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ELCDismissedEnvironment & Land Petition E027 of 2022· [2023] KEELC 21882 (KLR)

Samora Sikalie (Chairman) Suing on behalf of Karen Lang’ata District Association v Nairobi City County Government; Director General Nairobi Metropolitan Services & 3 others (Interested Parties)

Environment and Land Court
21 November 2023
LMLucy N. Mbugua
2,856 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed Karen residents' challenge to a development approval because they skipped the statutory appeal routes before going to court.

What this practically means

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Executive summary

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The petitioner, a residents' association recognised by a 2017 recognition agreement with the Respondent, challenged the Respondent's approval of a planning application by the 3rd Interested Party (Parliamentary Service Commission) for a Parliamentary Studies and Training Centre on LR No. 28712, seeking declarations that the approvals were illegal and unconstitutional, and a permanent injunction restraining development. It argued the approvals were granted without participation as envisaged in the recognition agreement and the orders in Nairobi ELC Petition No. 40 of 2018. The Respondent and Interested Parties countered that statutory public participation under PLUPA was conducted (newspaper advertisement, site signage, consultation questionnaires), that the recognition agreement was obsolete following PLUPA 2019, and that the petitioner should have exhausted statutory dispute resolution mechanisms. Framing three issues - exhaustion of remedies, public participation, and jurisdiction over the Petition No. 40 of 2018 decision - the court, relying on its own ruling of 11.5.2023 and Speaker of National Assembly v Karume, held that planning disputes must come as appeals from the Planning Liaison Committee and NEMA licensing grievances to the National Environmental Tribunal. It found public participation adequate and declined to interrogate the decision of a court of equal jurisdiction, observing only that the 2017 recognition agreement predated PLUPA 2019. The petition was dismissed with each party bearing their own costs.

Key legal issues

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01

Exhaustion of alternative dispute resolution mechanisms

Holding

The doctrine of exhaustion applies; planning and development disputes must come to the ELC as appeals from the Planning Liaison Committee, and NEMA licensing grievances go to the NET

Reasoning

The court adopted its own ruling of 11.5.2023 which had set out the applicable legal framework, holding that the petitioner bypassed statutory mechanisms under PLUPA and EMCA. Citing Speaker of National Assembly v Karume, where alternative dispute resolution mechanisms exist, the constitutional petition route was not available.

p. 5
02

Whether there was adequate public participation

Holding

Public participation was adequate under Section 58 of PLUPA; the petitioner failed to demonstrate insufficiency

Reasoning

The court noted an advertisement for change of user in the Daily Nation in May 2021, a site signage inviting objections, and public consultation questionnaires in the 4th Interested Party's replying affidavit. The petitioner did not show the participation was insufficient or below PLUPA standards.

p. 6
03

Status of the 2017 Recognition Agreement vis-à-vis PLUPA 2019

Holding

The court declined to interrogate the decision in Nairobi ELC Petition No. 40 of 2018, being a decision of a court of equal jurisdiction, but observed the agreement predates PLUPA 2019

Reasoning

The court observed that the recognition agreement was made in 2017, before commencement of PLUPA 2019 and the Physical and Land Use Planning (Liaison Committees) Regulations 2021 which set out the statutory framework for approval of developments, implying the agreement's framework was superseded.

p. 6

Legal principles established

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  • Matters relating to planning and development approvals must first be brought as appeals from the relevant Planning Liaison Committee - the doctrine of exhaustion of remedies applies
  • A party aggrieved by a NEMA licensing decision must appeal to the National Environmental Tribunal under section 129 of EMCA
  • A court should not delve into an analysis of a decision of a court of equal and coordinate jurisdiction

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party shall bear their own costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10, 20(3)(4), 21, 23, 24, 27, 35, 42, 47, 50(1), 62, 129(1)&(2), 159, 160, 165, 191, 258, 259(1); Chapter 6
  • Nairobi Community and Neighborhood Association Agreement ActSection 6
  • Environmental Management and Coordination ActSection 129
  • Physical and Land Use Planning ActSections 56, 58, 61(1)(d)
  • Physical and Land Use Planning (Liaison Committees) Regulations
  • Environment (Impact Assessment and Audit) Regulations
  • County Governments Act

Cases cited (9)

  • Robert Gakuru & Others v Governor of Kiambu County Government and 3 others
    [2014] eKLR

    Public participation as a constitutional requirement under Article 10

  • Francis Karoki Murutetu & another v Republic & 5 others
    [2016] eKLR
  • Trusted Society of Human Rights Alliance v Mumo Matemu & 5 others
    [2014] eKLR
  • KO Holdings Limited v County Government of Kiambu, RedHill Kentmere Residents Association (Interested Party)
    [2019] eKLR

    Exhaustion of PLUPA dispute resolution mechanisms before filing in court

  • Speaker of the National Assembly v Karume
    [1992] KLR

    Where alternative dispute resolution mechanisms exist, constitutional jurisdiction should not be invoked

  • Kenya Commercial Finance Co. Ltd v Afraha Education Society
    [2001] vol. 1 EA
  • Susan Wanjiku Maina v Director, Physical and Land Use Planning Kiambu County Government & another
    [2022] eKLR

    Court's capacity to direct the Liaison Committee to hear grievances

  • Bellevue Development Company Ltd v Francis Gikonyo & 7 others
    [2018] eKLR

    Court should not analyse a decision of a court of equal jurisdiction

  • Professor Albert Mumma suing as Chairman on behalf of Karen Lang’ata Association (KLDA) v County Government of Nairobi

    Prior judgment giving effect to the Recognition Agreement

Jurisdiction invoked
Article 165(2) of the Constitution - Environment and Land Court jurisdiction (petition filed under the Constitution); exhaustion doctrine applied

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samora Sikalie (Chairman) Suing on behalf of Karen Lang’ata District Association v Nairobi City County Government; Director General Nairobi Metropolitan Services & 3 others (Interested Parties)", Case Analysis (2023). Environment & Land Petition E027 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21882/eng@2023-11-21

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