Muthithi Investments Limited & another v Nairobi City County Government (Environment & Land Petition 90 of 2018) [2022] KEELC 2397 (KLR)
The bottom line
#The court threw out Marble Arch Hotel's challenge to a Nairobi demolition notice because it skipped the mandatory statutory appeal to the county planning committee first.
What this practically means
#Executive summary
#Key legal issues
#Exhaustion of statutory remedies before approaching the court
The petition violated the doctrine of exhaustion because the petitioners did not appeal to the County Physical and Land Use Planning Liaison Committee as required by section 72 of the Physical and Land Use Planning Act, 2019
The enforcement notice was served on December 21, 2018 and the Act allowed an aggrieved person fourteen days to appeal to the Liaison Committee, with a further appeal to the court on a matter of law only. The petition was filed on December 24, 2018, within the appeal period, without lodging the statutory appeal. Following the Supreme Court's decision in United Millers Ltd v KEBS, the court had to defer to the statutory dispute-resolution body in the first instance.
Constitutional avoidance
The issues raised should have been addressed under the statutory dispute-resolution mechanisms and in an ordinary suit, not by way of a constitutional petition
The court invoked the Supreme Court's guidance in Communications Commission of Kenya v Royal Media Services that a court will not determine a constitutional issue where the matter may properly be decided on another basis. The enforcement notice concerned illegal development and occupation under the repealed Physical Planning Act, cap 286, matters resolvable under the statutory scheme; framing them as an article 40 property claim did not entitle the petitioners to constitutional adjudication.
Scope of the enforcement notice and the Liaison Committee's mandate
The enforcement notice made no reference to the authenticity of the petitioners' titles, so the appeal mechanism was available to them notwithstanding their objection about the committee's jurisdiction over title disputes
The petitioners had argued that the Liaison Committee lacked jurisdiction to determine disputes over the authenticity of titles, an allegation said to underlie the threatened demolition. The court observed that the notice itself raised only illegal development and occupation under section 30(1) and section 38(1) of the repealed Physical Planning Act, cap 286, and did not impugn title, so the statutory appeal route was open and unexhausted.
Burden of proof in an undefended petition
An undefended claim does not entitle the petitioner to automatic relief; the petition must be proved on the merits under sections 107 and 108 of the Evidence Act
The respondent filed no response, so the suit proceeded as an undefended claim. However, the court held that this did not warrant robotic grant of the orders sought; the petitioners still bore the evidential burden under sections 107 and 108 of the Evidence Act, as reinforced in Samson S Maitai v African Safari Club Limited, and the merits had to be considered.
Legal principles established
#- Where alternative dispute resolution mechanisms are established by statute, courts must exercise restraint and give deference to the statutory bodies in the first instance
- A court will not determine a constitutional issue where the matter may properly be decided on another basis (principle of avoidance)
- An undefended claim is not automatically granted; the claimant must still prove its case on the merits
Court orders
#- 1.The Petition is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Constitution of Kenya, 2010 (petition asserting violation of article 40 rights to property)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthithi Investments Limited & another v Nairobi City County Government (Environment & Land Petition 90 of 2018) [2022] KEELC 2397 (KLR)", Case Analysis (2022). Petition dated January 30, 2019 (amended). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2397/eng@2022-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.