Oakdale Commodities Limited v Sazit Company Limited & 2 others (Environment & Land Case E015 of 2023) [2024] KEELC 1003 (KLR)
The bottom line
#A Mombasa court stopped a Nyali apartment construction until trial, ruling neighbours can challenge county planning approvals directly in the Environment and Land Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raised a pure point of law
The Court was satisfied the objection raised pure points of law premised on the doctrine of constitutional avoidance/exhaustion
The Court reviewed the settled test in Mukisa Biscuit and related authorities that a preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct, and that it cannot be raised where facts must be ascertained or judicial discretion exercised. Applying that test, it accepted the objection was on a pure point of law, before going on to reject it on jurisdiction.
Whether the ELC has jurisdiction over the suit on the Change of User and EIA Licence
The Court held it has jurisdiction; the exhaustion argument failed because the Liaison Committee for Mombasa County has not been established and the plaintiff was never notified of the decision
Although Sections 61(3) and 93 of the Physical and Land Use Planning Act channel planning disputes first to the County Physical and Land Use Planning Liaison Committee, the Court found no evidence the Mombasa Committee exists, and neither Defendant controverted that assertion. Section 93 therefore applies, vesting disputes in the ELC. Further, following Kibicho, a party never notified of the decision cannot be barred by exhaustion. The EIA licence limb was also a non-starter since no complaint on the licence was actually lodged as the dispute centred on the Change of User.
Whether the Plaintiff met the Giella v Cassman Brown criteria for a temporary injunction
All three criteria were satisfied: prima facie case, irreparable injury, and balance of convenience favouring the Plaintiff
The Court found a prima facie case because once the six-storey building is finalized, the Plaintiff's constitutional right to quiet enjoyment and privacy would be permanently infringed. Irreparable loss was demonstrated, and the Court could not interrogate all documents at that stage, so it saw a lower risk in granting the injunction pending full hearing of the suit.
Whether permanent injunction and other final reliefs could issue at the interlocutory stage
No; prayers 3 to 8 were reserved to the full hearing
Distinguishing prohibitory from mandatory injunctions (Shepard Homes v Sandham) and relying on Kenya Power & Lighting v Sheriff Molana Habib, the Court held permanent injunctions are granted only after full hearing. Declaratory orders, cancellation/revocation of licences and general damages are final reliefs incapable of being granted interlocutorily; granting them would leave nothing for trial.
Costs of the application and preliminary objection
Costs were ordered to be in the cause
Although costs ordinarily follow the event under Section 27(1) of the Civil Procedure Act, the Court elected, at this interlocutory juncture, to reserve costs to the outcome of the main suit rather than award them to any party immediately.
Legal principles established
#- Where the County Physical and Land Use Planning Liaison Committee has not been established, disputes relating to physical and land use planning fall to be heard by the Environment and Land Court under Section 93 of the Physical and Land Use Planning Act
- A party who was never notified of a planning approval cannot be shut out of the court for failure to exhaust the statutory appeal mechanism
- The ELC has jurisdiction where environmental and developmental issues in a suit cannot be dealt with separately by numerous tribunals
Court orders
#- 1.The Preliminary objection dated 25th October, 2023 is found to lack merit
- 2.The Notice of Motion dated 7th September, 2023 is partially found to have merit and is allowed partially
- 3.An order of temporary injunction restraining the 1st Defendant by itself, its servants and/or agents from continuing with the developments on Plot Number 22992/I/MN, Nyali, along Moyne Drive, Mombasa County pending the hearing and determination of this suit
- 4.Prayers 3, 4, 5, 6, 7 and 8 cannot be granted at an interlocutory stage and the Court reserves discretion to deal with them at the finality of the suit
- 5.The suit to be heard on 4th April, 2024 and mention on 20th March, 2024 for Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010; judgment to be delivered on 7th May, 2024 if all facts remain constant
- 6.The costs of the Notice of Motion application dated 7th September, 2023 and Notice of Preliminary objection dated 25th October, 2023 shall be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 and Sections 4, 13(1) and 13(2) of the Environment and Land Court Act, 2011; Section 93 of the Physical and Land Use Planning Act, No. 13 of 2019
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.
- SRK Sons Limited v Moennsad & another (Environment and Land Case E611 of 2025) [2026] KEELC 3025 (KLR)[2026] KEELC 3025 (KLR)15 May 2026
Cite this brief
#Cite this brief
Caselaw, "Oakdale Commodities Limited v Sazit Company Limited & 2 others (Environment & Land Case E015 of 2023) [2024] KEELC 1003 (KLR)", Case Analysis (2024). Not stated in the judgment (Plaint dated 7th September, 2023, Environment and Land Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1003/eng@2024-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.