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ELCStruck OutPetition dated 3.3.2022 (number not stated in judgment)· [2022] KEELC 2358 (KLR)

Saylesh Court Limited v County Government of Nairobi & 4 others (Environment & Land Petition E006 of 2022) [2022] KEELC 2358 (KLR)

Environment and Land Court
7 July 2022
LMLucy N. Mbugua
2,470 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a landowner's challenge to neighbouring building approvals because statutory appeal channels had to be used first.

What this practically means

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Executive summary

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The Petitioner, registered owner of LR No. 209/4516 comprising eight residential units, petitioned the Environment and Land Court challenging approvals granted by the 1st Respondent for a change of user from residential to offices and building plans on the adjacent LR No. 1870/IV/187, and an EIA licence issued by the 2nd Respondent to the 3rd-5th Respondents. The Petitioner alleged non-conformity with planning and zoning policies, absence of public participation, damage to unit no. 8, nuisance from a generator, and ignored NCA stop orders, and sought declarations of constitutional violations, cancellation of approvals, demolition and general damages. The 2nd Respondent and the 3rd-5th Respondents filed preliminary objections contending the suit was premature and an abuse of process because the Petitioner failed to exhaust remedies under Sections 125 and 129 of EMCA (appeals to the National Environment Tribunal) and Section 61(3) of the Physical and Land Use Planning Act, 2019 (appeals to the County Physical and Land Use Planning Liaison Committee). The Petitioner argued the issues, including constitutional interpretation, exceeded those fora. The court held that the substance of the dispute fell within statutory dispute resolution mechanisms and that litigants should not use constitutional questions to bypass them. Relying on Supreme Court authority on judicial restraint, it struck out the suit and application, with each party bearing their own costs. The Petitioner was directed to lodge grievances with the relevant statutory bodies.

Key legal issues

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01

Jurisdiction / doctrine of exhaustion

Holding

The suit is struck out because the Petitioner should first lodge grievances with the National Environment Tribunal and the County Physical and Land Use Planning Liaison Committee

Reasoning

The petition primarily challenges a change of user approval, building plan approvals and an EIA licence. Appeals against such decisions lie under Section 129 EMCA to the NET and under Section 61(3) of the Physical and Land Use Planning Act to the County Liaison Committee. Following Supreme Court precedent on judicial restraint, the court, though possessing land jurisdiction, required exhaustion of these statutory remedies before resort to the High Court/ELC.

p. 6

Legal principles established

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  • Litigants must exhaust statutorily mandated dispute resolution mechanisms and should not hide behind constitutional questions to avoid them
  • Where an alternative dispute resolution method is established by legislation, courts must exercise restraint and give deference to the statutory bodies

Court orders

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  1. 1.The suit and the application are struck out
  2. 2.Each party is to bear their own costs
Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court jurisdiction), EMCA and Physical and Land Use Planning Act, 2019 framework considered

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, "Saylesh Court Limited v County Government of Nairobi & 4 others (Environment & Land Petition E006 of 2022) [2022] KEELC 2358 (KLR)", Case Analysis (2022). Petition dated 3.3.2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2358/eng@2022-07-07

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