Karen Ngong View Estate Association v Odeck & 7 others
The bottom line
#A Karen residents' association lost its construction dispute because it went to court before using the statutory planning appeal process.
What this practically means
#Executive summary
#Key legal issues
#Applicability of the doctrine of exhaustion of remedies
The preliminary objection succeeds; the plaintiff should have pursued the appeal mechanism under sections 61(3) and 78(b) of the Physical and Land Use Planning Act before filing suit.
The court found the crux of the dispute concerned construction, change of user and an access road, i.e. land use/development under the Physical and Land Use Planning Act. Section 61(3) provides an appeal mechanism to the county liaison committee for aggrieved persons, including interested parties, and section 78(b) gives that committee jurisdiction to hear such appeals. Relying on Karume, Kibos, Eaton Towers and Hulbhai Gedi Abdille, the court held judicial restraint required the plaintiff to use those forums first.
Whether the injunctions sought were merited
Not determined on the merits; the applications were struck out for want of jurisdiction.
Having upheld the preliminary objection on exhaustion, the court did not reach the Giella v Cassman Brown test. It noted the plaintiff's complaint mechanisms under EMCA had also not been explored, and that the NCA suspension notice postdated the suit and had not been prosecuted under section 23(3)A.
Whether leave to amend pleadings should be granted
Not granted; the application of September 23, 2022 was struck out with the suit.
The application seeking leave to amend and interim restraints against the hotel, car wash and barbershop fell with the suit once the preliminary objection on jurisdiction was upheld.
Legal principles established
#- Where a statute prescribes a mechanism for redress of a grievance, that mechanism must be exhausted before resorting to the court
- Disputes over development permissions and land use fall within the province of the county physical and land use planning liaison committees
Court orders
#- 1.The 1st defendant's preliminary objection dated July 20, 2022 is allowed.
- 2.The suit and the plaintiff's applications dated May 24, 2022 and September 23, 2022 are struck out for want of jurisdiction.
- 3.Each party to bear their own costs of the suit.
- Jurisdiction invoked
- Articles 10, 22, 23, 42, 43, 47, 69 and 70 of the Constitution of Kenya 2010; section 3 of the Environmental Management and Co-ordination Act of 1999
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karen Ngong View Estate Association v Odeck & 7 others", Case Analysis (2022). Environment & Land Case E183 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14461/eng@2022-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.