Gabeli Farm Limited v Board of Governors Kenya YMCA College of Agriculture and Technology & 2 others

ii. 4. The Physical Land Use and Planning Act 2019 has a dispute resolution mechanism which is contained in Section 61 (3) and (4) which provide as follows: (3) An applicant or an interested party that is aggrieved by the decision of a county executive committee member regarding an application for development permission may appeal against that decision to the County Physical and Land Use Planning Liaison Committee within fourteen days of the decision by the County Executive Committee Member and that committee shall hear and determine the appeal within fourteen days of the appeal being led. (4) An applicant or an interested party who les an appeal under sub-section (3) and who is aggrieved by the decision of the committee may appeal against that decision to the Environment and Land Court. iii. That there is established the Kiambu County Physical and Land Use Planning Liaison Committee under Section 76 of the Physical and Land Use Planning Committee. iv. That under section 78 (b) of the Act, the committee is mandated to hear appeals against decisions made by the planning authority with respect to physical and land use development approved plans in the county. v. That since the applicant faults issuance of the construction and development approvals issued to the 1s and 2nd respondents, the same can only be ventilated before the Kiambu County Physical and Land Use Planning Committee as established under Section 76 of the Physical and Land Use Planning Act. vi. That the granting of the said construction approvals is a decision that was made by the 3rd defendant as the planning authority. vii. That section 2 of the Act denes the planning authority as the County Executive Committee Member for Lands, Housing, & Physical Planning with respect to County Governments. viii. That it is incumbent upon the plainti/applicant herein to exhaust the dispute resolution mechanism provided for in law before invoking the jurisdiction of this Honourable Court. ix. That therefore the application and suit as led is an abuse of the court process as this Honourable Court's jurisdiction has been limited by statute. The Preliminary Objection dated 17.2.25 raises the following grounds: i. That the parties included as 1st and 2nd Defendants are not proper Defendants in accordance with Order 1 Rule 3 of the Civil procedure Rules. ii. That the continuation of this suit in the names of persons listed as 1st and 2nd Defendants will be an exercise in futility and waste of judicial time for reasons that any orders issued will not be enforceable against the 1st and 2nd Defendants herein. iii. That the Plainti has not disclosed any specic right or interest against persons listed as 1st and 2nd Defendants. iv. That the 1st and 2nd Defendants as described does not reect proper and true identity. v. That in the premises, the Plainti's Notice of Motion 4th February, 2025 is incompetent, bad in law, fatally defective, and an abuse of the Court process, as the same is not properly before this Honourable Court and as such, this Honourable Court should down its tools. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18656/eng@2025-07-23 2

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5. Pursuant to the court’s directions, the Preliminary Objections were canvassed by way of written submissions. 3rd Defendants’ Submissions 6. In his submissions dated 8th April 2025, learned counsel for the 3rd Defendants/Respondents submitted on two main issues: (i) whether this honourable court has jurisdiction to hear and determine the suit; and (ii) who should bear the costs of the application herein dated 4th February 2025. 7. Counsel for the 3rd Defendant submitted that this court is not clothed with the requisite jurisdiction under Section 61 (3) and (4) of the Physical Land Use and Planning Act 2019 which provides that an applicant or an interested party that is aggrieved by the decision of a County Executive Member regarding an application for development permission may appeal against that decision to the County Physical and Land Use Planning Liaison Committee within 14 days of the decision by the County Executive Committee Member and that committee shall hear and determine the appeal within fourteen days of the appeal being led. 8. Counsel contended that the deposition by the Plainti that the 3rd Respondent had already issued planning approvals, to reroute the public access road that had been in place and which served the Plainti, was a clear indication that the Plainti was aggrieved by the decision of the planning authority to issue the approvals. 9. Counsel further contended that the law provides a redress mechanism to resolve the dispute in this suit. He added that the Kiambu County Physical Land Use and Planning Liaison Committee was rightfully constituted and operationalized by virtue of Section 76 to 78 of the Physical Land Use and Planning Act 2019 (PLUPA) to adjudicate over appeals arising from decisions of the County Executive Committee Members. 10. He argued that the redress mechanism provided under Section 72 (4) of the PLUPA, 2019 needed to be utilized as a matter of applying the doctrine of exhaustion. Counsel relied on the case of Speaker of the National Assembly vs Karume Civil Application 92 of 1992 KECA 42 (KLR) where the learned Judges of Appeal held as follows: “ In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed." 11. Counsel submitted that the application dated 4.2.2025 led by the Plainti failed to disclose any illegality or unprocedural processes occasioned by the 3rd Respondent. Counsel further submitted that the 3rd Respondent has a statutory duty to issue approvals pursuant to Sections 4, 5 and 20 (j) of the PLUPA, 2019. He added that once a party applying for development approvals has complied with the requirements, the 3rd Respondent issues the approval. He urged this court to dismiss the Plainti’s suit. 12. On the issue of costs, counsel relied on the case of Haraf Traders Limited vs Narok County Government [2022]eKLR, where Hon. Justice Gikonyo stated that “ Trouble taken in prosecuting or defending the suit does not mean trouble in the dictionary meaning, say suering or woes or distress. It refers to the various lawful and legitimate steps taken by the parties in the case in pursuit of remedy.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18656/eng@2025-07-23 3

