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ELCDismissedELC Suit (Mombasa) — Plaint dated 26th November 2020 (suit number not stated in judgment)· [2022] KEELC 3050 (KLR)

Karomo & Seinfert (Suing as the Chairman and Secretary Respectively of the New Nyali Residents Association) & 3 others v Pamwhite Limited & another (Environment & Land Case 219 of 2020) [2022] KEELC 3050 (KLR)

Environment and Land Court of Kenya
5 May 2022
9,141 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear development disputes directly when the local planning appeal committee doesn't exist.

What this practically means

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Executive summary

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The plaintiffs, residents and property owners of New Nyali, Mombasa, sued to restrain the 1st Defendant from constructing the Festival City Shopping Centre on Plot MN/1/3156, contending that the development permission (approval P/2020/201) was issued by the Chief Officer Lands, Planning and Housing rather than the County Executive Committee Member, in breach of Sections 57(1), 58, 60 and 61 of the Physical and Land Use Planning Act, 2019, and without public participation. The 1st, 2nd, 3rd and 4th plaintiffs variously withdrew from the suit, leaving the 1st Defendant's preliminary objection dated 2nd June 2021 for determination. The objection contended lack of jurisdiction, premature resort to court without exhausting the County Physical and Land Use Planning Liaison Committee mechanism, that administrative decisions are reviewable only by judicial review, and that the plaint was defective. Framing five issues, Naikuni J held the objection raised pure points of law under Mukisa Biscuit. On exhaustion, although the Liaison Committee is the primary forum under Sections 61(3), 76 and 78 of the Act, unrebutted evidence established that the Mombasa Liaison Committee does not exist, a special circumstance under Section 93 justifying the ELC's jurisdiction. The court further held that the ELC, as a court of equal status with the High Court under Article 162(2)(b), may grant judicial review orders, and that the Constitution has collapsed the divide between judicial review and ordinary suits, so the plaint was not defective. The objection was dismissed, the suit directed to be determined within 180 days, and costs awarded in the cause.

Key legal issues

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01

Whether the 1st Defendant's notice of preliminary objection raised pure points of law under the Mukisa Biscuit threshold

Holding

The objection met the Mukisa Biscuit threshold as it raised pure points of law (jurisdiction, exhaustion and the proper form of proceedings) and would be determined at the preliminary stage.

Reasoning

Applying Mukisa Biscuit, Oraro v Mbaja and Attorney General v Andrew Mwaura Githinji, the court found the objection rested on jurisdiction, exhaustion of statutory remedies and form of pleadings — all questions of law requiring no ascertainment of disputed facts — and was therefore properly before the court for determination before full trial.

p. 10
02

Whether the Environment and Land Court has jurisdiction given the exhaustion requirement under the Physical and Land Use Planning Act, 2019

Holding

Although the County Physical and Land Use Planning Liaison Committee is the primary forum under Sections 61(3), 76 and 78 of the Act, the Mombasa Liaison Committee does not exist and has never been constituted, so the Environment and Land Court properly assumes jurisdiction under Section 93 of the Act; the preliminary objection on jurisdiction fails.

Reasoning

The court accepted that the exhaustion doctrine ordinarily directs disputes on development permissions to the County Liaison Committee (Section 61(3)), citing Speaker of National Assembly v Karume and Muthinja Kabiru. However, on unrebutted affidavit evidence of advocate Willis Oluga, the Mombasa Liaison Committee does not exist and has no registry. Following Munyao J in Lashad Mohamed Mubarak, non-constitution of the statutory body is a special circumstance justifying the court's inherent jurisdiction under Section 93 of the Act, in the spirit of Article 48 access to justice.

p. 15
03

Whether the Environment and Land Court has power to grant judicial review orders

Holding

Yes — as a superior court of equal status with the High Court, created under Article 162(2)(b) and Section 13 of the Environment and Land Court Act, the ELC can grant prerogative and judicial review orders.

