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ELCDismissedNot stated in judgment· [2025] KEELC 5682 (KLR)

Yukos Kitengela Residents Association v County Government of Kajiado; Nyoike & another (Interested Parties) (Judicial Review E011 of 2021) [2025] KEELC 5682 (KLR)

Environment and Land Court
31 July 2025
LKL. Komingoi
1,382 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The Kajiado Environment and Land Court dismissed a jurisdictional challenge because it required investigating facts, allowing the land dispute to proceed to a full hearing.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kajiado (L. Komingoi, J) determined a preliminary objection dated 13th May 2024 raised by the Respondent in a judicial review suit, supported by the Interested Parties and opposed by the Ex Parte Applicant. The Respondent and Interested Parties argued that the court lacked jurisdiction because the Ex Parte Applicant had not exhausted the dispute resolution mechanisms under Sections 61(3) and 78 of the Physical and Land Use Planning Act 2019 and Section 9 of the Fair Administrative Action Act, and that the application offended the doctrine of constitutional avoidance. The Ex Parte Applicant countered that the impugned development permission of 1st December 2021 was issued by the Acting County Planner rather than the County Executive Committee Member mandated by Sections 57 and 58 of the Act, rendering it ultra vires and null and void ab initio; the exhaustion doctrine also had exceptions, including where the decision-maker acted ultra vires. Applying the Mukisa Biscuit test as bolstered by the Supreme Court in Joho v Shahbal, the court held that a preliminary objection must be a pure point of law argued on the assumption that all pleaded facts are correct. Because the ultra vires issue required factual justification and clarification, the objection was not competent. The court dismissed the preliminary objection and directed that costs abide the outcome of the suit. The substantive judicial review application remains to be determined on its merits.

Key legal issues

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01

Whether the preliminary objection on exhaustion of remedies under the Physical and Land Use Planning Act was sustainable

Holding

The preliminary objection was not a pure point of law because it turned on whether the impugned decision of 1st December 2021 was made by a duly authorised officer (the Acting County Planner rather than the CECM); that is a factual inquiry, so the objection failed.

Reasoning

The court applied Mukisa Biscuit and Joho v Shahbal: a preliminary objection must rest on a pure point of law assuming the pleaded facts are correct. The Ex Parte Applicant's claim that the approval was issued ultra vires by the Acting County Planner required ascertainment of facts and justification, which negated the objection. The objection was accordingly dismissed without deciding the merits of exhaustion.

p. 4

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot be raised where facts must be ascertained
  • An objection requiring justification and clarification of facts does not meet the threshold of a preliminary objection

Court orders

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  1. 1.The Preliminary Objection dated 13th May 2024 is found to be without merit and is dismissed
  2. 2.The costs shall abide the outcome of the suit
Jurisdiction invoked
Judicial review jurisdiction under the Fair Administrative Action Act and Article 47 of the Constitution (implied from the judicial review application); no express provision quoted

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, "Yukos Kitengela Residents Association v County Government of Kajiado; Nyoike & another (Interested Parties) (Judicial Review E011 of 2021) [2025] KEELC 5682 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5682/eng@2025-07-31

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