Wambugu & another v Kahawa Sukari Residents & Plot Owners Welfare Association & 6 others

JUDGMENT Introduction 1. This Appeal challenges the decision rendered by the Kiambu County Physical and Land Use Planning Liaison (hereinafter ‘PLUP’) Committee (referred to in this Judgment as “the Liaison Committee” or simply as “the Committee”) to preside over the Appeal Number CGK/KCLC/010 of 2023. The Appeal to the Committee was led by the 1st, 2nd and 3rd Respondents was brought under Section 57(1), (2), (3), (4) & (5), 62, 66, 67 and 78 of the Physical Land Use Planning Act, 2019 together with rule 4(1) (a) 16 and 18 of PLUP (Development permission and Development Control)(General) Regulations 2022. 2. The two Appellants were the Respondents in the case before the Liaison Committee. The three Respondents were the Appellants in the said case. The case in the Liaison Committee challenged the Respondents’ construction of building a multi-dwelling house contrary to approved plans, zoning regulations and terms of lease. 3. The case also challenged the issuance of occupation Certicate SNO. 2768 dated 5th August 2023 by the 1st - 3rd Interested Parties notwithstanding the fact that the construction was done contrary to approved plan and/or in violation of the zoning regulations. 4. Further that the 1st – 3rd Interested Parties improperly issued above stated occupation Certicate without an inspection report as required by Regulations 26 and 27 of PLUPA (Development permission and Development Control) (General) Regulations, 2022 or applicable procedures. 5. The two key issues that fall for determination in the Appeal are: 6. i. Whether the County Physical and Land Use Planning Liaison Committee assume a nonexistent jurisdiction in deciding the instant appeal. ii. What orders should this Court grant? Before I dispose the two issues, I will briey outline: (i) the background to the Appeal; (ii) the Grounds of Appeal; and (iii) the parties’ respective submissions in the Appeal. I will also briey discuss some of the peripheral issues that the parties submitted on. Brief Background 7. The Appellants have led this Appeal following the decision made by the Kiambu County Physical and Land Use Planning Committee (herein Committee) made in Appeal No. CGK/KCLC/010 of 2023. 8. The 1st - 3rd Respondents had led an Appeal with the Committee against the decision of the County Executive Committee Member made on 5/08/2021 about the Occupation Permit and the Appellants here having built a multi-dwelling house contrary to approved plans, zoning regulations and terms of lease. 9. The 1st - 3rd Respondents herein who were the Appellants alleged that the 1st to 3rd Interested Parties improperly issued occupation Certicate SNO 2768 dated 5/08/2023 without an inspection report as required by Regulations 26 and 27 of the Physical Land Use Planning Act (PLUPA) (Development permission and Development Control) (General) Regulations, 2022 or applicable procedures. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18659/eng@2025-07-29 2

