Moshi & 2 others (Suing as Officials of the Forest Court Residents Welfare Association) v Gathogo & another; Membley Park Residents Association (MEPRA) (Interested Party) (Environment & Land Case E139 of 2021) [2022] KEELC 2754 (KLR)
The bottom line
#A Kenyan court ruled that disputes over approved property developments must first go to county liaison committees, not straight to the Environment and Land Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC is the proper primary forum for a challenge to approved developments contrary to zoning regulations
No - the county physical and land use planning liaison committee has primary jurisdiction; the ELC has only appellate jurisdiction once the committee determines the dispute
The court held that since the impugned developments had been approved by the county's physical planning directorate, the plaintiffs' suit was essentially a challenge to those approvals. Parliament vested primary jurisdiction over such disputes in the liaison committee under section 61(3) of the Physical and Land Use Planning Act 2019, with appellate jurisdiction in the ELC under section 61(4). The court therefore lacked jurisdiction to entertain the suit at first instance.
Whether the suit should be struck out for want of jurisdiction
No - the court remitted the dispute to the liaison committee instead of striking it out
Following the Supreme Court's advisory in Benson Ambuti Adega v Kibos Distillers Ltd, the court held that where it lacks jurisdiction it should issue appropriate remedies including remitting the matter to the appropriate institution. Since the plaintiffs had no prior knowledge of the approvals, striking out would be unjust; the dispute was remitted instead.
Whether the unsigned first development approval was valid
The court noted that the exhibited approval bore a QR code, which it regarded as an accepted electronic means of authenticating documents
The plaintiffs faulted the first approval on the ground that it was neither signed nor stamped. The court observed that the exhibited copy bore a quick response (QR) code, and that QR codes have lately become accepted electronic signatures for verifying or authenticating documents. The 2nd defendant had not challenged or disowned the approvals attributed to it. This observation was made in the context of the jurisdictional inquiry only.
Legal principles established
#- A court must determine a jurisdictional objection at the earliest opportunity and, where jurisdiction is lacking, cannot take any further step in the proceedings
- Primary jurisdiction over physical and land use planning disputes vests in the county physical and land use planning liaison committee, with the Environment and Land Court having appellate jurisdiction
- Where a court finds it lacks jurisdiction, it should remit the matter to the appropriate institution rather than simply strike it out
Court orders
#- 1.The 2nd defendant's preliminary objection and the jurisdiction limb of the 1st defendant's preliminary objection upheld
- 2.The dispute remitted to the Kiambu county physical and land use liaison committee for adjudication and/or disposal within the framework of the Physical and Land Use Planning Act 2019
- 3.No order as to costs of the proceedings in this court
- Jurisdiction invoked
- Sections 61(3) and 61(4) of the Physical and Land Use Planning Act 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moshi & 2 others (Suing as Officials of the Forest Court Residents Welfare Association) v Gathogo & another; Membley Park Residents Association (MEPRA) (Interested Party) (Environment & Land Case E139 of 2021) [2022] KEELC 2754 (KLR)", Case Analysis (2022). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2754/eng@2022-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.