Nduhiu v Ngomo & another t/a Miritini Sunshine Academy & another (Environment & Land Case E010 of 2024) [2025] KEELC 2846 (KLR)
The bottom line
#The Environment and Land Court in Mombasa refused to strike out a land use dispute suit, confirming it has jurisdiction where no county planning committee exists.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was prematurely filed for failure to exhaust the dispute resolution mechanism under the Physical and Land Use Planning Act
The preliminary objection failed; the court has primary jurisdiction because the suit raises constitutional rights breaches falling outside the Liaison Committee's mandate and no Liaison Committee has been established in Mombasa County
Sections 61, 76, 78 and 80 of the Physical and Land Use Planning Act establish the County Physical and Land Use Planning Liaison Committee to hear complaints and appeals on development permissions. However, the suit raises violations of the right to a clean and healthy environment and other matters beyond the Committee's statutory powers. Further, there is no Liaison Committee established by the County of Mombasa, so under Section 93 of PLUPA such disputes fall to the Environment and Land Court.
Whether the Notice of Motion met the threshold for striking out the suit
It did not; the Plaint raises triable issues and the power to strike out must be used sparingly
Applying Order 2 Rule 15 of the Civil Procedure Rules and the D.T. Dobie principles, striking out ends in driving a party from the judgment seat and should be used very sparingly, only where a pleading is clearly untenable. The Plaintiff's Plaint seeks specific reliefs capable of being granted on evidence and raises triable issues. The Applicant's challenge to the soundness of the suit is not a ground for striking it out.
Costs of the applications
Costs were made costs in the cause rather than awarded to the successful Plaintiff
While costs follow the event under Section 27(1) of the Civil Procedure Act and the successful party is typically entitled to costs, the court exercised its discretion to place the costs of both the Notice of Motion and the Preliminary Objection in the cause.
Legal principles established
#- A preliminary objection on exhaustion of statutory remedies raises a pure point of law and must be determined at the onset because it is potentially dispositive of jurisdiction
- Where no County Physical and Land Use Planning Liaison Committee has been established, the Environment and Land Court has primary jurisdiction over physical and land use planning disputes under Section 93 of PLUPA
- Striking out of pleadings is a drastic remedy to be exercised sparingly and only where a pleading is clearly untenable
Court orders
#- 1.The Notice of Motion application dated 31st July, 2024 be and is hereby found to lack merit and the same is dismissed
- 2.The Preliminary Objection dated 7th August, 2024 be and is hereby found to lack merit and the same is overruled
- 3.The matter to be mentioned on 8th April, 2015 before Hon. Justice Olola for further direction on the disposal of the case accordingly
- 4.The costs of the Notice of Motion application dated 31st July, 2024 and the Preliminary Objection dated 7th August, 2024 shall be in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Section 93 of the Physical and Land Use Planning Act, 2019 (Cap. 303)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nduhiu v Ngomo & another t/a Miritini Sunshine Academy & another (Environment & Land Case E010 of 2024) [2025] KEELC 2846 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2846/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.