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ELCDismissed· [2024] KEELC 577 (KLR)

Peony Management Co. Ltd v Kenya Urban Roads Authority & 3 others; Gao Yu International Ltd (Interested Party) (Environment & Land Petition E018 of 2021) [2024] KEELC 577 (KLR)

Environment and Land Court
8 February 2024
1,758 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court refused to force a property owner to produce development permits because the owner bought the property already built and never held the documents.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (A. Omollo J) determines an application dated 16th February 2023 by the 4th Respondent under Rule 21(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013. The Applicant sought orders compelling the Petitioner to produce the development application under Section 31 and the development permission under Section 33 of the Physical Planning Act for a swimming pool, boundary wall and guard house on LR No 330/561 Nairobi, to form part of the Petitioner's documentary evidence. The Applicant argued the documents were necessary to protect his rights under Articles 40, 50 and 64 and that the Petition could not be sustained without proof of development permission. The Petitioner opposed, deposing through Stanley Gibson Kadiri that it purchased the property from the Interested Party after it was already developed, that its claim rests on the Respondents' demolition acts, and that the application was directed at the wrong party. The court held that while discovery is a legitimate tool and a form of access to information under Article 35(2)(b), the Petitioner had explained that the documents may not be in its possession, and the application should have been directed at the Interested Party, the developer. The court further held that non-production of the documents would not justify striking out the petition, and that the abuse-of-process issue had already been settled in an earlier ruling by S. Okongo J of 3rd March 2022. The application was dismissed with costs to the Petitioner/Respondent.

Key legal issues

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01

Whether a party to a constitutional petition can compel an opposing party to produce documents (a form of discovery/notice to produce)

Holding

Discovery is a legitimate mechanism under section 22 of the Civil Procedure Act and Order 11, and constitutes access to information under Article 35(2)(b), but it is discretionary and depends on the documents being in the possession of the party against whom the order is sought

Reasoning

The court relied on Gikonyo J in ABN Amro Bank N.V v Kenya Pipeline, adopting the view that discovery is compulsory disclosure of information relating to litigation and serves the higher objective of enabling a fair hearing. However, precedent requires the document to be specifically identified and in the possession of the respondent, as in the authorities cited by Azangalala J.

p. 3
02

Whether the Petitioner, who bought the developed property from the Interested Party, could be compelled to produce development permits

Holding

No, because the Petitioner bought the property in its developed state and the documents may not be in its possession; the application ought to have been directed at the Interested Party, the developer

Reasoning

The court accepted the Petitioner's uncontradicted explanation that the Interested Party developed Peony estate before selling to the Petitioner. The Interested Party is a party to the proceedings and has not yet responded to the petition, so the Applicant can raise the issue of the merits of the petition, including any want of permits, at the trial stage.

p. 4
03

Whether submissions on the merits (abuse of process, want of development licences) could be determined at the interlocutory stage

Holding

No; directions on how to prosecute the petition had not yet been given, and the question of abuse of process had already been decided by S. Okongo J in a ruling of 3rd March 2022

Reasoning

Most of the Applicant's submissions went to the merits of the petition rather than the production of documents. The court noted that the abuse-of-process contention, including the contention that the Petitioner are trespassers, had been settled in the earlier ruling and by ELC Civil Suit No 79 of 2020, and could not be relitigated on this application.

p. 3

Legal principles established

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  • Discovery serves as a means of access to information under Article 35(2)(b) and its true purpose is to level the litigation field
  • Failure by a petitioner to produce development permits does not of itself warrant striking out a petition; the consequences of non-compliance may be deployed as a defence at trial

Court orders

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  1. 1.The application dated 16th February 2023 is dismissed
  2. 2.Costs of the application awarded to the Petitioner/Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 64
  • Constitution of KenyaArticle 35
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rule 21(2), Rules 6 and 8
  • Physical Planning ActSections 31 and 33 (Chapter 286 Laws of Kenya)
  • Civil Procedure ActSection 22
  • Civil Procedure RulesOrder 11 rule 3(2)
  • Land ActNot specified
  • Land Registration ActNot specified
  • Physical Land Use Planning ActNot specified

Cases cited (7)

  • Chase Bank (Kenya) Limited v Cannon Assurance (K) Limited
    COA Civ Appeal No 11 of 2017
  • Nairobi Law Monthly & another v KENGEN
    (2013) eKLR
  • ABN Amro Bank N.V v Kenya Pipeline Company Limited
    [2014] eKLR
  • National Social Security Fund Board of Trustees v Dr. Sally Kosgei & another
    [2005] eKLR
  • V.R. Mandevia v The Standard Bank Of South Africa Ltd
    (1944) 21 P.3
  • L.N. Lakhani & Another v V.P. Bhojani
    (1950) 17 P 27
  • Oracle productions case
Jurisdiction invoked
Rule 21(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013; constitutional petition under Articles 40, 50 and 64 of the Constitution

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, "Peony Management Co. Ltd v Kenya Urban Roads Authority & 3 others; Gao Yu International Ltd (Interested Party) (Environment & Land Petition E018 of 2021) [2024] KEELC 577 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/577/eng@2024-02-08

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