Reasoning

Relying on Articles 22(1), 23(3) and 162(2)(b) of the Constitution and Section 13(7) of the Environment and Land Court Act, which empowers the Court to make any order including prerogative orders, the court rejected the argument that judicial review is exclusively vested in the High Court, holding the ELC is a specialized court of equal status with the High Court.

p. 16
04

Whether the Plaint is incurably defective because administrative decisions must be challenged by judicial review rather than by a plaint

Holding

No — the Constitution has collapsed the distinction between judicial review and ordinary actions; a plaint may combine substantive and review remedies.

Reasoning

Relying on Ongaya J in Peter Muchai Muhura v Teachers Service Commission and Majanja J in Geoffrey Otieno Ogola v Homa Bay Boys' High School, the court held that the 2010 Constitution opened all remedies in the same proceedings and that justice should be administered without undue regard to procedural technicalities under Article 159(2)(d). The plaint disclosed the claim with sufficient clarity and was not struck out.

p. 17

Legal principles established

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  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained.
  • Where a statutory dispute-resolution body has not been constituted, a court may properly assume jurisdiction rather than remit litigants to a non-existent forum.
  • The Environment and Land Court, being a superior court of equal status with the High Court, has power to grant judicial review orders.
  • The Constitution, 2010 collapsed the divide between judicial review and ordinary civil actions, permitting both substantive and review remedies in the same pleading.

Court orders

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  1. 1.The Court declared that it has jurisdiction over the instant matter and that the pleadings are properly before it
  2. 2.The Notice of Preliminary Objection dated 2nd June 2021 by the 1st Defendant is unmeritorious and is dismissed in entirety
  3. 3.The suit to be fixed and finally determined within 180 days from the date of the ruling; mention on 8th June 2022 for Pre-Trial Conference and case management under Order 11 of the Civil Procedure Rules, 2010
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Sections 1A, 3A, 27
  • Civil Procedure Rules, 2010Order 40 Rules 1 and 2; Order 11
  • Physical and Land Use Planning Act, No. 13 of 2019Sections 20, 2 (referenced), 57(1), 58(1), 58(7) and (8), 60, 61(3), 61(4), 71(a), 75, 76, 78, 93
  • County Governments Act, No. 17 of 2012Sections 2 and 45(4)
  • Constitution of Kenya, 2010Articles 22(1), 23(3), 24, 42, 48, 69, 70, 159, 162(2)(b), 176
  • Environment and Land Court Act, No. 19 of 2011Section 13
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013not specified

Cases cited (17)

  • Mukisa Biscuit Manufacturing Co Limited v West End Distributors Ltd
    [1969] E.A. 696
  • Charles Ogoti v Safaricom Limited & another
    2020 eKLR
  • Chembe Vuko v Nelson Kilimo & 2 Others
    2016 eKLR
  • Lashad Mubarak v County Government of Mombasa
    2020 eKLR
  • The Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Attorney General & another v Andrew Mwaura Githinji & another
    [2016] eKLR
  • Oraro v Mbaja
    [2005] eKLR
  • Lashad Mohamed Mubarak v County Government of Mombasa
    Mombasa Judicial Review No. 14 of 2019 [2020] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others
  • Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others
    [2020] eKLR
  • Samuel Kamau Macharia v KCB & 2 Others
    Civil Application No. 2 of 2011
  • Karisa Chengo
    Petition No. 5 of 2014
  • Peter Muchai Muhura v Teachers Service Commission
    [2015] eKLR, Cause 53 of 2014 (Formerly HCCC 84 of 2012 at Nyeri)
  • Geoffrey Otieno Ogola v Homa Bay Boys' High School and 2 Others
    [2014] eKLR
  • Judicial Review No. 14 of 2019, Lashad Mohammed, Depar Limited v County Executive Committee Member for Lands
    2021 eKLR
  • Angela Musimba & 7 Others v Fred Rabongo & 8 Others
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, No. 19 of 2011; Section 93 of the Physical and Land Use Planning Act, 2019

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Karomo & Seinfert (Suing as the Chairman and Secretary Respectively of the New Nyali Residents Association) & 3 others v Pamwhite Limited & another (Environment & Land Case 219 of 2020) [2022] KEELC 3050 (KLR)", Case Analysis (2022). ELC Suit (Mombasa) — Plaint dated 26th November 2020 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3050/eng@2022-05-05

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