Konza Ranching & Farming Cooperative Society v Inter County Joint Physical and Land Use Planning Committee (Makueni, Machakos & Kajiado Counties) & 8 others (Environment & Land Petition E007 of 2023) [2024] KEELC 5559 (KLR)
The bottom line
#The Environment and Land Court dismissed a challenge to the Konza Technopolis Buffer Zone Plan, ruling public participation was adequate and statutory appeals must come first.
What this practically means
#Executive summary
#Key legal issues
#Whether public participation was adequate in the review of the Konza Buffer Zone Plan
The Respondents undertook adequate public participation through notices, stakeholder meetings, radio sensitisation, deposit of plan documents, and incorporation of comments
The court found published notices of intention to plan and to review, minutes of stakeholder meetings including attendance by the Petitioner's Chairman, responses to the Petitioner's letters, and gazettement of incorporation of comments. Applying the case-by-case standard from British American Tobacco and the inclusivity standard from Mui Coal Basin, the court held participation was adequate.
Whether failure to co-opt stakeholders to the Inter-County Joint Committee rendered it unconstitutional
No; co-option under Section 29(4) of PLUPA is discretionary and failure to co-opt does not invalidate the Committee
Section 29(4) provides the committee 'may' co-opt persons necessary to assist it; there is no mandatory obligation to co-opt the Petitioner. The claim was therefore frivolous.
Whether certiorari could issue to quash the 2012 gazette notices
No; the applications were made long after the six-month limitation and the decisions were overtaken by events
Order 53 requires certiorari within six months of the decision. The gazette notices dated 2012 were sought to be quashed more than twelve years later without explanation for the delay, and the only live issue was the plan under review.
Whether the court should assume jurisdiction despite the exhaustion requirement in PLUPA
No; the Petitioner failed to exhaust the statutory appeal mechanism, and the preliminary objection on jurisdiction succeeded
The Petitioner's letter of 14th May 2021 was not a valid appeal as no notice of intention to prepare a plan had been gazetted and no Form PPA 9 was attached; no appeal was lodged within fourteen days of the 9th June 2023 notice of incorporation of comments. The Liaison Committee has the primary mandate.
Whether the Respondents violated the Petitioner's rights under Articles 27, 35, 40 and 47
No violations were established
Planning over land does not amount to deprivation or compulsory acquisition; compulsory acquisition is a distinct statutory process and any grievance lies with the Land Acquisition Tribunal.
Legal principles established
#- Public participation must be assessed on the peculiar circumstances of each case, with reasonable notice and reasonable opportunity being what is critical
- A public participation programme must show intentional inclusivity and diversity; deliberate exclusion of bona fide stakeholders renders it ineffective and illegal
- An order of certiorari must be sought within six months of the decision sought to be quashed, per Order 53 of the Civil Procedure Rules
- Parties must exhaust the dispute resolution mechanisms provided under PLUPA before approaching the court; the National Physical and Land Use Planning Liaison Committee has primary adjudicatory mandate
Court orders
#- 1.The Petition is dismissed with costs
- Jurisdiction invoked
- Original constitutional petition jurisdiction under Article 23 of the Constitution, challenged by a Notice of Preliminary Objection on exhaustion under the Physical and Land Use Planning Act, 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Konza Ranching & Farming Cooperative Society v Inter County Joint Physical and Land Use Planning Committee (Makueni, Machakos & Kajiado Counties) & 8 others (Environment & Land Petition E007 of 2023) [2024] KEELC 5559 (KLR)", Case Analysis (2024). MKS. ELC. PETITION NO. E007 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5559/eng@2024-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.