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10. Their case was that the CECM erred in issuing occupation Certicate without an inspection report as required by the regulations referred to in paragraph 9 above. They contend that 1st - 3rd Interested Parties ought not to have issued occupation Certicate without a change of user without the 2nd and 3rd Respondents submitting their application for change of user. 11. It was the case of the 1st to 3rd Respondents that the occupation Certicate was fraudulently and/or irregularly obtained. And that the construction by the Appellants herein is harmful to public interest and to the 1st - 3rd Respondents’ constitutional right to property. 12. The Liaison Committee heard the Appeal and made the following ndings on 26/06/2023: 1. That the 1st, 2nd and 3rd Interested Parties are hereby ordered to issue Enforcement Notice compelling the Respondents to comply with the approved plans registration number RRUSD-CPD001-AAA1494 dated 15th November 2018. 2. That failure by the Respondents to comply with the Enforcement Notice, the 1st, 2nd and 3rd Interested Parties are hereby compelled to ensure compliance with the said Enforcement Notice within ninety (90) days from the date of its issuance and service to the Respondents. 3. That the Occupation Certicate for development application number RRU-SD-CPD001AAA1494 serial number 2768 dated 5th August, 2021 is hereby declared null and void. 4. That the 1st, 2nd and 3rd Interested Parties are hereby ordered to cancel the said Occupation Certicate Serial number 2768 dated 5th August, 2021 with immediate eect. 5. Parties to bear their own costs. Appeal to the Environment and Land Court 13. Aggrieved by the decision of the Liaison Committee, the Appellants brought this Appeal and led a 17 paragraphed Memorandum of Appeal dated 11/07/2024. The Appellants sought the following reliefs in their Memorandum of Appeal:i. The entirety of the Ruling, Determination and Orders of the County Physical and Land Use Planning Liaison Committee in Appeal No. Cgk/Kclc/010 of 2023 delivered and/or issued on 14th June 2023 and subsequently 26th June 2023 be set aside ii. An order hereby be and is issued allowing the Preliminary Objection dated 13th June 2023 that the appeal before the Liaison Committee be dismissed with costs to the Appellant herein. iii. This Appeal be allowed with costs to the Appellants. iv. that the appeal be allowed and the determination of the Liaison Committee delivered on 8/12/2023 be quashed and set aside; and (ii) that the costs of the appeal be awarded to them. Appellants’ Submissions 14. The Appeal was canvassed through written submissions dated 7/05/2025 by M/s Wambugu and Muriuki LLP Advocates. On Whether the Liaison Committee had jurisdiction to hear and determine Appeal CGK/KCLC/010 of 2023. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18659/eng@2025-07-29 3

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15. Counsel submitted that Section 61 (3) of the Physical Planning and Land Use Planning Act provides for the timeline and procedure within which an aggrieved party can seek redress against the decision of the 1st Interested Party, by providing to wit:“ 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.” 16. In Appeal CGK/KCLC/010 of 2023 before the Liaison Committee, it is not in dispute that the occupation certicate subject of the Appeal was issued to the Appellants in 2021. It is equally not in dispute that the said Appeal CGK/KCLC/010 of 2023 was led on 19th May 2023, a period of 2 years after grant of the occupation certicate. 17. That the said Appeal was led out of time and was therefore improperly before the Committee. Consequently, an obligation lay on the Respondents’ doorstep to rst satisfy the Committee on the reasons for the delay before the Committee could then decide on whether it could admit a matter that was time barred. 18. It was the Appellant’s submission that Parliament in its wisdom prescribed strict timelines within which a party can challenge a decision by the 1st Interested Party. In Eastleigh Mall Limited v Commissioner of Investigations & Enforcement (Income Tax Appeal E068 of 2020) [2023] KEHC 20000 (KLR), the Court determined statutory timelines to be mandatory and not just cosmetic or procedural technicalities. 19. The Appellants thus contend that the Appeal before the Committee, was led out of time and there was no application to enlarge time and despite the issue being raised vide a Preliminary Objection pointing to the provisions of Section 61 (3) of the PLUPA the Committee dismissed the Preliminary Objection and proceeded to hear the appeal despite not having jurisdiction. On the issue of jurisdiction, they relied on the case of Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1. 20. At the same time the Appellants submitted that in dismissing the Preliminary Objection (PO) and not giving reasons for the decision, the Committee violated Section 4 of the Fair Administration of Actions Act that the Committee displayed extreme bias against the Respondent and a total disregard for the law and the constitutional tenets that guide their action. 21. It was their conclusive observation that, the impugned determination owing from the decision made which they termed as an illegality cannot be allowed to subsist, as it simply humiliates the sanctity of the rule of law. They urged the Court to place reliance on the case of Butali Sugar Mills Limited & Another v Mukweyi [2023] KEELRC 401 (KLR). 22. On their part, the Respondents through Ogamba Nyakundi & Company Advocates led their submissions dated 17/07/2025 and submitted that according to them there were four issues for submission namely: a. Whether the Liaison Committee was wrong in placing reliance on orders granted in THIKA ELC E071 of 2021. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18659/eng@2025-07-29 4