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13. Counsel submitted that the 3rd Defendant had taken the legitimate steps in pursuit of a remedy by demonstrating why the court should not entertain this suit. In conclusion, counsel urged the court to uphold the P.O. dated 11.2.2025 with costs. 1st and 2nd Defendants’ Submissions 14. On his part, learned counsel for the 1st and 2nd Defendants identied two issues for determination :(i) Whether this Honourable Court’s jurisdiction has been prematurely and incorrectly invoked; and (ii) Whether the 1st and 2nd Defendants are proper Defendants to the suit. 15. Counsel for the 1st and 2nd Defendants submitted that the Plainti had prematurely and improperly invoked the jurisdiction of the Environment and Land Court. It was contended that the dispute arose from the Plainti’s dissatisfaction with the decision of the Kiambu County Executive Committee Member concerning a development permission, as pleaded in paragraphs 7 to 9 of the Plaint dated 4.2.2025. 16. Counsel argued that such matters fell within the exclusive original jurisdiction of the County Physical and Land Use Planning Liaison Committee, which is established and mandated under Sections 76 and 78 of the PLUPA, 2019, to hear and determine complaints and appeals relating to planning permissions, development plans, and enforcement notices at the county level. 17. It was further submitted that Section 61(3) of the PLUPA provided that any person aggrieved by a decision of the County Executive Committee Member regarding development permission must appeal to the Liaison Committee within fourteen (14) days. In turn, Section 61(4) provides that a person aggrieved by the decision of the committee may le an appeal to the Environment and Land Court. In support of that position, counsel cited the case of Eric Kiprotich Soi & Another vs Director General Nairobi Metropolitan Services [2022] KEELC 21, where the court armed that the Environment and Land Court's jurisdiction under the Act is appellate and limited to issues of law. Reference was also made to Sikalieh (Chairman) vs Nairobi County Government & 3 others [2022] KEELC 15120, in which Angote J. held that where statutory mechanisms under the PLUPA have not been exhausted, the court is divested of jurisdiction. 18. Counsel further relied on the principle of exhaustion of administrative remedies, as discussed by the ve-judge bench in William Odhiambo Ramogi & Others vs Attorney General & 4 Others [2020] eKLR, where the court emphasized that judicial intervention must be preceded by a diligent pursuit of alternative mechanisms established in statute. This doctrine, counsel submitted, was similarly armed in Georey Muthiga Kabiru & 2 Others vs Samuel Munga Henry & 1756 Others [2015] eKLR, and Albert Chaurembo Mumbo & 7 Others vs Maurice Munyao & 148 Others [2019] eKLR, where the Supreme Court underscored that courts must allow statutory bodies the rst opportunity to resolve disputes within their jurisdiction. 19. Counsel contended that the issues raised by the Plainti were essentially factual grievances concerning development approval issued by the 3rd Defendant, and as such, fell squarely within the purview of the Liaison Committee as the proper forum. The Plainti, it was submitted, failed to seek the remedy from the Kiambu County Physical and Land Use Liaison Planning Committee. He added that the Environment and Land Court lacked jurisdiction to entertain the matter at rst instance. 20. Counsel further submitted that any recourse to this Court would only be proper on a second appeal, strictly limited to matters of law, and only after the statutory dispute resolution process had been exhausted. Counsel urged the Court to give eect to the exhaustion doctrine and refer the dispute to the Kiambu County Physical and Land Use Planning Liaison Committee. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18656/eng@2025-07-23 4

