Kahawa Sukari Residents & Plot Owners Welfare Association & another v Ngonge & another (Environment & Land Case 135 of 2021) [2022] KEELC 3052 (KLR)
The bottom line
#Residents who sued over a construction dispute lost because Kenyan law requires them to use planning committee appeals before going to court.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over the suit given the dispute-resolution mechanisms under the Physical and Land Use Planning Act
The court lacks jurisdiction at this stage; the PLUPA mechanism (County Liaison Committee, appeal to the National Liaison Committee, and appeal to court on a matter of law only) must first be exhausted
Section 72 PLUPA directs a person aggrieved by an enforcement notice to appeal to the County Physical and Land Use Planning Liaison Committee, with a further appeal to the High Court/ELC only on a matter of law. Following Speaker of the National Assembly v Karume and Muthinja, where a dispute resolution mechanism exists outside courts it must be exhausted first; courts are fora of last resort. The plaintiffs bypassed that mechanism, hence the preliminary objection on jurisdiction succeeds.
Whether the plaintiffs have locus standi to sue
The issue was not determined; it became moot once the jurisdictional preliminary objection was upheld
The defendants had argued that a society registered under the Societies Act (Cap 108) can only sue through its officials and that the 2nd plaintiff was an amorphous body without evidence of authority to sue. The plaintiffs relied on Articles 22 and 258 of the Constitution. The court did not resolve this because the jurisdictional objection disposed of the suit.
Whether interim orders previously issued in the suit should stand
The interim orders issued on 18/11/2021 were vacated following the parties' concession that the Kiambu County Liaison Committee had issued temporary injunctive orders
On 7/12/2021 counsel for both parties conceded that the Kiambu County Liaison Committee had issued temporary injunctive orders stopping the defendants' construction. In view of that concession, and since the court lacked jurisdiction to entertain the suit, the interim orders issued on 18/11/2021 were vacated.
Legal principles established
#- Where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed before invoking the court's jurisdiction
- A valid preliminary objection must raise a pure point of law, argued on the assumption that the facts pleaded are correct, and must dispose of the suit if successful
Court orders
#- 1.The preliminary objection dated 24/11/2021 is upheld
- 2.The interim orders issued herein on 18/11/2021 were vacated (ordered on 7/12/2021 pursuant to the parties' concession)
- 3.Costs to the respondents
- Jurisdiction invoked
- Article 162(2)(b) & (3) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kahawa Sukari Residents & Plot Owners Welfare Association & another v Ngonge & another (Environment & Land Case 135 of 2021) [2022] KEELC 3052 (KLR)", Case Analysis (2022). ELC Case at Thika (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3052/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.