Oakdale Commodities Limited v Ivory Concepts Limited & 3 others (Environment and Land Case E219 of 2025) [2026] KEELC 1339 (KLR)

b. 3. The application and purported suit are non-starters and classical candidates for striking out with costs for grossly ofiending Sections 72(1) to (4) and Section 80(3) of the Physical and Land Use Planning Act, Cap 303 Laws of Kenya. The 2nd Defendant’s Preliminary Objection dated 1st July 2025 challenges the jurisdiction of this Court on the basis that the Plaintifi’s suit ofiends the doctrine of exhaustion under the relevant statutory dispute resolution mechanisms. Submissions Of The Parties 4. The Court directed that the Preliminary Objections be canvassed by way of written submissions. The parties duly complied, and the Court has considered the submissions and authorities filed, which now form part of the record. 2nd Defendant’s Submissions 5. The 2nd Defendant submits that the central issue for determination is whether this Court has jurisdiction to hear and determine the suit in view of the doctrine of exhaustion. It is contended that the Plaintifi’s dispute arises from the issuance of development approvals and environmental licences, matters for which Parliament has provided specialized statutory mechanisms under the Environmental Management and Coordination Act and the Physical and Land Use Planning Act. The 2nd Defendant argues that the Plaintifi was required, in the first instance, to pursue the remedies available before the National Environment Tribunal and the County Physical and Land Use Planning Liaison Committee before invoking the jurisdiction of this Court. 6. In support of the doctrine of exhaustion, the 2nd Defendant relies on Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), where the Court of Appeal held that where a statute provides a clear procedure for redress, that procedure must be strictly followed. Reliance is further placed on Geofirey Muthinja Kabiru & Another vs Samuel Muguna Henry & Others, [2015] KECA 304 KLR and United Millers Limited v Kenya Bureau of Standards & 5 Others (2021) eKLR, for the proposition that courts must exercise restraint and defer to statutory dispute resolution mechanisms unless exceptional circumstances are demonstrated. The 2nd Defendant submits that no such exceptional circumstances have been shown and urges the Court to find that it lacks jurisdiction. 4th Defendant’s Submissions 7. The 4th Defendant submits that the sole issue for determination is whether this Court has jurisdiction to entertain the suit in light of the statutory dispute resolution framework under the Physical and Land Use Planning Act. It is argued that the Plaintifi’s pleadings reveal that the dispute revolves around the planning, use, regulation and development of land, particularly the alleged contravention of zoning and user provisions. 8. According to the 4th Defendant, such disputes are, by statute, within the primary mandate of the County Executive Committee Member for Physical Planning and the County Physical and Land Use Planning Liaison Committee, and can only reach this Court by way of an appeal on points of law pursuant to sections 72(1)–(4) and 80(3) of the Physical and Land Use Planning Act. The 4th Defendant contends that the Plaintifi neither invoked nor exhausted these mechanisms before filing suit. 9. In support of this position, the 4th Defendant relies on Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) for the principle that where statute provides a clear procedure for redress, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1339/eng@2026-02-06 2

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that procedure must be strictly followed. Reliance is also placed on United Millers Limited v Kenya Bureau of Standards & 5 others [2021] KESC 72 (KLR) and Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) to submit that jurisdiction is foundational and that a court must down its tools where it lacks jurisdiction. The 4th Defendant urges the Court to strike out the suit and all applications therein with costs. 3rd Defendant’s Submissions 10. The 3rd Defendant submits that the sole issue for determination is whether this Court has jurisdiction to hear and determine the suit in view of the doctrine of exhaustion. It is argued that the Plaintifi’s claim challenges the issuance and legality of development approvals granted to the 4th Defendant, matters which fall squarely within the statutory mandate of the County Physical and Land Use Planning Liaison Committee under sections 72(1)–(4) and 75 of the Physical and Land Use Planning Act. The 3rd Defendant contends that the Act establishes a clear hierarchy of dispute resolution, beginning with the County Executive Committee Member and the Liaison Committee, with this Court only exercising appellate jurisdiction on points of law. According to the 3rd Defendant, the Plaintifi bypassed these mechanisms and prematurely invoked the jurisdiction of this Court. 11. In support of this position, the 3rd Defendant relies on Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR), for the principle that jurisdiction is foundational and a court must down its tools where it lacks jurisdiction. Further reliance is placed on Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, on the source and limits of jurisdiction, and Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), on strict adherence to statutory dispute resolution procedures. Plaintifi ’s Submissions 12. The Plaintifi submits that the Preliminary Objections raised by the 2nd and 4th Defendants are premature and improperly taken, as they cannot be determined without the Court delving into contested issues of fact. It is submitted that the Defendants have not filed their defences, and that there is no evidence on record demonstrating that the statutory processes alleged to have been bypassed such as the issuance of development approvals, licences, or change of user have in fact been undertaken. The Plaintifi contends that determination of the objections would require the Court to interrogate factual matters including ownership of the suit property, the character of the proposed development, and whether any approvals were lawfully issued, rendering the objections unsuitable for disposal as pure points of law. 13. On jurisdiction, the Plaintifi submits that this Court is properly seized of the matter under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, as the suit raises issues relating to land use and alleged violation of the right to a clean and healthy environment. The Plaintifi further argues that exceptional circumstances exist to exempt the matter from the doctrine of exhaustion, noting that the dispute involves actions of multiple regulatory bodies whose decisions cannot be conveniently addressed before a single statutory forum. 14. Reliance is placed on Amos Njoroge Kamweru & 5 others v Kajiado County Government & 2 others [2015] KEELC 759 (KLR) and Ken Kasinga v Daniel Kiplagat Kirui & 5 others [2014] KEHC 4427 (KLR), to submit that the Environment and Land Court retains original jurisdiction in matters touching on land use and environmental rights, and that the existence of statutory tribunals does not, of itself, oust the Court’s jurisdiction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1339/eng@2026-02-06 3

