Abdalla & 6 others v Khansa Developers Limited & 3 others (Environment and Land Constitutional Petition 16 of 2022) [2022] KEELC 3486 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear land planning disputes when no Liaison Committee exists, but environmental assessment claims must go to the environment tribunal.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was properly raised as a pure point of law
The objection was properly raised as it raised pure questions of law on jurisdiction and exhaustion that could terminate the petition
Applying Mukisa Biscuit Manufacturing and later Supreme Court pronouncements, the court found the objection raised serious pure issues of law (jurisdiction, exhaustion) capable of terminating the petition without ascertaining contested facts, thus passing the propriety test.
Whether the court has jurisdiction over the petition
Yes - section 72(3) and (4) PLUPA applies only to persons aggrieved by enforcement notices; the petitioners were not served with any enforcement notice, and since the Liaison Committee was never constituted, section 93 of PLUPA vests jurisdiction in the ELC
The court found the Liaison Committee for Mombasa County had never been constituted, a fact unrebutted by the respondents. Under section 93 PLUPA, disputes before establishment of such committees are heard by the ELC. The petition also raised enforcement of constitutional rights under articles 69 and 70, matters reserved to the High Court and courts of equal status.
Whether the doctrines of exhaustion and constitutional avoidance barred the petition
Not applicable to the constitutional petition; the petition was precisely pleaded under Anarita Karimi and thus not a bootstrap, though EIA/audit reliefs were reserved to the NET
The petition particularised the rights infringed (articles 42, 10, 69(d), 47, 40) and the manner of infringement with reasonable precision, so it was not a mere pretext. Enforcement of fundamental rights can only be determined by the High Court and courts of equal status. However, following Kibos Distillers, matters of fresh EIA and environmental audit belong to the NET.
Legal principles established
#- Where the County Physical and Land Use Planning Liaison Committee has not been established, disputes relating to physical and land use planning fall to be heard and determined by the Environment and Land Court under section 93 of PLUPA
- A suit primarily seeking to enforce fundamental rights and freedoms, properly pleaded with precision, is not barred by the doctrine of exhaustion
Court orders
#- 1.Declaration that the court has jurisdiction to hear and determine the notice of motion dated May 5, 2022 and the main petition dated May 5, 2022 under section 93(1) of PLUPA as long as no Liaison Committee is established for the County Government of Mombasa
- 2.Declaration that the doctrine of exhaustion and constitutional avoidance is not applicable to the main petition
- 3.Declaration that all matters pertaining to issuance of fresh EIA, Environmental Audit and issuance of a report under prayers (b)(iv) & (v) be dealt with and finalized by the National Environment Tribunal within fourteen (14) days, to that extent the preliminary objection be and is hereby allowed
- 4.Notice of motion application and main petition to be heard and finally disposed of within ninety (90) days from the date of the ruling
- 5.Mention on October 12, 2022 for ascertainment of compliance and further orders
- 6.Interim conservatory orders granted extended to October 12, 2022
- 7.Each party to bear their own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and sections 4 and 13 of the Environment and Land Court Act, No 19 of 2011; section 93 of the Physical and Land Use Planning Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdalla & 6 others v Khansa Developers Limited & 3 others (Environment and Land Constitutional Petition 16 of 2022) [2022] KEELC 3486 (KLR)", Case Analysis (2022). ELC Petition (Mombasa) E016 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3486/eng@2022-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.