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ELCDismissedPetition dated 16th July 2024· [2025] KEELC 3090 (KLR)

Mohamed v County Government of Kilifi & 2 others (Constitutional Petition E011 of 2024) [2025] KEELC 3090 (KLR)

Environment and Land Court
27 March 2025
EME. K. Makori
2,795 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kilifi landowner who never filed the proper development application lost his case against the county, proving paperwork must come before court battles.

What this practically means

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Executive summary

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The Petitioner, registered owner of three plots in Mtwapa within Kilifi County, petitioned under Articles 22, 23, 40, 47 and 165 of the Constitution seeking declarations that he was entitled to lawful, reasonable and procedurally fair administrative action, an unconditional Letter of Approval for construction of a perimeter wall, an order of mandamus compelling the Respondents to issue an Approval Letter, a declaration that county law granting discretion to refuse approval is null and void, exemplary damages payable personally by the 2nd and 3rd Respondents, and costs. He alleged he had filed a building plan and paid the requisite fee, and that the Respondents were maliciously withholding approval. The Respondents, through a Replying Affidavit sworn by Raymond Nzai, County Assistant Director in the Department of Physical Planning and Urban Development, countered that the Petitioner never made a formal application for Approval of Development Plans under Section 58 of the Physical Planning and Land Use Act No. 13 of 2019, and that no evidence showed a refusal to consider such an application. The court framed four issues, including whether a reviewable decision existed and whether the orders sought were available. It held that the building plan and a Kshs. 43,000.00 cash deposit receipt did not amount to a Section 58 application, so no decision was capable of review and mandamus could not issue. It further held that the Petitioner was bound to exhaust the internal appeal mechanism under Sections 76, 78 and 80 of the Act, read with Section 9(2) of the Fair Administrative Action Act, citing the Karume doctrine. The petition was dismissed with costs on 27th March 2025.

Key legal issues

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01

Whether an application for development permission was made and refused

Holding

No formal application under Section 58 of the Physical and Land Use Act was exhibited; a building plan and cash deposit receipt do not amount to such an application

Reasoning

The court held that the cash deposit receipt of Kshs. 43,000.00 did not indicate the purpose of payment nor that the relevant department received it. Without a PPA 1 Form application, there was no decision capable of being reviewed and mandamus could not issue. The Petitioner bore the burden of proving an application and its refusal.

p. 4
02

Exhaustion of alternative remedies

Holding

The Petition failed on the doctrine of exhaustion; Sections 76, 78 and 80 of the Physical and Land Use Act provide an internal appeal mechanism through the County Physical and Land Use Planning Liaison Committee

Reasoning

The court held that the Act provides a forum for ventilating grievances concerning refusal of development approval, and section 9(2) of the Fair Administrative Action Act bars judicial review before such remedies are exhausted. It was the Petitioner's responsibility to prove exceptional circumstances justifying exemption, which was not done.

p. 6

Legal principles established

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  • A public officer cannot be compelled by mandamus to perform a duty absent evidence of refusal or apparent refusal, and any refusal must also be shown to be unlawful
  • Under section 9(2) of the Fair Administrative Action Act, a court shall not review an administrative action until internal appeal or review mechanisms and all remedies under other written law are first exhausted
  • Where there is a clear procedure for redress of grievances prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed

Court orders

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  1. 1.The petition is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticles 22(1)(2) and (3), 23, 40, 47, 165
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules2013
  • Physical Planning and Land Use ActSections 58, 76, 78, 80; Third Schedule (PPA 1 Form)
  • County Government ActNo. 17 of 2012
  • Fair Administrative Action ActSection 9(2); No. 4 of 2015

Cases cited (10)

  • Wuantai Ole Saire & another v Cabinet Secretary for Lands and Planning & another
    (Petition 68 of 2022) (2024) KEELRC 894 (KLR)
  • Judicial Service Commission v Mbalu Mutava & another
    (2014) eKLR
  • Republic v Vice Chancellor, Jomo Kenyatta University of Agriculture and Technology Ex-parte Cecilia Mwathi and another
    (2008) eKLR
  • Muigana & 16 others v County Government of Nyandarua
    (Petition E007 of 2023) (2024) KEHC 960 (KLR)
  • James Willy Kingori v Chairman Extra Ordinary Meeting of Michimikuru Factory Ltd & 2 others; Maurice Kobia Dickson (Interested Party)
  • Republic v City Council of Nairobi & anor. Ex Parte Shital Bhandari
    [2015] eKLR, JR Case No. 151 of 2012
  • Republic v Kenya Forest Service Ex Parte Joseph Kakore Ole Mpoe & 5 others
    [2010] eKLR
  • Republic v Nairobi City County Government Exparte Ndiara Enterprises Limited
    [2017] KEHC 8731 (KLR)
  • Samson Chembe Vuko vs. Nelson Kilumo & 2 Others
    [2016] eKLR
  • Speaker of the National Assembly vs. Karume
    [2008] 1 KLR 425
Jurisdiction invoked
Articles 22(1)(2) and (3), 23, 40, 47 and 165 of the Constitution of Kenya; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Mohamed v County Government of Kilifi & 2 others (Constitutional Petition E011 of 2024) [2025] KEELC 3090 (KLR)", Case Analysis (2025). Petition dated 16th July 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3090/eng@2025-03-27

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