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Issues For Determination 15. Having considered the Preliminary Objections, the pleadings, and the submissions by the parties, the Court finds that the issue for determination is: Whether the Preliminary Objections dated 1st July 2025 and 28th August 2025 are merited. Analysis And Determination 16. The objections before Court are anchored on the contention that Parliament, through the Physical and Land Use Planning Act Cap. 303 and the Environmental Management and Co-ordination Act, 1999, established specialized mechanisms for the resolution of disputes relating to development approvals and land use, and that those mechanisms ought to have been exhausted before the Plaintifi approached this Court. 17. There is no dispute that Parliament, through the Physical and Land Use Planning Act, created a structured framework for the regulation of land use and development. That framework includes administrative and quasi-judicial bodies mandated to address specific disputes arising from planning and enforcement processes. Equally, there is no dispute that where such mechanisms exist, courts are required to exercise restraint and give efiect to legislative intent, in keeping with the doctrine of exhaustion. 18. However, the doctrine of exhaustion is not applied in abstraction. It must be applied in light of the nature of the dispute presented to the Court, the relief sought, and the jurisdiction conferred upon the Court by the Constitution and statute. Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act confer upon this Court original jurisdiction to hear and determine disputes relating to the environment and the use and occupation of land, including disputes alleging infringement of environmental rights. 19. A careful reading of the Plaint reveals that the Plaintifi’s claim is not limited to a narrow challenge of a single administrative act capable of being neatly addressed within one statutory forum. Rather, the Plaintifi raises complaints touching on the lawfulness of land use, the character of the proposed development, and the alleged infringement of the right to a clean and healthy environment, while attributing responsibility to multiple actors. Such a claim transcends a purely technical planning dispute and falls squarely within the constitutional mandate of this Court. 20. While statutory mechanisms exist under the Physical and Land Use Planning Act and the Environmental Management and Coordination Act, the existence of those mechanisms does not, of itself, operate as an automatic bar to the exercise of this Court’s original jurisdiction. This position has been recognized by the courts, which have emphasized that exhaustion must be applied with fiexibility and sensitivity to context, particularly where a dispute is multifaceted or where the remedies available before statutory bodies may not comprehensively address the grievance placed before the Court. 21. Further, Section 9(4) of the Fair Administrative Action Act expressly empowers the Court to exempt a party from the obligation to exhaust internal remedies where the interests of justice so require. The Court is satisfied, on the pleadings before it, that the issues raised by the Plaintifi cannot be conclusively or exhaustively resolved through a single statutory process without fragmenting the dispute and risking inconsistent outcomes. 22. In these circumstances, the Court is not persuaded that the Preliminary Objections raise points of law that conclusively dispose of the suit at the threshold stage. While the objections properly raise legal questions on jurisdiction and exhaustion, those questions do not, in the context of this case, operate as https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1339/eng@2026-02-06 4

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an absolute bar to the Court’s jurisdiction. The objections therefore fail to meet the standard set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, namely, that a preliminary objection must, if upheld, dispose of the suit in limine. 23. In the result, the Court finds that the Preliminary Objections dated 1st July 2025 and 28th August 2025 are not merited and are hereby dismissed. Costs of the Preliminary Objections shall be in the cause, and the suit shall proceed to hearing on the merits. It is so ordered! DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 6TH DAY OF FEBRUARY, 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr.Gathu for Plaintifi/Applicant Ms. Muyayi for 2nd Respondent Ms. Jeruto for 3rd Respondent Mr. Omondi for 4th Respondent Philomena W. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1339/eng@2026-02-06 5

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