Wambua & 2 others (Suing for themselves and on behalf of the other residents of Muumoni Village, Utithini Sub-Location, Masii Location, whose names appearing on the schedule attached herein) v County Government of Machakos & 3 others (Constitutional Petition E004 of 2022) [2023] KEELC 786 (KLR)
The bottom line
#Objecting to NEMA permits or county planning approvals? Kenya's courts require you to use the tribunal appeal routes first, or your petition will be struck out with costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petitioners flouted the doctrine of exhaustion by filing this Petition in this court.
- 2.Whether the Applicants have met the conditions for grant of temporary injunction.
Key legal issues
#Whether the Petitioners flouted the doctrine of exhaustion by filing the Petition directly in the ELC
Yes. The Petitioners' grievance is against NEMA's decision to grant licences and permits, and Section 129 of EMCA requires such grievances to be taken to the National Environment Tribunal first; the ELC's jurisdiction over NEMA decisions is appellate only under Section 130 of EMCA.
The court traced the exhaustion doctrine through Karume, Sound Equipment and United Millers, holding that even where superior courts have jurisdiction over profound questions of law, statutory dispute-resolution bodies must be given the first opportunity. Framing the claim as a constitutional petition cannot confer jurisdiction or oust that of a competent tribunal. The same logic applied to the change of user complaint, which lies before the County Physical and Land Use Planning Liaison Committee.
Whether the Applicants met the conditions for grant of a temporary injunction
Not determined on the merits; the application fell with the Petition, which was struck out for want of jurisdiction.
Because the court found the entire Petition premature and filed in a forum lacking jurisdiction at first instance, the injunction application was not adjudicated on the Giella v Cassman Brown principles but was disposed of by the striking out of the Petition.
Legal principles established
#- The ELC's jurisdiction over NEMA decisions is only appellate under Section 130 of EMCA; a party aggrieved by a NEMA decision must first appeal to the National Environment Tribunal under Section 129 of EMCA and cannot bypass it by framing the claim as a constitutional petition.
- Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed (doctrine of exhaustion).
- Appeals against a planning authority's decision to approve change of user lie before the County Physical and Land Use Planning Liaison Committee under Section 78 of the Physical and Land Use Planning Act, No. 13 of 2019.
Court orders
#- 1.The Petition is struck out with costs to the 1st, 2nd, 3rd and 4th Respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution as read with Section 13(1) of the Environment and Land Court Act
Relief refused
#Temporary injunction restraining the 3rd and 4th Respondents from constructing or continuing to construct a Funeral Home/Mortuary on parcel No. Masii/Utithini/333
The Petition was struck out for want of jurisdiction as the Petitioners should first have pursued the statutory appeal mechanisms before the National Environment Tribunal and the County Physical and Land Use Planning Liaison Committee.
Costs
Costs to the 1st, 2nd, 3rd and 4th Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It would therefore be irregular, unlawful and an undesirable shortcut for anyone aggrieved with the decision of NEMA to side step NET and rush to this court in the guise of a Constitutional Petition.
Therefore, I hold and find that as regards the impugned decision of NEMA, this court must exercise restraint and wait for the matter to be taken before the NET first.
The result is that the Petition is struck out with costs to the 1st, 2nd, 3rd and 4th Respondents.
In the premises therefore, the matters complained before this court, were brought to this court prematurely as this court lacks jurisdiction to determine them at this stage.
Issues in the judgment
#The judgment refers inconsistently to the 1st Respondent, at times identifying it as NEMA and at times as the County Government which approved change of user.
Inconsistent numbering of the Petitioners' land parcels (373/273/510) across paragraphs 3 and 13.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Wambua & 2 others (Suing for themselves and on behalf of the other residents of Muumoni Village, Utithini Sub-Location, Masii Location, whose names appearing on the schedule attached herein) v County Government of Machakos & 3 others (Constitutional Petition E004 of 2022) [2023] KEELC 786 (KLR)", Case Analysis (2023). Not stated in the judgment (Machakos ELC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/786/eng@2023-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.