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ELCDismissedPetition dated October 6, 2021 (Nairobi ELC)· [2022] KEELC 3205 (KLR)

Ngei II Estate Residents’ Association (suing Through Mauleed Majeed Kipkoech Jasho as the Registered Official and Chairperson of the Association)) v Nairobi City County & 5 others; Broadlands Limited & 6 others (Interested Parties) (Environment & Land Petition E037 of 2021) [2022] KEELC 3205 (KLR)

Environment and Land Court
2 June 2022
11,307 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~45 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out residents' petition blocking development on Ngei II Estate open land because the association couldn't prove it was registered and hadn't used statutory remedies first.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Oguttu Mboya J) disposed of three interlocutory matters simultaneously: the petitioner association's notice of motion dated 12 October 2021 seeking interim conservatory orders over Nairobi Block 72 (Ngei II Estate); the 1st interested party's notice of motion dated 8 November 2021 seeking variation of conservatory orders, her removal from the suit and striking out of the petition; and the 1st respondent's preliminary objection on jurisdiction under sections 61(3) and 61(4) of the Physical and Land Use Planning Act, 2019. The petitioner, an association of Ngei II Estate residents, challenged the alienation and allocation of hitherto open grounds within the estate to private developers and the issuance of development licences. The court framed four issues: locus standi, jurisdiction, res judicata and the threshold for conservatory orders. It held the petitioner failed to prove its registration - the certificate produced related to a different association - leaving it non-existent in law and devoid of locus standi. Although the court has jurisdiction over land use planning disputes, it declined to exercise it because the petitioner failed to exhaust the County Physical and Land Use Planning Liaison Committee mechanism. The petition's limb seeking cancellation of the interested parties' titles (save the 2nd and 3rd) was also res judicata, having been determined in ELC No. 450 of 2008 and ELC No. 363 of 2008. Further, the petitioner established no legal or equitable interest in the suit property, hence no prima facie case for conservatory orders. The preliminary objection and the 1st interested party's application were allowed; the petitioner's application dismissed; the petition struck out; interim conservatory orders vacated; and, given the public interest character of the litigation, each party ordered to bear its own costs.

Key legal issues

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01

Locus standi of the petitioner association

Holding

Petitioner lacked locus standi because it failed to prove its registration; the certificate produced related to a different entity, Ngei Phase Two Langata Residents Association

Reasoning

Under article 22(2)(d) an association may sue in its own name, but it must exist in law. The certificate of registration availed related to a distinct association, and no evidence of the petitioner's registration or of the deponent's election as its official was produced. Locus standi is a threshold question that must be proven at the onset.

p. 14
02

Jurisdiction and the exhaustion doctrine under the Physical and Land Use Planning Act

Holding

The court has jurisdiction over land use planning disputes under section 13 of the ELC Act, but declined to exercise it because the petitioner failed to exhaust the County Physical and Land Use Planning Liaison Committee mechanism under section 61(3)

Reasoning

The court accepted that it possesses original and appellate jurisdiction over land use planning and development approvals. However, where statutory dispute resolution organs exist, they must be accessed first. The multifaceted nature of the claims does not confer original jurisdiction where the central complaints belong elsewhere.

p. 17
03

Res judicata

Holding

The limb of the petition seeking cancellation of titles of the interested parties (save the 2nd and 3rd) was res judicata, having been determined in ELC No. 450 of 2008 and ELC No. 363 of 2008

Reasoning

The legality of the interested parties' titles was litigated and determined in prior suits in which officials/members of the petitioner's association were parties. Adding statutory bodies as additional parties does not change the character of the suit; the petition effectively sought to revisit determined issues, barred by section 7 of the Civil Procedure Act.

p. 19
04

Threshold for conservatory orders

Holding

No conservatory orders issued because the petitioner established no legal or equitable interest in the suit property and therefore no prima facie case

Reasoning

The petitioners produced no evidence of title over the suit property. The parcels left open by the National Housing Corporation due to topography were not shown to be held in trust for residents or for recreation. Long user of open grounds confers no rights to defeat registered titles.

p. 21

Legal principles established

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  • A registered association or society is competent to commence a constitutional petition in its own name or through a registered official under article 22 of the Constitution
  • An association invoking article 22 must prove its existence and registration; an unregistered, non-existent association lacks locus standi
  • Where a statutory dispute resolution mechanism exists, a litigant must exhaust it before approaching the court; the exhaustion doctrine applies even where claims are multifaceted
  • The doctrine of res judicata applies to constitutional petitions
  • Merely using open land does not confer rights to defeat a registered owner's title or to obtain conservatory orders