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21. With regard to whether the 1st and 2nd Defendants were proper parties to the suit, counsel submitted that the two parties had been improperly joined in the suit, in violation of Order 1 Rule 3 of the Civil Procedure Rules. 22. It was argued that the objection raised went beyond procedural non-joinder and touched on the legal capacity of the named Defendants, which is a substantive issue. Counsel relied on the Court of Appeal’s decision in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696, which dened a proper preliminary objection as one that, if successful, could dispose of the suit on a pure point of law such as want of jurisdiction or legal capacity. 23. With respect to the 1st Defendant, counsel submitted that it lacked legal personality and could therefore not own property. It was counsel’s position that the Kenya YMCA College of Agriculture and Technology being a registered institution under the TVET Act, was a body corporate capable of suing and being sued in its name. Counsel contended that the 1st Defendant, being merely a governing organ or management committee of the institution, had no separate legal identity. Counsel added that given that the 1st Defendant lacked a legal personality, it could not own properties. In support, counsel cited the Court of Appeal decision in Ricatti Business College of East Africa Ltd vs Kyanzavi Farmers Ltd [2016] eKLR, and emphasized the principle of corporate personality as established in Salomon v Salomon [1897] AC 22, reiterating that directors, managers, or employees of a body corporate cannot be sued in place of the corporation. 24. Further, counsel contended that the Plainti had not demonstrated that the 1st Defendant owned the suit property or had any proprietary interest in it. It was submitted that the suit parcels were owned by the Registered Trustees of the Young Men’s Christian Association in Kenya, a separate and distinct legal entity. 25. In regard to the 2nd Defendant, it was submitted that the Plainti had erroneously sued Housing Finance Corporation of Kenya, which counsel described as a defunct or non-existent legal entity. Counsel explained that the mortgage business and some assets and liabilities of the former Housing Finance Corporation had been taken over by HFC Limited, a registered limited liability company under the Companies Act 2015 of registration number CPR/2014/170416, and that any action should have been directed to the correct corporate entity. 26. Counsel relied on the case of Janto Construction Co. Ltd vs Enock Sikolia & 2 others [2020] eKLR, in stating that the Plainti had a duty of ascertaining the legal status of a party intended to be sued before ling the suit. 27. Counsel submitted that the Plainti had not demonstrated that any right to relief in respect of or arising out of an act or transaction or series of acts or transactions existed as against the 1st and 2nd Defendants, being non-existent entities. Counsel further submitted that the suit was nothing short of an exercise in futility and a waste of the Court's time, as any order or decree issued will be unenforceable against the 1st and 2nd Defendants. 28. The Plainti led written submissions dated 30th April 2025 through M/s C.G Waithima & Company Advocates. On whether the court was possessed with jurisdiction to determine the suit the Plainti's counsel contended that the suit does not fall within the ambit of the Physical and Land Use Planning Act, and therefore, the doctrine of exhaustion was not applicable. Counsel submitted that the suit is founded on proprietary rights violations, particularly trespass and destruction of the Plainti’s tea bushes on the suit land. It was counsel’s position that although the 1st and 2nd Defendants had lawfully sought and obtained change of user permissions for the adjoining parcels, the subsequent trespass onto https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18656/eng@2025-07-23 5

