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ELCDismissedELC Case at Thika (number not stated in judgment)· [2022] KEELC 3052 (KLR)

Kahawa Sukari Residents & Plot Owners Welfare Association & another v Ngonge & another (Environment & Land Case 135 of 2021) [2022] KEELC 3052 (KLR)

Environment and Land Court
19 May 2022
2,013 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The 1st and 2nd plaintiffs sued the defendants at the Environment and Land Court, Thika, seeking to stop the defendants' construction of multi-dwelling residential houses in Kahawa Sukari Estate, allegedly in contravention of By-Law 242 designating it a controlled development area, and infringing residents' right to a clean and healthy environment under Article 70(1) of the Constitution. The defendants filed a preliminary objection dated 24/11/2021 on three grounds: lack of jurisdiction (the dispute being within the preserve of the County Liaison Committee), lack of locus standi, and prematurity/abuse of process. The defendants argued that under sections 72 and 78 of the Physical and Land Use Planning Act, a party aggrieved by an enforcement notice must appeal to the County Liaison Committee, with any further appeal to court lying only on a matter of law, and that they had complied with the physical planner's enforcement notice. The plaintiffs maintained the court's jurisdiction flowed from Article 162(2)(b) and Section 13 of the ELC Act, and that Articles 22 and 258 cured any defect in the association's capacity to sue. Applying the Mukisa Biscuit tests for preliminary objections, and the exhaustion doctrine from Speaker of National Assembly v Karume and Muthinja, the court held that the PLUPA mechanisms applied and that the plaintiffs should have pursued them first. The preliminary objection was upheld; the locus standi issue became moot; the interim orders of 18/11/2021 (earlier vacated on 7/12/2021 following the concession that the Kiambu County Liaison Committee had issued temporary injunctions) remained vacated; costs were awarded to the respondents.

Key legal issues

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01

Whether the ELC has jurisdiction over the suit given the dispute-resolution mechanisms under the Physical and Land Use Planning Act

Holding

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

Reasoning

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.

p. 5
02

Whether the plaintiffs have locus standi to sue

Holding

The issue was not determined; it became moot once the jurisdictional preliminary objection was upheld

Reasoning

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.

p. 5
03

Whether interim orders previously issued in the suit should stand

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated 24/11/2021 is upheld
  2. 2.The interim orders issued herein on 18/11/2021 were vacated (ordered on 7/12/2021 pursuant to the parties' concession)
  3. 3.Costs to the respondents

Authorities

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Legislation

  • Physical and Land Use Planning Act (PLUPA)section 78 (functions of County Physical and Land Use Planning Liaison Committee); also cited as section 78(b)
  • Physical and Land Use Planning Act (PLUPA)section 72(1)-(4)
  • Physical and Land Use Planning Act (PLUPA)section 75(1)(b)
  • Constitution of KenyaArticle 162(2)(b) & (3)
  • Constitution of KenyaArticle 13 of the ELC Act (Section 13 of the Environment and Land Court Act)
  • Constitution of KenyaArticle 70(1)
  • Constitution of KenyaArticles 22 and 258
  • Constitution of KenyaArticle 159
  • Societies Act (Cap 108)not specified
  • Environment and Land Court Act (ELCA)section 13(2)

Cases cited (6)

  • Immaculate Gicuku Mugo v Kiambu County Government
    [2021] eKLR
  • Trustees Kenya Redeemed Church & another vs. Samuel M'Obiya & 5 others
    [2011] eKLR
  • Kenya Breweries Ltd & anor v Washington O Okeya
    [2002] eKLR
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Geoffrey Muthinja & another vs. Samuel Muguna Henry & 1756 others
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(b) & (3) of the Constitution and Section 13 of the Environment and Land Court Act

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, "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.