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ELCPartially AllowedNot stated in the judgment (ELC suit, Kwale)· [2023] KEELC 284 (KLR)

Ochola v The County Government of Kwale & another (Environment & Land Case 48 of 2021) [2023] KEELC 284 (KLR)

Environment and Land Court
23 January 2023
5,829 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A court will not force a county to approve a building extension unless you can prove you actually filed a proper development application.

What this practically means

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Executive summary

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The plaintiff, proprietor of land parcel Kwale/Ukunda/3610, sued the County Government of Kwale and the National Police Service (2nd defendant, which did not enter appearance) seeking an order compelling the County Director of Physical Planning to issue development permission for the extension of his building (a fifth floor and penthouse), an order prohibiting the County from denying his right to develop the already approved four floors, and orders prohibiting harassment of his tenants and workers. The County defended the suit on the basis of its development-control powers under the Physical Planning Act (Cap 286, now repealed), denying that any application for extension was ever lodged and contending that the initial approval was issued by the structural engineer, not the physical planner. The court first upheld its own jurisdiction under Article 162(2)(b) of the Constitution, rejecting the separation-of-powers objection. It then found that no valid application for development permission for the extension had been made: payment of the form fees and a receipt did not amount to an application, and the plaintiff failed to produce the filled P.P.A.1 forms or call his agent. However, it found that development approval for the initial four floors had been granted, evidenced by the PPA2 Notification of Approval dated November 27, 2014. The court declined to compel issuance of development permission, noting the pending appeal before the Liaison Committee against enforcement notices and the doctrine of exhaustion, citing Speaker of the National Assembly v Karume. The suit succeeded only partially: the court ordered the 1st defendant to convene the Liaison Committee to determine the plaintiff's appeal within six months, and directed that each party bear its own costs.

Key legal issues

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01

Jurisdiction of the ELC over disputes on development approval

Holding

The ELC has original jurisdiction under Article 162(2)(b) over land use and physical planning disputes; separation of powers goes only to the orders the court may craft, not to jurisdiction

Reasoning

Jurisdiction was challenged on the basis that the court would usurp the Physical Planner's mandate. The court held that the fact that a court may not tread on certain areas does not oust jurisdiction; the court must merely be careful not to exercise powers it does not have when formulating orders.

p. 4
02

Whether an application for development permission for the extension was made

Holding

No application was made; payment of form fees and a receipt do not amount to an application, and the plaintiff did not produce the filled P.P.A.1 forms

Reasoning

Section 31 of the repealed Act requires an application in the prescribed form with plans. The plaintiff's agent was never called as a witness. The filled forms were not presented in court, and payment receipts alone cannot establish that an application was lodged.

p. 6
03

Whether development approval was obtained for the initial four floors

Holding

Yes; the PPA2 Notification of Approval dated November 27, 2014 conveyed approval by the County Government of Kwale for the proposed development

Reasoning

DW1 conceded that approval is notified through form PPA2 and never disowned the document. The defendant, being the repository of its own records, did not produce anything to show no such approval was issued. The approval stood notwithstanding the structural engineer's signature.

p. 9
04

Whether the approval for the extension was unreasonably withheld

Holding

No; since no valid application was lodged, there was no refusal to assess for reasonableness

Reasoning

The court found no basis to make a finding that approval was unreasonably denied or withheld, as the formal application process had not been triggered by the plaintiff.

p. 7
05

Whether the court should compel issuance of development permission despite the pending appeal to the Liaison Committee

Holding

No; the statutory appeal process is the proper avenue, and the Physical Planner should not participate given his pre-judgment

Reasoning

The Liaison Committee has wide powers of review including modifications, and the plaintiff expressed willingness to abide by conditions. The doctrine of exhaustion applies where a statutory remedy exists. The Physical Planner had pre-judged the matter and should be excluded from the process.

p. 9

Legal principles established

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  • Where there is a clear procedure for the redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed (exhaustion of statutory remedies)
  • Payment of an application-form fee and issuance of a receipt does not of itself constitute a development application under the Physical Planning Act
  • The burden of proving that a development application was made rests on the plaintiff, who must produce the application form itself

Court orders

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  1. 1.An order directed at the 1st Defendant to convene the relevant Liaison Committee for the determination of the Plaintiff's appeal and decide within a period of 6 months from the date of the judgment
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(1)(2)(b)
  • Environment and Land Court ActSection 13
  • Physical Planning Act, Cap 286 (now repealed)Sections 29, 30, 31, 32, 33, 38; Fourth and Fifth Schedules
  • Physical Planning and Development Act 2019Not specified

Cases cited (2)

  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • In the Matter of the National Land Commission
    (2015) eKLR
Jurisdiction invoked
Article 162(1)(2)(b) of the Constitution read with section 13 of the Environment and Land Court Act

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, "Ochola v The County Government of Kwale & another (Environment & Land Case 48 of 2021) [2023] KEELC 284 (KLR)", Case Analysis (2023). Not stated in the judgment (ELC suit, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/284/eng@2023-01-23

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