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the Plainti’s land and destruction of property was neither part of the planning approval nor disclosed in the notice of change of user. 29. Counsel emphasized that had the rerouting of the access road through the Plainti’s land been included in the notice, it would have lodged an objection before the relevant planning authority. Counsel added that the crux of the dispute revolved around alleged unlawful interference with private property, not issues of planning or land development falling under the purview of the County Physical and Land Use Planning Liaison Committee. 30. Counsel argued that the Physical and Land Use Planning Act (specically Section 78) does not confer jurisdiction on the Liaison Committee to determine issues relating to proprietary rights. Counsel invited the court to be persuaded by the decision in Safariplies Limited vs County Government of Bungoma & 3 others [2024] KEELC 3275 (KLR) in dismissing the P.O. 31. In addition, the Plainti’s counsel submitted that the facts surrounding the alleged trespass and the conduct of the 3rd Defendant’s agents were disputed. Since such facts require evidentiary proof, counsel argued that these matters could not be properly disposed of via a preliminary objection, citing Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696 and Oraro vs Mbaja [2005] KLR 141. The Plainti’s counsel further emphasized that disputed factual issues automatically fall outside the scope of a proper preliminary objection. 32. On the issue of whether the 1st and 2nd Defendants were proper parties, counsel maintained that the 1st Defendant is the Board of Governors of the Kenya YMCA College of Agriculture and Technology, and as such, is the proper legal entity responsible for managing the college’s aairs and property under Section 28 and 29 of the TVET Act. It was further argued that the 1st Defendant, acting on behalf of the college, was responsible either directly or through agents for the acts of trespass and property damage stated in the suit. Therefore, contended counsel that the 1st Defendant was properly joined, and that the issues raised were factual, which made the preliminary objection inappropriate at this stage. 33. Regarding the 2nd Defendant, counsel acknowledged that the entity may have been misdescribed as the “Housing Finance Corporation of Kenya” instead of its correct corporate name, HFC Limited. However, counsel submitted that such an error is curable by amendment, relying on the case of Fubeco China Fushun v Naiposha Co. Ltd & 11 Others, where misdescription was held not to be fatal. Counsel for the Plainti therefore urged the court to exercise its discretion under Order 1 Rule 10 of the Civil Procedure Rules to allow amendment of the pleadings, rather than dismissing the suit in the interest of substantive justice. Analysis and Determination 34. 35. Having carefully considered the Preliminary Objections and the rival submissions led by the parties herein, the following issues arise for determination: i. Whether the court has jurisdiction to hear and determine this suit. ii. Whether the 1st and 2nd Defendants are proper parties before this suit. Before delving into the merits of the Preliminary Objections, it is important to determine whether the said Preliminary Objections meet the necessary threshold. The Court of Appeal in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 laid down the principle as to what constitutes a Preliminary Objection. In the said case Law, JA stated as follows: “ So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18656/eng@2025-07-23 6