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b. Whether the Liaison Committee was wrong in dismissing the Appellant’s Preliminary Objection. c. Whether the Appellants were given a fair hearing. d. Whether the Appellants stands to suer any prejudice from the liaison. 23. It was the Respondents’ submissions that the Appeal before the Committee was competent and proper. That claim that the Committee did not conduct itself with utmost professionalism and infringed on the rule of law by violating the Fair Administrative of Actions Act is not true. They submit that the Appellants claim that the Complaint/Appeal before the Liaison determination was led out of time is without any legal basis since the said Complaint/Appeal was made pursuant to Lady Justice Kemei valid Orders of 28th March 2022 in THIKA ELC E071 of 2021. 24. According to the Respondents’ the Appellants have failed to meet the threshold set in Anarita Karimi Njeru verses Republic (1979) eKLR. That the Appellants merely allege violation of their constitutional rights to fair hearing but have not particularized and demonstrated such violations. 25. They submitted that the Appellants stand to suer no prejudice from the orders of the Liaison Committee since the crux of the Liaison determination is that the Appellants having been issued with development permission should comply to the same. That Section 72(1) of PLUPA mandates the County Executive Committee Member to issue Enforcement Notice where the developer has no development permission or has built contrary to approved development permission. 26. They submitted that in deciding this Appeal this Honourable Court ought to be guided by Article 159(2) of the Constitution of Kenya, 2010. 27. The Interested Parties did not le any pleadings in response to this appeal. Analysis and Determination 28. 29. Having considered the Memorandum of Appeal, the Record of Appeal, diverse documents led by the parties and the written submissions it is my opinion that the issues for submissions are: i. Whether the Liaison Committee had jurisdiction to hear the appeal? ii. What orders should this Court issue? On the rst issue, Section 61 (3) of the Physical and Land Use Planning Act provides: “ 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.” 30. The Appeal before the Liaison Committee was led after the occupation Certicate subject of the Appeal was issued to the Appellants in 2021. The said Appeal CGK/KCLC/010 of 2023 was led on 19th May 2023, a period of 2 years after grant of the occupation Certicate. 31. Under Section 72[3] of the Physical and Land Use Planning Act, any person aggrieved with an enforcement notice may also appeal to the County Physical and Land Use Planning Liaison https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18659/eng@2025-07-29 5

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Committee within 14 days of being served with the notice and the said appeal is to be heard within 30days. 32. I will reiterate what the Court of Appeal stated in Nakuru Civil Appeal No. 119 of 2017 Public Service Commission & 2 Others vs. Eric Cheruiyot & 16 Others consolidated with Civil Appeal No. 139 of 2017 County Government of Embu & Another vs. Eric Cheruiyot & 15 Others (unreported) on the doctrine of jurisdiction in general as follows: “ Jurisdiction is everything, it is what gives a Court or a tribunal the power, authority and legitimacy to entertain a matter before it. John Beecroft Saunders in “Words and Phrases Legally Dened”, Volume 3 at Page 113 denes Court jurisdiction as follows: By jurisdiction is meant the authority which a Court has to decide matters that a relitigated before it or to take cognizance of the matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the Court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to kind and nature of the actions and matters of which the particular Court has cognizance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior Court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the Court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the Court or tribunal has been given power to determine conclusively whether the facts exist. Where a Court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” 33. The locus classicus on jurisdiction is the celebrated case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [Supra] Nyarangi, JA. relying, inter alia, on the above cited treatise by John Beecroft Saunders held as follows: “ … Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis fora continuation of proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. A decision made by a Court of law or tribunal or similar body without proper jurisdiction amounts to a nullity ab initio, and such a decision is amenable to setting aside as of right.” 34. Justice Mboya in the case of Susan Wanjiku Riunga vs County Planning Committee, Nairobi City County and 2 Others (2022) eKLR observed in passing at paragraph 86: “ In my considered view, the time for computing the duration for the lodgment of the intended appeal, if any, runs from when the aggrieved person on Interested Party becomes knowledgeable and aware of the impugned decision” 35. At the same time in the said Appeal, he stated that an Appeal that is lodged outside time raises a jurisdictional question to the extent that a Court or Tribunal confronted with an Appeal led out of time, albeit without leave would not be seized with jurisdiction to entertain the said Appeal. 36. In the instant Appeal the Respondents contend that the Appeal was not led out of time since the Preliminary Objection led in THIKA ELC E071 of 2021 was only made after Justice Kemei dismissed the Preliminary Objection on 28th March 2022. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18659/eng@2025-07-29 6

