Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherPetition dated 15th July 2024 (Busia)· [2025] KEELC 5444 (KLR)

Okoiti v Malaba Municipality & 3 others; Busia County Business Owners Association & 9 others (Interested Parties) (Environment and Land Petition E004 of 2024) [2025] KEELC 5444 (KLR)

Environment and Land Court
8 July 2025
BOBoaz N. Olao
7,587 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court in Busia confirmed it can hear Omtatah's challenge to Malaba Town evictions, dismissing county objections and awarding him costs.

What this practically means

#

Executive summary

#
The Petitioner, Senator Okiya Omtatah Okoiti, petitioned the Environment and Land Court at Busia challenging the 1st Respondent's 21-day eviction notice dated 24th June 2024 directing traders in Malaba Town's customs, main stage and Kocholya areas to vacate road reserves and public land to facilitate a 're-organisation' of the town. He alleged absence of public participation, absence of any spatial or land use plan, absence of budgetary provision, and usurpation of the National Land Commission's statutory role, seeking declarations of unconstitutionality, an injunction, and quashing of the eviction notice. The Respondents filed preliminary objections contending prematurity and lack of jurisdiction for failure to exhaust remedies under Sections 40(4), 61(3) and 78 of the Physical and Land Use Planning Act, and that the Petition fails the Anarita Karimi Njeru precision threshold. In a ruling by Olao J dated 8th July 2025, the Court held it has jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act because the dispute concerns land use. The statutory provisions invoked concern development-permission applications and appeals, not these constitutional issues; the objections were also blurred by contested facts such as whether public participation occurred. The doctrine of exhaustion had no application and would leave the Petitioner without a forum. The Petition was held to meet the Anarita Karimi Njeru threshold. The preliminary objections were dismissed with costs to the Petitioner, and fresh directions issued for the canvass of the Petitioner's pending conservatory-order Motion by written submissions.

Key legal issues

#
01

Jurisdiction of the ELC

Holding

The ELC has jurisdiction under Article 162(2)(b) and Section 13 of the Environment and Land Court Act over disputes concerning land use planning and evictions from public land.

Reasoning

The issues in the Petition revolve around eviction notices issued to traders occupying road reserves and public land for purposes of re-organising Malaba Town. Such matters relate to environmental planning, land use planning and use of land, which fall squarely within the Court's jurisdiction under Section 13(2)(a) of the ELC Act. No contrary authority was cited.

p. 12
02

Applicability of Sections 61(3), 78 and 40(4) of the Physical and Land Use Planning Act

Holding

Those provisions apply to development-permission applications and planning decisions, which are not in issue here; the objections are also blurred by contested facts and are not pure points of law.

Reasoning

The Liaison Committee's mandate concerns appeals from development permission applications and enforcement notices. No such application was made by the Petitioner or Interested Parties; moreover the Committee is itself a party to the suit. Whether public participation occurred, relevant to Section 40(4), is contested and requires evidence.

p. 13
03

Doctrine of exhaustion

Holding

The doctrine does not apply because no statutory forum under the Physical and Land Use Planning Act is available to determine the constitutional issues raised.

Reasoning

The issues for adjudication cannot be determined under the Physical and Land Use Planning Act as suggested by the Respondents, since they do not arise from development applications. Applying exhaustion would leave the Petitioner without a forum. Constitutional avoidance is also inapplicable and is not a pure point of law.

p. 15
04

Sufficiency of the Petition (Anarita Karimi Njeru threshold)

Holding

The Petition meets the threshold, having identified the constitutional provisions violated, the facts and the reliefs; in any event the objection is not a pure point of law.

Reasoning

The Petition sets out the factual background, the main constitutional and statutory violations and the reliefs sought. Precision under Anarita Karimi Njeru is satisfied on the face of the pleading; whether the violations are proved is a matter for evidence at the hearing.

p. 15

Legal principles established

#
  • Jurisdiction must be determined first; a court without jurisdiction must down its tools.
  • A Preliminary Objection must be a pure point of law, not blurred by contested facts.
  • Where statutory dispute-resolution mechanisms do not cover the dispute, the doctrine of exhaustion has no application.

Court orders

#
  1. 1.The Respondents' Preliminary Objections dated 6th September 2024 and 11th November 2024 are dismissed
  2. 2.The Respondents shall meet the Petitioner's costs of the Preliminary Objections
  3. 3.Prayer No (3) of the Petitioner's Notice of Motion dated 15th July 2024 to be canvassed by way of written submissions
  4. 4.The Petitioner to serve the Respondents with the Motion together with submissions within 7 days and file an affidavit of service
  5. 5.The Respondents to have 10 days from service to file responses, submissions and affidavits of service
  6. 6.Mention on 29th July 2025 to confirm compliance and take a date for ruling and/or further orders
  7. 7.The parties to abide by the timelines set out

Authorities

#

Legislation

  • Constitution of Kenya 2010Articles 1(1), 2(1)-(4), 3(1), 4(2), 10, 19, 20, 21, 22, 23, 24(1), 35(1)(a)&(3), 40, 47(1), 48, 50(1), 60, 62, 67(2)(a)&(h), 73(1), 75(1), 91(f), 159(2)(d), 162(2)(b), 165(5)(b), 232(1)(a)-(f), 232(1)(d), 232(2)(a), 249(1)&(2), 252(1)(c), 258, 259(1)
  • Access to Information ActSections 3, 4, 5
  • Fair Administrative Action ActSections 3, 4, 5
  • Physical and Land Use Planning Act (Cap 303)Sections 36-54, 40(4), 56, 57, 58-71, 61(3), 78
  • Urban Areas and Cities Act 2011Sections 36-42; Part V
  • Land Act 2012Sections 4, 7, 9, 10, 12(1), 12(7), 15, 16, 17(1), 17(2)
  • County Government ActSections 100, 104, 108
  • Environment and Land Court ActSections 13(1), 13(2)(a), 18
  • Civil Procedure ActSections 1A, 1B
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules)

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    1969 E.A 696
  • Anarita Karimi Njeru v R
    1979 KLR 154
  • Nitin Properties Ltd v Singh Kalsi & Another
    1995 eKLR
  • Hassan Ali Joho & Another v Suleiman Said Shabal & 2 Others
    SC Petition No 10 of 2013 [2014] eKLR
  • Oraro v Mbaja
    2007 KLR 141
  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd
    Civil Appeal No 50 of 1989 [1989] eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance
    2013 eKLR
  • Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others
    2015 eKLR
  • Speaker of National Assembly v Karume
    1992 KLR 21
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with Section 13(1) and (2) of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Okoiti v Malaba Municipality & 3 others; Busia County Business Owners Association & 9 others (Interested Parties) (Environment and Land Petition E004 of 2024) [2025] KEELC 5444 (KLR)", Case Analysis (2025). Petition dated 15th July 2024 (Busia). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5444/eng@2025-07-08

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