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ELCDismissedNot stated in the judgment· [2024] KEELC 7461 (KLR)

Fleig & 6 others v The county Government of Mombasa & 2 others (Environment & Land Petition 12 of 2021) [2024] KEELC 7461 (KLR)

Environment and Land Court
13 November 2024
SKS. M. Kibunja
2,247 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a property owners' petition, ruling the land dispute belonged in statutory civil forums, not a constitutional petition.

What this practically means

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Executive summary

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The petitioners, owners of houses on land formerly known as Pungu Fuel/77, Likoni (subdivided in 2019 into eleven parcels including Kwale/Pungu Fuel Area parcels 133-143), petitioned the Environment and Land Court in Mombasa seeking a declaration of constitutional proprietary rights and a permanent conservatory injunction restraining the respondents from demolishing their boundary wall, creating a road through the property or otherwise interfering with it, alleging violation of Articles 40 and 47 of the Constitution. The 1st respondent, the County Government of Mombasa, countered that following a complaint by a neighbouring plot owner, it had lawfully required the petitioners to reopen an access road they had blocked without approvals, contrary to section 57(1) of the Physical and Land Use Planning Act, and that the survey plan relied on by both sides showed a public road created at subdivision. The court framed two issues: whether a constitutional violation or reasonable case was established, and costs. Holding that the dispute raised no constitutional question requiring constitutional interpretation - the issues being statutory, concerning the subdivision scheme and the survey plan - and noting statutory dispute-resolution mechanisms, including the Liaison Committee under section 76, that the petitioners had not exhausted, the court found the petition premature and dismissed it in its entirety. Documents filed by the petitioners with submissions without leave were struck out. As all respondents were state agencies, each party was ordered to bear its own costs.

Key legal issues

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01

Whether the petition raised constitutional issues warranting relief under Articles 40 and 47

Holding

The petition raised no constitutional issue; the dispute is a statutory/civil one concerning development and a survey plan, and should have been pursued as a civil claim

Reasoning

The court held that the dispute over the access road and subdivision scheme falls under statutes such as the Physical and Land Use Planning Act and the Survey Act, and does not require interpretation of the Constitution. Citing authority, it noted a constitutional petition must raise questions whose answers flow from the Constitution, not from statutes.

p. 4
02

Whether the petition was premature for failure to exhaust statutory dispute resolution mechanisms

Holding

The petition was filed prematurely; the petitioners did not exhaust the statutory forum such as the Liaison Committee under section 76 of the Physical and Land Use Planning Act

Reasoning

The court found statutory steps existed for challenging the survey map, including the Liaison Committee, and nothing suggested the petitioners had exhausted that forum before coming to court. On that basis, applying the doctrine of exhaustion, the petition failed.

p. 5
03

Treatment of the petitioners' additional documents filed with submissions

Holding

The documents dated 20th September 2024, filed without leave and not attached to any affidavit, were struck out and expunged from the record

Reasoning

The parties had agreed to canvass the petition by written submissions; the evidence was that in the affidavits. Documents filed long after submissions, not attached to affidavits, without leave and apparently unserved, were an improper attempt to introduce evidence after closure of pleadings.

p. 5

Legal principles established

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  • A party seeking constitutional redress must set out with reasonable precision the provision infringed and the manner of infringement
  • A court cannot exercise jurisdiction beyond that conferred by the Constitution or written law
  • Parties may not introduce documentary evidence by attaching it to submissions after closure of pleadings and without leave

Court orders

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  1. 1.That the Petition is without merit and is hereby dismissed in its entirety.
  2. 2.That each party to bear their own costs.
  3. 3.The documents dated 20th September 2024 are struck out and expunged from the record.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 47, 159(2)(d)
  • Physical and Land Use Planning ActSections 56, 57(1), 76 (also cited as Chapter 303 of the Laws of Kenya)
  • Survey ActNot specified

Cases cited (5)

  • Anarita Karimi Njeru v Republic
    (1979) eKLR
  • Trusted Society of Human Rights Alliance v Attorney General & 2 Others
    (2013) eKLR
  • Haki Ziman Abdul Abdulkarim versus Arrow Motors E.A Ltd & Another
    (2017) eKLR
  • Fredrick & Others versus MEC for Education and Training East Cape and Others
    9200 23 L.J 81 (as printed)
  • S.K Macharia versus Kenya Commercial Bank Ltd & Another
    (2012) eKLR
Jurisdiction invoked
Articles 40 and 47 of the Constitution (rights invoked by petitioners); petition before the Environment and Land Court

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, "Fleig & 6 others v The county Government of Mombasa & 2 others (Environment & Land Petition 12 of 2021) [2024] KEELC 7461 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7461/eng@2024-11-13

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