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37. In the case of Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission and 7 Others (2014) eKLR where the Supreme Court of Kenya observed that: “ To le an appeal out of time and seek the Court to extend time is presumptive and in – appropriate. No appeal can be led out of time without the leave of the Court. Such a ling renders ‘a document’ so led a nullity and of no legal consequence.” 38. Notably, if the Appeal before the Committee was indeed led or lodged out of time, then the Committee would not have been seized of the requisite Jurisdiction to entertain and adjudicate upon the Appeal. 39. Therefore, where an Appeal is led out of time, albeit without leave of the Court, then such an Appeal is invalid and a nullity. An Appeal that is lodged outside time raises a jurisdictional question to the extent that a Court or Tribunal confronted with an Appeal led out of time, albeit without leave would not be seized of jurisdiction to entertain the said Appeal. 40. It suces to point out, that jurisdiction of a Court is critical, essential and paramount in the determination of any dispute that may arise or be placed before the Court for adjudication, the Appeal before the Liaison Committee, not excepted. Therefore, for clarity, without the requisite jurisdiction, a Court of law or a quasi-Tribunal would be called upon to summarily strike out the impugned application and in this case the impugned Appeal. 41. It is that a Court should not address the merits of an Appeal if it nds that the lower Court or Tribunal (in this case, the Liaison Committee) lacked jurisdiction. The Court's focus should be solely on the jurisdictional issue, and if the lack of jurisdiction is conrmed, the Appeal should be dismissed without considering the substantive arguments. 42. The Supreme Court in the case of Supreme Court of Kenya Samuel Kamau Macharia v Kenya Commercial Bank & Another [2012]eKLR, paragraph 68 held as follows: “ (68) 43. A Court’s jurisdiction ows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the rst and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings. This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope dened by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a Court or tribunal by statute law.” Consequently, in the absence of Jurisdiction, the Committee should have downed its tools. Given this nding and in view of the reasons afore-stated, the Kiambu Liaison Committee had no jurisdiction to https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18659/eng@2025-07-29 7

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entertain the Appeal and the Committee ought to have struck it for want of jurisdiction and proceed to award the Respondents costs. 44. I see no need to examine any other issues except to nd and direct that the impugned Appeal was led out of time and so the Committee was legally bound to strike out the Appeal on the basis of same being incompetent and contrary to the stipulation vide Section 61(3) of The Physical & Land Use Planning Act, 2019. 45. I therefore nd that the Appeal has merit. I allow the Appeal and order that the Judgment of the Committee dated 26/06/2023 is set aside. It is substituted with an order allowing the Preliminary Objection with costs for want of jurisdiction. 46. Consequently, I uphold the Appeal herein and the costs are awarded to the Appellant. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 29TH DAY OF JULY 2025. ........................... MOGENI J JUDGE In the presence of:Mr. Kiprotich for the 1st and 2nd Appellants Mr. Nyakundi for the 1st and 2nd Respondents 3rd Respondent – Absent Ms. Muchiri for 1st, 2nd and 3rd Interested Parties Melita – Court Assistant ........................... MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18659/eng@2025-07-29 8

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