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ELCDismissedNot stated in the ruling (Judicial Review proceedings; related lower court matter: Chief Magistrate's Land Case No. 25 of 2018)· [2024] KEELC 4992 (KLR)

Republic v Chief Magistrates Court Kwale & 3 others; Ndolo & 8 others (Ex parte Applicant) (Environment and Land Judicial Review Case 5 of 2021) [2024] KEELC 4992 (KLR)

Environment and Land Court
16 January 2024
ADA.E. Dena
2,040 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear land planning disputes when the statutory Liaison Committee has not yet been established.

What this practically means

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Executive summary

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This ruling by A.E. Dena J of the Environment and Land Court determines a preliminary objection raised by Ambetsa W, State Counsel for the Attorney General, against a Notice of Motion dated 20/3/2023 in which the Exparte Applicants sought certiorari to quash the proceedings and decision in Chief Magistrate's Land Case No. 25 of 2018, an order barring implementation of those orders, and mandamus compelling issuance of a lease title pursuant to a 2006 allotment. The Respondents objected that the suit was incompetent for contravening the exhaustion requirement in the Physical Planning Act, since appeals against enforcement notices lie to the County Physical and Land Use Planning Liaison Committee, and that the court consequently lacked jurisdiction. The Applicants relied on Article 159(2)(d) of the Constitution and Section 13 of the Environment and Land Court Act, contending they were allotted Kwale/Ukunda/686 in 1996, received eviction notices in 2004 without observance of natural justice, and that no Liaison Committee had been established. The court framed two issues: whether the objection was a pure point of law, and whether the court had jurisdiction. Applying Mukisa Biscuit, Lillian S, Samuel Kamau Macharia, Ndiara Enterprises and Abidha Nicholas, the court held that jurisdiction is a pure point of law, but that Section 93 of the Physical and Land Use Planning Act vests in the ELC disputes arising before establishment of the Liaison Committee. As no committee was in place, the court found it had jurisdiction and dismissed the preliminary objection, with costs in the cause.

Key legal issues

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01

Whether the preliminary objection raises a pure point of law

Holding

Yes - an objection to jurisdiction is a pure point of law

Reasoning

The court applied the Mukisa Biscuit definition and Mwita J's elaboration in John Musakali. An objection that the court lacks jurisdiction assumes the pleaded facts and does not require ascertainment of facts, and thus qualifies as a preliminary objection on a point of law.

p. 4
02

Whether the court has jurisdiction notwithstanding Section 38 of the Physical Planning Act requiring exhaustion of the Liaison Committee mechanism

Holding

The court has jurisdiction because no Liaison Committee existed when the dispute arose; Section 93 vests such disputes in the ELC

Reasoning

Although parties must ordinarily exhaust statutory dispute resolution mechanisms, Section 93 of the Physical and Land Use Planning Act provides that before establishment of the Liaison Committee, disputes relating to physical planning and land use are heard by the Environment and Land Court. No evidence showed a committee existed, so the court, not the Committee, was the forum.

p. 5

Legal principles established

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  • Where the statutory alternative dispute resolution body (the Liaison Committee) had not been established when the dispute arose, the Environment and Land Court has jurisdiction under Section 93 of the Physical and Land Use Planning Act

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.Costs of the preliminary objection to be in the cause

Authorities

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Legislation

  • Physical Planning ActSections 35, 38, 34(4)
  • Physical and Land Use Planning ActSections 78, 93
  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticle 159(2)(d)
  • Fair Administrative Actions ActSections 4(3), 7

Cases cited (10)

  • Republic v NEMA Exparte Sound Equipment
    [2011] eKLR
  • Whitehorse Investments Ltd v Nairobi City County
    [2019] eKLR
  • Speaker of The National Assembly v James Njenga Karume
    [1992] eKLR
  • Republic v Mombasa County Government Exparte African University Trust of Kenya & Another
    [2017] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd – vs- West End Distributors Ltd
    (1969) EA 696
  • John Musakali v Speaker County of Bungoma & 4 others
    (2015) eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & others
    (2012) eKLR
  • Republic v Nairobi City County Government exparte Ndiara Enterprises Ltd
    [2017] eKLR
  • Abidha Nicholas v Attorney General and others
    Petition No. E007 of 2023
Jurisdiction invoked
Section 13 of the Environment and Land Court Act (fairly stated); judicial review under Order 53 in respect of Chief Magistrate's Land Case No. 25 of 2018

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, "Republic v Chief Magistrates Court Kwale & 3 others; Ndolo & 8 others (Ex parte Applicant) (Environment and Land Judicial Review Case 5 of 2021) [2024] KEELC 4992 (KLR)", Case Analysis (2024). Not stated in the ruling (Judicial Review proceedings; related lower court matter: Chief Magistrate's Land Case No. 25 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4992/eng@2024-01-16

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