Mbidhi (On behalf of 50 others and residents of Kimathi Estate LR No. 209/17383 known as Nairobi Block 51/1-359) v Nairobi City County; National Land Commission & another (Interested Parties) (Constitutional Petition E024 of 2023) [2024] KEELC 4531 (KLR)
The bottom line
#Kenya's Environment and Land Court sent Kimathi Estate residents' challenge to a county enforcement notice to a statutory committee first, pausing their constitutional petition.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was a pure point of law
It was; the objection was founded on jurisdiction and a clearly identified statutory provision (Section 72(3) of the Physical and Land Use Planning Act, 2019)
Applying the Mukisa Biscuit and Oraro v Mbaja thresholds, the court found the objection did not require ascertainment of disputed facts or exercise of discretion. It rested solely on the argument that the statutory appeal mechanism to the Liaison Committee had not been exhausted, which is a jurisdictional point of law properly raised at the earliest opportunity.
Whether the petition offended the exhaustion doctrine under Section 72(3) and (4) of the Physical and Land Use Planning Act, 2019
The challenge to the enforcement notice should have gone to the County Physical and Land Use Planning Liaison Committee; however, because some grievances predated the notice, only that issue was referred out
The court held that under Article 159 courts must promote alternative dispute resolution and down their tools where a statute clearly assigns an issue to another forum. The Liaison Committee, under Sections 77 and 78 of the Act, hears appeals against enforcement notices. Yet the petition raised mixed grill remedies, some of which only the court can ventilate, so partial referral was appropriate.
How to handle a multifaceted claim touching on both statutory and constitutional remedies
Following the Supreme Court's guidance in Benard Ambuti Andega, the court referred the enforcement notice issue to the Committee and held the petition in abeyance, preserving the constitutional issues for later determination
The Supreme Court in Kibos Distillers directed that where a petition mixes issues reserved for a statutory tribunal with constitutional issues, the court should reserve the constitutional issues pending the tribunal's outcome. This protects the parties' right to a fair hearing under Article 50 while respecting the exhaustion doctrine.
Legal principles established
#- A preliminary objection founded on jurisdiction and a clear statutory provision attains the threshold of a pure point of law
- Where a statute clearly designates another forum, the court must down its tools and allow that process, per Article 159 of the Constitution
- A multifaceted (mixed grill) claim may be partially referred to a statutory forum while the court reserves the constitutional issues for itself
Court orders
#- 1.The issue of the enforcement notice is referred to the Nairobi County Physical and Land Use Planning Liaison Committee for adjudication as a dispute within the framework of the Physical and Land Use Planning Act 2019
- 2.The hearing of this Petition is held in abeyance pending the determination of the hearing at the Physical and Land Use Planning Committee
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Constitution of Kenya, 2010 (Article 159 and Article 23 jurisdiction); the ruling turns on Section 72(3) and (4) of the Physical and Land Use Planning Act, 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbidhi (On behalf of 50 others and residents of Kimathi Estate LR No. 209/17383 known as Nairobi Block 51/1-359) v Nairobi City County; National Land Commission & another (Interested Parties) (Constitutional Petition E024 of 2023) [2024] KEELC 4531 (KLR)", Case Analysis (2024). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4531/eng@2024-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.