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ELCStruck OutEnvironment & Land Petition E039 of 2022· [2022] KEELC 15120 (KLR)

Sikalieh (Chairman) Suing on behalf of Karen Langata District Association v Nairobi County Government & 3 others

Environment and Land Court
24 November 2022
OAO. A. Angote
6,161 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a Karen residents' constitutional petition because they had to first use the statutory planning complaint process.

What this practically means

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Executive summary

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The 3rd and 4th Respondents raised a preliminary objection against the Petitioner's Petition and Notice of Motion of 29th September 2022, which challenged the 1st and 2nd Respondents' approval of development permission for the 3rd and 4th Respondents to construct 12 houses on L.R No 192/14, Karen. The objection had four limbs: lack of jurisdiction under Sections 76, 78 and 80 of the Physical and Land Use Planning Act, 2019; res judicata by reason of a Committee determination of 3rd March 2022; that the suit was a disguised appeal; and that it was an abuse of process offending exhaustion and constitutional avoidance. The Petitioner countered that the Petition raised genuine constitutional questions on Articles 10, 35, 42 and 69 and breach of a prior judgment in ELC Petition 40 of 2020. The court held the jurisdiction, exhaustion and constitutional avoidance limbs were pure questions of law and properly a preliminary objection, but the 'disguised appeal' limb required factual interrogation and failed. The res judicata plea failed because the Committee's determination was not a final determination of the issues. However, the court found that the grievances, being breaches of the Physical and Land Use Planning Act and the Recognition Agreement, were canvassable in an ordinary civil suit, raised no constitutional question, and offended the doctrines of exhaustion and constitutional avoidance. The Petition and Motion were struck out with costs to the 3rd and 4th Respondents.

Key legal issues

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01

Competence of the preliminary objection

Holding

The objection on jurisdiction, exhaustion and constitutional avoidance is a pure question of law and properly a preliminary objection; the 'disguised appeal' limb is not, as it requires factual interrogation

Reasoning

The court applied Mukisa Biscuits and Oraro v Mbaja: a preliminary objection must be a pure point of law not dependent on ascertainment of facts. Jurisdiction, exhaustion and constitutional avoidance can be determined from the pleadings alone, so those limbs are competent. Whether the Petition is a 'disguised' appeal requires factual interrogation and fails as a preliminary point.

02

Res judicata

Holding

The plea fails: the Committee's Notification of Determination did not finally determine the issues between the parties as required conjunctively by Section 7 of the Civil Procedure Act

Reasoning

Applying the IEBC v Maina Kiai elements, the court found that although the parties were similar, the Complaint before the Committee was not finally determined - the Committee only held that the appellants had satisfied the storm water drainage condition. The res judicata limb therefore fell short.

p. 7
03

Exhaustion of remedies and constitutional avoidance

Holding

The Petition and Motion, though couched in constitutional language, essentially challenge development approvals under the Physical and Land Use Planning Act and a Recognition Agreement; the statutory Committee mechanism must be exhausted first

Reasoning

Sections 61(3), 76, 78 and 80 of the Physical and Land Use Planning Act provide a statutory complaint and appeal mechanism to the County Liaison Committee. The grievances, being breaches of the Act and contract, can be canvassed in an ordinary suit; no constitutional question or remedy is sought. Constitutional avoidance and the exhaustion doctrine therefore divest the court of jurisdiction.

p. 11

Legal principles established

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  • Where legislation has been enacted to give effect to a constitutional right, a litigant cannot found a cause of action directly on the Constitution without challenging the legislation
  • A litigant must exhaust statutory alternative dispute resolution mechanisms before invoking the court's jurisdiction
  • A party cannot confer jurisdiction on a court or oust jurisdiction of a competent organ through artful drafting of pleadings

Court orders

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  1. 1.The Petition and the Notice of Motion dated 29th November, 2022 are struck out
  2. 2.Costs to the 3rd and 4th Respondents

Authorities

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Legislation

  • Physical and Land Use Planning ActSections 2, 61(3), 76, 78, 80(3)
  • Civil Procedure ActSection 7
  • Constitution of Kenya, 2010Articles 10, 35, 42, 69(1)(d), 69(2), 159, 162(2)

Cases cited (26)

  • Owners of the Motor Vessel “Lilian S” vs Caltex Oil (Kenya) Limited
    [1989] KLR 1