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preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 36. As can be gleaned from the said authority, the question of jurisdiction is one of the issues that qualify to be taken up as a preliminary objection. The Respondents have contended that the Plainti has prematurely and improperly invoked the jurisdiction of this Court. They have further contended that the dispute arose from the Plainti’s dissatisfaction with the decision of the Kiambu County Executive Committee Member concerning a development permission, as pleaded in paragraphs 7 to 9 of the Plaint dated 4.2.2025. They have argued that such matters fall within the exclusive original jurisdiction of the County Physical and Land Use Planning Liaison Committee, which is established and mandated under Sections 76 to 78 of the PLUPA, 2019, to hear and determine complaints and appeals relating to planning permissions, development plans, and enforcement notices at the county level. 37. A cursory glance at the Plaint and the Notice of Motion Application, both dated 4.2.2025, shows that the Plainti’s grievance is that the 1st and 2nd Defendants unlawfully trespassed on the suit land and attempted to reroute a public access road through its property (the suit land), without consent, lawful authority, or due process. Plainti has contended that the interference has caused physical damage, interference with enjoyment, and a threat to its property rights. 38. The Plainti has further contended that the change of user approvals for properties adjacent to the suit land were obtained by the 1st and 2nd Defendants without proper public participation, violating due process. The Plainti added that the Defendants illegally entered the suit land without his consent and cut down and burnt tea bushes, excavated deep gullies, and created roads. They also attempted to alter the shape and size of the suit land and register dimensions that were not in relation to the suit land. 39. The jurisdiction of this court is set out under Section 13 of the Land and Environment Court Act which provides as follows: 40. (1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162 (2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land. (2) In exercise of its jurisdiction under Article 162 (2) (b) of the Constitution, the Court shall have power to hear and determine disputes" (a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources; (b) relating to compulsory acquisition of land; (c) relating to land administration and management; (d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and (e) any other dispute relating to environment and land. While the Plainti has faulted the 1st and 2nd Defendants for obtaining physical planning approvals for change of user devoid of proper public participation, the gravamen of the suit lies in trespass and damage of the suit land by destruction of the coee bushes, excavation of gullies, and environmental degradation. This goes beyond a mere objection to planning approvals and ventures into actions of https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18656/eng@2025-07-23 7

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trespass and even infringement of the Plainti’s proprietary rights under Article 40 of the Constitution of Kenya, 2010. 41. The Liaison Committee under PLUPA has no mandate to determine trespass and environmental harm disputes. Therefore, insisting on exhaustion in this context would deny access to justice. The Environment and Land Court has original and exclusive jurisdiction under Article 162(2)(b) of the Constitution and Section 13(2) of the Environment and Land Court Act to hear any dispute relating to environment and land. This court is therefore clothed with the jurisdiction to determine the application and the suit. The preliminary objection on jurisdiction is thus dismissed. 42. On whether the 1st and 2nd Defendants are proper parties in the suit, the Defendants have contended that the 1st Defendant lacks legal personality and can therefore not own property. It was counsel’s position that the Kenya YMCA College of Agriculture and Technology being a registered institution under the Technical and Vocational Education and Training TVET Act, was a body corporate capable of suing and being sued in its name. Counsel added that the 1st Defendant, being merely a governing organ or management committee of the institution, had no separate legal identity. 43. The Plainti describes the 1st Defendant as the “principal organ” mandated to govern the institution (college) established under the TVET Act However, under Section 26(2) of the TVET Act, it is the college itself, being a body corporate, that is capable of being sued, not its Board of Governors. The Board of Governors is therefore not a body corporate or a legal entity with the capacity to be sued. 44. With regard to the 2nd Defendant, it has been submitted for the Defendants that the Plainti erroneously sued the 2nd Defendant, which counsel for the 1st and 2nd Defendants described as a defunct or non-existent legal entity. Counsel explained that the mortgage business and some assets and liabilities of the former Housing Finance Corporation had been taken over by HFC Limited, a registered limited liability company under the Companies Act 2015 of registration number CPR/2014/170416, and that any action should have been directed to the correct corporate entity. 45. The name “Housing Finance Corporation Kenya” does not reect the correct legal entity. If HFC Limited is the true legal person involved, the Plainti should have named it properly. However, this is not fatal. Under Order 1 Rule 10(2) of the Civil Procedure Rules, courts may at any stage of proceedings order substitution of parties. There must be a proper legal person on record against whom a decree can be enforced. 46. Consequently, the P.O. dated 17.2.2025 is partially allowed as follows: i. The suit against the 1st Defendant is struck out for lack of legal personality. ii. The Plainti is directed to amend the pleadings to substitute the 2nd Defendant with the correct legal entity (HFC Limited) in accordance with Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JULY 2025. ............................................ J M ONYANGO JUDGE In the presence of: Mr Kinyua for the Plainti No appearance for the Defendants https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18656/eng@2025-07-23 8

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Court Assistant: Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18656/eng@2025-07-23 9

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