Mbesa Investments Limited v County Government of Mombasa; Bayusuf & another (Interested Parties)
The bottom line
#Kenya's Environment and Land Court ruled that challenges to county enforcement notices are not time-barred where no County Liaison Committee exists.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objections met the threshold of a proper preliminary objection
The objections were properly filed as they raised serious and pure issues of law capable of determination before full trial
Applying Mukisa Biscuits and Black's Law Dictionary, the court held that a preliminary objection must be a pure point of law not dependent on ascertainment of facts or exercise of discretion. The issues raised - limitation and jurisdiction - were pure questions of law, not fanciful or remote, and were therefore properly raised at the preliminary stage.
Whether the Petition was time barred under Section 72(3) of the Physical and Land Use Planning Act
The Petition was not time barred; Section 72(3)'s 14-day timeline applies only to appeals to the County Liaison Committee, which does not exist in Mombasa, and Section 93 imposes no timeline
Both the Respondent and the 1st Interested Party admitted that no County Physical and Land Use Planning Liaison Committee exists in Mombasa. The court agreed with the Petitioner and 2nd Interested Party that the timelines in Section 72(3) govern appeals to the Liaison Committee only, and that courts cannot read into Section 93 timelines Parliament did not enact. Upholding the objection would be draconian.
Whether the Petition was time barred under Section 9(2) of the Law Reform Act (six-month limit for certiorari)
Section 9 of the Law Reform Act was inapplicable; judicial review remedies in a constitutional petition are anchored in Articles 22, 23 and 47 and the Fair Administrative Action Act, not the Law Reform Act
Relying on the Child Welfare Society line of authority, the court accepted that Kenya has one, not two mutually exclusive systems of judicial review, and that prerogative orders may be sought in constitutional petitions under Article 23. The six-month limitation in Section 9(2) of the Law Reform Act applies to judicial review applications under that Act, not to constitutional petitions.
Whether the Environment and Land Court has jurisdiction over the Petition
The ELC has jurisdiction; the dispute concerns alleged violation of rights under Articles 43 and 47 arising from the Enforcement Notice, and Section 93 of the Physical and Land Use Planning Act clothes the ELC with jurisdiction
The court held that although the High Court and ELC may have concurrent jurisdiction, the ELC is properly clothed with jurisdiction here: the dispute relates to land use planning under Section 93 of the Physical and Land Use Planning Act, and the Enforcement Notice threatened accrued economic rights of the Petitioner and construction workers protected under Article 43, engaging Article 165(3)(b)-type rights claims. The jurisdictional objection was therefore baseless.
Legal principles established
#- Where no County Physical and Land Use Planning Liaison Committee exists, Section 93 of the Physical and Land Use Planning Act confers jurisdiction on the Environment and Land Court and the 14-day timeline in Section 72(3) does not apply
- A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct
- Where the High Court and the Environment and Land Court have concurrent jurisdiction, the court with the more abundant jurisdiction on the particular issue should entertain the matter
Court orders
#- 1.The two Notices of Preliminary Objection dated 28th July, 2022 by the 1st Interested Party and 4th August, 2022 by the Respondent were found not merited and were overruled in their entirety
- 2.The Notice of Motion application dated 20th June, 2022 to be canvassed by way of written submissions, with the Respondent and Interested Parties granted 21 days leave to file Replies and written Submissions
- 3.The Petitioner granted 21 days leave to file and serve a further affidavit if need be and written Submissions
- 4.The matter to be mentioned on 10th July, 2023 to ascertain compliance and further directions including taking a ruling date
- 5.The Petition dated 20th June, 2022 to be fixed for hearing within the next One Hundred and Eighty (180) days from the date of delivery of the Ruling
- 6.Costs of the objection to be in the cause
- Jurisdiction invoked
- Articles 22, 23, 47 and 165(3)(b) of the Constitution of Kenya, 2010; Section 93 of the Physical and Land Use Planning Act, No. 13 of 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbesa Investments Limited v County Government of Mombasa; Bayusuf & another (Interested Parties)", Case Analysis (2023). Constitutional Petition 23 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18543/eng@2023-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.