Court orders

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  1. 1.The preliminary objection dated December 3, 2021 is allowed
  2. 2.The notice of motion application dated 8th November 2021 is allowed
  3. 3.The notice of motion application dated October 12, 2021 is dismissed
  4. 4.The Petition dated October 6, 2021 is struck out
  5. 5.The Interim Conservatory Orders granted herein are vacated
  6. 6.Each party shall bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1), 22(2), 23, 40, 159, 162(2)(b)
  • Physical and Land Use Planning Act No. 13 of 2019Sections 61(3) and 61(4)
  • Environment and Land Court Act, 2011Sections 13(1), 13(2), 13(3)
  • Civil Procedure Act, Chapter 21Section 7
  • Societies Act, Chapter 108not specified
  • Land Registration Act, 2012Sections 24 and 25
  • Environment Management and Co-ordination Act (EMCA)Section 130
  • Physical Planning ActSections 15, 19 and 38
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 3(8)

Cases cited (29)

  • Center For Rights Education & Awareness (CREAW) & Another v The Speaker of National Assembly & 2 Others
    (2017) eKLR
  • Law Society of Kenya v Office of The Attorney General & Another; Judicial Service Commission (Interested Parties)
    (2020) eKLR
  • Meme v Republic
    (2004) 1 E.A. 124
  • John Harun Mwau v Simone Haysom & 2 Others; Attorney General & Others (interested parties)
    (2021) eKLR
  • Mumo Matemu versus Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Michael Osundwa Sakwa versus The Chief Justice & President of The Supreme Court of Kenya & another
    (2016) eKLR
  • Omondi v National Bank Kenya Ltd & another
    (2001) EA 177
  • John Florence Maritime Services Ltd v Cabinet Secretary, Transport and Infrastructure & 3 Others
    (2021) eKLR
  • Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 Others
    (2012) eKLR
  • Speaker of the National Assembly versus Hon James Njenga Karume
    (2008) 1 KLR 425
  • Albert Chaurembo Mumba & 7 Others versus Maurice Munyao & 148 Others
    (2019) eKLR
  • Geoffrey Ndirangu & 5 Others versus Chairman of Mariakani Jua Kali Association & 2 Others
    (2005) eKLR
  • Independent Electoral and Boundaries Commission versus Maina Kiai & 5 others
    (2017) eKLR
  • Shimmers Plaza Ltd v National Bank of Kenya Ltd
    (2015) eKLR
  • Voi Jua Kali Association vs Sange and others
    (2002) 2 KLR 474
  • Law Society of Kenya vs Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000
  • Alfred Njau and others vs City Council of Nairobi
    (1982) KAR 229
  • Bethwell Allan Omondi Okal v Telkom (K) Ltd (Founder) & 9 others
    [2017] eKLR
  • International Centre for Policy and Conflict & 4 others vs The Hon. Uhuru Kenyatta and others
    Petition No. 552 of 2012
  • Alphonse Mwangemi Munga & 10 Others v African Safari Club Ltd
    [2008] eKLR
  • Narok County Council case v Trans Mara County Council
    [2000] 1 EA 161
  • Kones vs Republic & Another ex parte Kimani wa Nyoike & 4 Others
    (2008) 3 KLR (EP)
  • Francis Mutuku vs Wiper Democratic Movement - Kenya & others
    [2015] eKLR
  • David Ochieng Babu v Lorna Achieng Ochieng & 2 others
    [2017] eKLR
  • Geoffrey Muthinja & Another Vs Emmanuel Muguna Henry & 1756 others
    [2015] eKLR
  • Kibos Distillers Limited & 4 Others v Benson Ambuti & 3 others
    (2020) eKLR
  • John Florence Maritime Services Limited & another versus Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Henderson v Henderson
    [1843] 67 ER 313
  • Platinum Distillers Limited v Kenya Revenue Authority
    [2019] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Environment and Land Court Act, section 13(1) and (2)

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, "Ngei II Estate Residents’ Association (suing Through Mauleed Majeed Kipkoech Jasho as the Registered Official and Chairperson of the Association)) v Nairobi City County & 5 others; Broadlands Limited & 6 others (Interested Parties) (Environment & Land Petition E037 of 2021) [2022] KEELC 3205 (KLR)", Case Analysis (2022). Petition dated October 6, 2021 (Nairobi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3205/eng@2022-06-02

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