    Jurisdiction is everything; a court downs its tools once it finds it lacks jurisdiction

  • Kibos Distillers & 4 Others vs Benson Ambuti & 3 Others
    [2020] eKLR

    A litigant cannot confer jurisdiction by drafting; multifaceted claims do not confer jurisdiction

  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank & 2 Others
    Application No 2 of 2011

    Alternative statutory remedies should be pursued first

  • Benard Murage vs Fine Serve Africa Limited & 3 Others
    [2015] eKLR

    Where there is an alternative statutory remedy, it should be pursued first

  • Mercy Wangari Buku vs National Environmental Authority & 3 Others
    [2021] eKLR

    Exhaustion doctrine - court as last resort

  • Geoffrey Muthinja Kabiro vs Samuel Muguna Henry
    [2015] eKLR

    Dispute resolution mechanisms outside courts must be exhausted before invoking court jurisdiction

  • Issa Ahmed & 15 Others vs Mohamed Al-Sawae
    [2021] eKLR

    Plaintiff ought to have exhausted the Physical Planning and Land Use Act mechanism before engaging the ELC

  • Mui Coal Basin Local Community & 15 Others vs Permanent Secretary, Ministry of Energy & 17 Others
    [2017] eKLR

    In-depth discussion of the dispute resolution system in the country

  • KKB vs SCM & 5 Others
    (Constitutional Petition No 014 of 2020) KEHC 289 (KLR)

    Constitutional avoidance - declining matters resolvable through other mechanisms

  • Eric Kiprotich Soi & Another vs Director General Nairobi Metropolitan Services
    [2022] eKLR

    Constitutional avoidance doctrine

  • Paolo Di Maria & 5 Others vs Alice M Kuria & 5 Others
    [2021] eKLR

    ELC jurisdiction over environmental rights violations (cited by Petitioner)

  • Dominic G Ng’ang’a & Anor vs Director General Environmental Management Authority & 4 Others
    [2020] eKLR

    ELC jurisdiction over clean and healthy environment claims (cited by Petitioner)

  • Taib Investments Limited vs Fahim Salim Said & 5 Others
    [2016] eKLR
  • Mohamed Said vs County Council of Nandi
    [2013] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd. vs West End Distributors
    (1969) EA 696

    Definition and threshold of a preliminary objection

  • Hassan Ali Joho & Another vs Suleiman Said Shahbal & 2 Others
    Petition No. 10 of 2013, [2014] eKLR

    Re-affirming the Mukisa Biscuits threshold for preliminary objections

  • Kakuta Maimai Hamisi vs Peris Pesi Tobiko & 2 Others
    [2013] eKLR

    Centrality of jurisdiction as a threshold question

  • The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others
    Nairobi CA Civil Appeal No. 105 of 2017, [2017] eKLR

    Conjunctive elements of res judicata and its rationale

  • John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR

    Rationale behind res judicata - finality and stability of judgments

  • Oraro vs Mbaja
    (2005) KLR 141

    A preliminary objection must not be blurred by factual details requiring proof

  • William Odhiambo Ramogi & 3 others vs Attorney General & 4 Others
    [2020] eKLR

    Exhaustion doctrine and its exceptions, including fundamental rights not mere bootstraps

  • Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others
    [2018] eKLR

    Statutory provisions ousting court jurisdiction must be construed restrictively

  • Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others
    [2014] eKLR

    Principle of constitutional avoidance

  • Sumayya Athmani Hassan vs Paul Masinde Simidi & Another
    [2019] eKLR

    Cannot found cause of action directly on Constitution where legislation gives effect to the right

  • Revital Healthcare (Epz) Limited & Another vs Ministry of Health & 5 Others
    [2015] eKLR

    Courts decline constitutional questions where remedy exists under other provisions

  • John Harun Mwau vs Peter Gastrow & 3 Others
    [2014] eKLR

    Where a matter can be disposed of without recourse to the Constitution, it should not be invoked

Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court); objection based on Sections 76, 78(a) and (b) and 80(3) of the Physical and Land Use Planning Act, 2019

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Sikalieh (Chairman) Suing on behalf of Karen Langata District Association v Nairobi County Government & 3 others", Case Analysis (2022). Environment & Land Petition E039 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15120/eng@2022-11-24

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