights were violated, and whether reliefs were available. It held the petition premature because the Petitioner failed to exhaust the statutory appeal mechanism, and that his rights under Articles 40, 27, 47, 28 and 31 were not violated, since the right to property is subject to development control legislation and the allegations were generalised contrary to Anarita Karimi Njeru. The petition was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the petition was properly before the court given statutory appeal mechanisms

Holding

The petition was premature as the Petitioner did not exhaust the appeal mechanism under sections 61(3) and 61(4) of the Physical and Land Use Planning Act

Reasoning

The Act provides that a person aggrieved by a county executive committee member's decision may appeal to the County Physical and Land Use Planning Liaison Committee, and thereafter to the Environment and Land Court. The application was deferred, not rejected. The Petitioner did not use or seek exemption from this mechanism, so the constitutional petition was premature.

p. 5
02

Whether the Petitioner's right to property under Article 40 was violated

Holding

No violation; the right to property is subject to statutory development control

Reasoning

The right to own property must be enjoyed in accordance with statutes such as the Physical and Land Use Planning Act, and county governments must consider health, safety, amenity and proper planning under the third schedule. Deferral of the application for non-conformity with zoning regulations was lawful.

p. 6
03

Whether the Petitioner was discriminated against under Article 27

Holding

No discrimination proved; allegations lacked particulars

Reasoning

The Petitioner did not show that his neighbours were allowed to put up bedsitters while he was denied, nor expound on what he meant by 'local' and 'non-local'. The 1st Respondent was willing to allow a one-floor apartment with road-facing entry, so there was no differential treatment without reasonable distinction.

p. 7
04

Whether the Petitioner was denied a fair hearing under Article 47

Holding

No violation; the Petitioner was heard and reasons were given for the deferment

Reasoning

Members of the public, including the Petitioner, were invited to comment; the 2nd Respondent considered all comments and communicated the reason for deferment (non-conformity with zoning regulations) by letter dated 24th March 2021. Non-gazettlement of the zoning did not entitle the Petitioner to ignore development control.

p. 7
05

Whether Articles 28 and 31 were violated

Holding

No particulars given; no violation established

Reasoning

The Petitioner did not state how his dignity was violated. On privacy, visits to the property were consistent with the Act's requirement that no development proceed without approval, and the Petitioner admitted ferrying building materials before approval.

p. 7

Legal principles established

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  • Where a statute provides a dispute resolution mechanism, it must be exhausted before constitutional proceedings are invoked
  • The constitutional right to own property is subject to statutory development control regulations
  • A party alleging constitutional violation must plead with a reasonable degree of precision per Anarita Karimi Njeru

Court orders

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  1. 1.The petition is dismissed
  2. 2.Costs of the petition awarded to the Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2(4), 3, 10, 27, 28, 31, 40, 43, 47, 55, 57, 186
  • Physical and Land Use Planning Act No. 13 of 2019Sections 61(1), 61(3), 61(4), 80, 84; Third Schedule section 2(c)
  • Fair Administrative Action ActNot specified (exemption from internal mechanisms)
  • Physical Planning Act (repealed)Internal dispute resolution mechanism

Cases cited (4)

  • John Hurun Mwau v Peter Gastrow & 3 others
    (2014) eKLR
  • Whitehorse Investments Limited v Nairobi City County
    (2020) eKLR
  • Anarita Karimi Njeru v Attorney General
    (1979) KLR 154
  • Trusted Society Of Human Rights Alliance v Attorney General
    (2012) eKLR
Jurisdiction invoked
Constitutional petition under Article 2(4) and Articles 1, 3, 10, 28, 40, 43, 47, 55, 57 and 186 of the Constitution of Kenya, 2010; Environment and Land Court jurisdiction under the Physical and Land Use Planning Act No. 13 of 2019

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, "Biwott v Wingsdrive Community Based Organization & 3 others (Environment & Land Petition E005 of 2021) [2022] KEELC 2290 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2290/eng@2022-05-17

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