Gichohi & another v Rajuun Properties Limited & 2 others (Environment & Land Case E049 of 2023) [2024] KEELC 4668 (KLR)
The bottom line
#The Environment and Land Court confirmed it can hear a land dispute directly when constitutional rights like a clean environment are at stake, without first going through county appeal channels.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC lacks jurisdiction because the Plaintiffs did not appeal to the County Physical and Land Use Planning Liaison Committee under Section 61(3) & (4) of PLUPA
The preliminary objection was dismissed; the court held it has primary jurisdiction because the dispute extends beyond a mere grievance over development permission into alleged constitutional rights violations.
The court noted that when time began to run under Section 61 depends on whether the application was communicated to the public, a fact that cannot be ascertained on a preliminary objection. Relying on the Supreme Court's decision in Nicholus Abidha, it held that where constitutional rights violations are pleaded and the Liaison Committee's jurisdiction is limited to appeals on development permission decisions, disputes outside that scope lie with the ELC.
Whether a preliminary objection can resolve questions turning on facts
Questions of whether public communication of the application occurred cannot be resolved on a preliminary objection, which must rest on points of law only.
The court reasoned that Section 61(1)(d) of PLUPA presumes some communication of the application to members of the public, and determining when limitation time began to run requires ascertaining those facts. Such factual inquiry is impermissible at the stage of a preliminary objection, which per Mukisa Biscuit must be based solely on points of law.
Legal principles established
#- Where a suit primarily seeks to enforce fundamental rights and freedoms and the claimed constitutional violations are not mere bootstraps or pretext, it is not barred by the doctrine of exhaustion.
- The availability of an alternative remedy does not necessarily bar an individual from seeking constitutional relief; adequacy of the alternative remedy is the test.
Court orders
#- 1.The preliminary objection dated 19th September 2023 is dismissed
- 2.Costs of the preliminary objection awarded to the Plaintiffs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichohi & another v Rajuun Properties Limited & 2 others (Environment & Land Case E049 of 2023) [2024] KEELC 4668 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4668/eng@2024-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.