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ELCOtherNot stated in judgment· [2022] KEELC 3599 (KLR)

Karanja v County Government Of Kilifi (Environment & Land Case 92 of 2021) [2022] KEELC 3599 (KLR)

Environment and Land Court
18 July 2022
MOMA Odeny
1,610 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If your approved development is demolished, Kenya's High Court land courts can hear your compensation claim directly without first going to a county planning committee.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Malindi (MA Odeny, J) determined a notice of preliminary objection dated October 29, 2021 in which the defendant contended that the court lacked jurisdiction because the plaintiff had failed to exhaust the dispute resolution mechanisms under the Physical and Land Use Planning Act, No 13 of 2019, that the suit was defective, premature, frivolous and an abuse of process, and sought dismissal with costs. The defendant argued that the plaintiff had been served with a notice to stop construction on June 24, 2021, with a right of appeal to the County Physical and Land Use Planning Liaison Committee under section 72(3) of the Act, which he did not pursue. The plaintiff countered that his development application had been approved, that approval had not been rescinded and no communication of any rescission was made, that no such notice was proved to have been served, and that his suit concerned the demolition of approved construction and special damages, matters outside the Liaison Committee's remit. The court held that while the Act contains elaborate dispute resolution mechanisms, the plaintiff was not challenging a planning decision but seeking redress for demolition after approvals had been secured, wrongs the Liaison Committee cannot hear. Since the objection also depended on contested facts, it failed the Mukisa Biscuit threshold of being a pure point of law. The preliminary objection was dismissed with costs on July 18, 2022.

Key legal issues

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01

Whether the court lacks jurisdiction for failure to exhaust alternative dispute resolution mechanisms under the Physical and Land Use Planning Act

Holding

The preliminary objection fails; the plaintiff's suit is for demolition and special damages after development approval, not a challenge to a planning decision, so the Liaison Committee route does not apply

Reasoning

The court accepted that the Physical and Land Use Planning Act contains elaborate dispute resolution mechanisms, including the County Physical and Land Use Planning Liaison Committee under section 72(3). However, that forum addresses challenges to planning decisions such as denial of development permission. Here the plaintiff's application was approved, so the suit complains of demolition of the approved construction and special damages, which the Liaison Committee cannot hear. The objection also depended on disputed facts (whether a notice was served), disqualifying it as a preliminary objection.

p. 4
02

Whether the preliminary objection meets the Mukisa Biscuit threshold

Holding

It does not, because it is not a pure point of law and was dismissed with costs

Reasoning

Citing Mukisa Biscuit Manufacturing Co Ltd v West-end Distributors Ltd, the court reiterated that preliminary objections must rest solely on points of law. The defendant's objection required determination of factual questions, including whether a stop-construction notice was served on the plaintiff, which the plaintiff denied. Since resolution of the objection depended on contested facts, it could not be sustained as a preliminary objection and had to be dismissed.

p. 4

Legal principles established

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  • A plaintiff who obtained development approval and sues for demolition of the approved construction is not challenging a decision of the planning authority and need not first go to the County Physical and Land Use Planning Liaison Committee
  • Preliminary objections must be pure points of law, not factual

Court orders

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  1. 1.The preliminary objection dated October 29, 2021 is dismissed with costs

Authorities

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Legislation

  • Physical and Land Use Planning Actsection 72(3)
  • Physical and Land Use Planning Actsection 3(e)
  • Physical and Land Use Planning Actsection 61
  • Physical and Land Use Planning Actsection 61(3)
  • Constitution of Kenya, 2010Article 159(2)(c)
  • Civil Procedure RulesOrder 21(1)

Cases cited (5)

  • Mukisa Biscuit Manufacturing Co Ltd v West-end Distributors Limited
    (1969) EA 696
  • Samson Chembe Vuko v Nelson Kilumo & 2 others
    [2016] eKLR
  • Samuel Macharia Kamau v KCB & others
    [2012] eKLR
  • Dickson Mukwe Lukeine v Attorney General & 4 others
    [2012] eKLR
  • Angela Mbugua & 4 others v KO Holdings Ltd & 2 others
    [2020] eKLR
Jurisdiction invoked
Article 162(2) Constitution (Environment and Land Court) - implied; preliminary objection raised under the Physical and Land Use Planning Act, No 13 of 2019

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, "Karanja v County Government Of Kilifi (Environment & Land Case 92 of 2021) [2022] KEELC 3599 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3599/eng@2022-07-18

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