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ELCDismissedMKS. ELC. PETITION NO. E007 OF 2023· [2024] KEELC 5559 (KLR)

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)

Environment and Land Court
29 July 2024
5,825 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By a petition dated 21st June 2023, the Petitioner, whose members own land within the 10-kilometre buffer zone around Konza Technopolis, challenged the Konza Technopolis Buffer Zone Inter-County Physical and Land Use Development Plan (2023-2033). It sought declarations that the Plan was null and void for want of stakeholder involvement and consent; that the failure to co-opt stakeholders onto the Inter-County Joint Physical and Land Use Planning Committee under Section 29(4) of the Physical and Land Use Planning Act (PLUPA) rendered the Committee unconstitutional; certiorari to quash the 2012 gazette notices designating a special planning area; orders compelling involvement of stakeholders and disclosure of the mode of acquisition; compensation and injunction. The 4th to 9th Respondents opposed, asserting that there was a lawful review of the expiring 2013 Plan with extensive public participation, that planning does not amount to compulsory acquisition, and that the Petitioner had failed to exhaust the statutory appeal mechanism before the National Physical and Land Use Planning Liaison Committee; the 8th Respondent raised a preliminary objection on jurisdiction. The court framed three issues: public participation, alleged violations of Articles 27, 35, 40 and 47, and whether the petition was merited. It found co-option under Section 29(4) discretionary; that notices, stakeholder meetings, radio sensitisation and incorporation of comments demonstrated adequate public participation; that certiorari was time-barred and overtaken by events; and that the Petitioner had not lodged a proper statutory appeal, failing the exhaustion doctrine. The preliminary objection succeeded, no rights violations were found, and the petition was dismissed with costs.

Key legal issues

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01

Whether public participation was adequate in the review of the Konza Buffer Zone Plan

Holding

The Respondents undertook adequate public participation through notices, stakeholder meetings, radio sensitisation, deposit of plan documents, and incorporation of comments

Reasoning

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.

p. 11
02

Whether failure to co-opt stakeholders to the Inter-County Joint Committee rendered it unconstitutional

Holding

No; co-option under Section 29(4) of PLUPA is discretionary and failure to co-opt does not invalidate the Committee

Reasoning

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.

p. 9
03

Whether certiorari could issue to quash the 2012 gazette notices

Holding

No; the applications were made long after the six-month limitation and the decisions were overtaken by events

Reasoning

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.

p. 9
04

Whether the court should assume jurisdiction despite the exhaustion requirement in PLUPA

Holding

No; the Petitioner failed to exhaust the statutory appeal mechanism, and the preliminary objection on jurisdiction succeeded

Reasoning

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.

p. 11
05

Whether the Respondents violated the Petitioner's rights under Articles 27, 35, 40 and 47

Holding

No violations were established

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.The Petition is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticles 23, 27, 35, 40, 47, 64, 66
  • Physical and Land Use Planning Act, 2019Sections 19, 29(1)-(4), 31(1)-(4), 32(3), 32(4), 75
  • Physical Planning Act (re repealed), Cap 286 / Physical Planning Act, 1996Section 29
  • Civil Procedure RulesOrder 53
  • Physical Planning (Appeals to the Physical Planning Liaison Committee) RegulationsLegal Notice No. 142 of 1998; Form PPA 9

Cases cited (5)

  • British American Tobacco Kenya Ltd Vs. Cabinet Secretary Ministry of Health & Others
    Supreme Court Petition No. 5 of 2017
  • Poverty Alleviation Network & Others v President of the Republic of South Africa & 19 others
    CCT 86/08 [2010] ZACC 5
  • Mui Coal Basin Local Community & 15 Others v Permanent Secretary Ministry of Energy & 17 Others
    [2015] eKLR
  • Kiambu County Government & 3 others v Robert N. Gakuru & Others
    Nairobi Civil Appeal 200 of 2014 [2017] eKLR
  • Commission for the Implementation of the Constitution v Parliament of Kenya & Another
    (2013) eKLR
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

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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, "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.