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ELCPartially AllowedPetition dated 15/5/2022 (Thika ELC)· [2024] KEELC 5120 (KLR)

Maina v Director, Physical & Land Use Planning,– Kiambu County Government & another (Petition E005 of 2022) [2024] KEELC 5120 (KLR)

Environment and Land Court
4 July 2024
JKJ G Kemei
4,413 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Thika Environment and Land Court quashed Kiambu County's enforcement notice because it set no deadline for compliance and left the landowner with no appeal forum.

What this practically means

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Executive summary

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The Petitioner, registered owner of LR No. Ruiru Kiu Block 3/2060 Plot No. 955 Kahawa Sukari, obtained development approval in July 2021 for a five-bedroom maisonette. On 11th January 2022 the Respondents, the Kiambu County planning directorates, issued Enforcement Notice No. 00776 alleging a multi-dwelling development constructed without permission, requiring her to stop construction, seek reapproval, or restore the land. She complied by resubmitting architectural drawings but received no response, and the statutory appeal forum (the County Physical and Land Use Planning Liaison Committee) had not been operationalised. The Respondents did not controvert the Petition despite service. The Court held that the enforcement notice was administrative action under Section 2 of the Fair Administrative Actions Act; that although it specified the alleged contravention and measures, it failed to state a compliance timeframe contrary to Section 72(1)(b) of the Physical and Land Use Planning Act; and that the Respondents' silence after partial compliance and the absence of the Liaison Committee breached Article 47 and natural justice. The Petition partially succeeded: the Court declared the revocation, the enforcement notice and the lack of an appeal forum unconstitutional, and quashed both the notice and the cancellation of approvals by certiorari. Prohibition was refused as unnecessary, the Respondents being estopped from proceeding under the impugned notices, and general damages of Kshs. 700,000/- were disallowed for failure of proof. Each party was left to bear no costs - no orders as to costs.

Key legal issues

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01

Whether the enforcement notice was an administrative action subject to Article 47 and the FAAA

Holding

Yes, it is an administrative action under Section 2 of the FAAA

Reasoning

The Court held that the enforcement notice issued by the County planning authorities falls within the statutory definition of administrative action, since it is an act of an authority affecting the legal rights and interests of the person to whom it relates, and therefore had to be expeditious, efficient, lawful and procedurally fair.

p. 5
02

Whether the impugned enforcement notice complied with Section 72 of PLUPA

Holding

No - it specified measures but failed to state the time frame for compliance

Reasoning

The notice specified the development alleged to contravene the permit and three measures to be taken, satisfying Section 72(1)(a) and (c). However, it omitted the period within which the measures were to be complied with, contrary to Section 72(1)(b), making it general and open-ended and therefore unlawful.

p. 10
03

Whether the Respondents' failure to respond to resubmitted plans and to avail the Liaison Committee violated fair administrative action

Holding

Yes; the failure to communicate the decision and non-operationalisation of the Liaison Committee breached natural justice

Reasoning

The Petitioner complied with the notice by resubmitting architectural drawings, but four months later the Respondents had not responded. Further, the County Physical and Land Use Planning Liaison Committee, the statutory appeal forum under Section 72(3), had not been operationalised, leaving the Petitioner without a hearing. These omissions contravened Article 47 and Section 4 of the FAAA.

p. 10
04

Whether uncontroverted evidence relieves a petitioner of the burden of proof

Holding

No; the petitioner retains the burden even where the other side does not appear

Reasoning

Although the Respondents failed to file a response despite service, the Court held that the legal burden of proof on the Petitioner is not lessened by the absence of the contesting party. The Petitioner still had to establish her case to the required standard on the evidence on record.

p. 3

Legal principles established

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  • An enforcement notice under section 72 of PLUPA must specify the time frame within which the required measures are to be complied with; an open-ended notice is unlawful
  • Failure to operationalise the statutory appeal forum (County Physical and Land Use Planning Liaison Committee) denies a person the right to be heard, violating Article 47 and Section 4 of the FAAA

Court orders

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  1. 1.A declaration that the purported revocation of the Petitioner's development permissions is unconstitutional and a violation of the Petitioner's right to fair administrative action
  2. 2.A declaration that Enforcement Notice No. 00776 dated 11th January 2022 is unconstitutional and a violation of the Petitioner's right to fair administrative action
  3. 3.A declaration that the failure by the Respondents to make available the statutory forum for adjudicating appeals violates the Petitioner's right to fair administrative action and access to justice
  4. 4.A Judicial Review order of Certiorari quashing the decision in Enforcement Notice No. 00776 dated 11th January 2022 directing stoppage of construction and reapproval
  5. 5.A Judicial Review order of Certiorari quashing the decision to cancel existing development approvals and permits issued to the Petitioner
  6. 6.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 3, 10, 19, 20, 22, 23(1)(3), 27, 40, 43, 47, 47(2), 48, 50, 73, 163(3), 165(3), 165(6), 183, 232, 258 & 259
  • Fair Administrative Actions ActSections 2, 4, 6
  • Physical and Land Use Planning ActSections 57, 58(6), 72
  • County Government Act 2012Section 35

Cases cited (5)

  • Republic v County Government of Laikipia Exparte Mohamed Asafa Woche
    [2020] eKLR
  • Kenya Human Rights Commission v Non-Governmental Organisations Co-Ordination Board
    [2016] eKLR
  • Ridge v Baldwin
    [1964] AC 40
  • Local Government Board v Arlidge
    (1915) AC 120
  • Sceneries Limited v National Land Commission
    (2017) eKLR
Jurisdiction invoked
Articles 22, 23, 165(3) of the Constitution of Kenya (constitutional petition for violation of Article 47 rights, with judicial review orders under section 11 Fair Administrative Actions Act)

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, "Maina v Director, Physical & Land Use Planning,– Kiambu County Government & another (Petition E005 of 2022) [2024] KEELC 5120 (KLR)", Case Analysis (2024). Petition dated 15/5/2022 (Thika ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5120/eng@2024-07-04

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