Republic v County Government of Kiambu & 1 other

a. That this Honourable Court lacks the original jurisdiction to entertain the present suit and said applications owing to the doctrine of exhaustion of statutory remedies. b. That the law provides a forum where grievances raised by the Applicant herein ought to be addressed in the first instance under the mandate of the County Physical Land Use Planning Committee. c. That the Physical Planning and Land Use Regulations clearly state that upon expiration of the enforcement notice and whereupon the person on whom an enforcement has been served has not appealed to the Liaison Committee, an Enforcement Team shall within seven days enter the premises or property and execute the conditions in the notice. d. That Section 17 of the Physical Planning and Land Use Regulations further stipulates that any person who is aggrieved by a decision of the County Director may appeal against such decision in accordance with Section 72 (3) and (4) the Physical and Land Use Planning Act. e. That Section 72(1) of the Physical and Land Use Planning Act states that a county executive committee member shall serve the owner, occupier, agent or developer of property or land with an enforcement notice if it comes to the notice of that county executive committee member that any condition of a development permission granted under this Act has not been complied with. f. That Section 72(3) and (4) of the Physical and Land Use Planning Act, 2019 provides where a person on whom an enforcement notice has been served is aggrieved by that notice, that person may appeal to the relevant County Physical and Land Use Planning Liaison Committee within fourteen days of being served with the notice and the committee shall hear and determine the appeal within thirty days of the appeal being filed. g. That further any party aggrieved with the determination of the County Physical and Land Use Planning Liaison Committee may appeal to the court only on a matter of law and the court shall hear and determine the appeal within thirty days. h. That Section 40(7) of the Act provides that any person aggrieved by a decision of the County Physical and Land Use Planning Liaison Committee may appeal to the Environment and Land Court against such decision in accordance with the rules of procedure for the time being applicable to the High Court. i. That Section 78 provides for the functions of a Liaison Committee and states that the Committee shall hear and determine complaints and claims made in respect to applications submitted to the planning authority in the county and further hear appeals with respect to enforcement notices. j. That fourteen days had since lapsed from the date of service of enforcement notice dated 14th February, 2024 and the Ex-parte Applicant had yet to file a complaint before the Liaison Committee pursuant to Section 72(3) of the Act. k. That the instant suit and before this Honourable Court is therefore premature, vexatious, frivolous and an abuse of the court process. l. That the Ex-Parte Applicant’s applications are premature and ought to be dismissed with costs to the Respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13823/eng@2025-05-23 2

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3. The Applicant filed Replying Affidavit in respect to the Notice of Preliminary Objection sworn by Mwirigi Kinagwi on 25th February, 2025 in which he holds that the doctrine of exhaustion is not absolute and it needs direct intervention from the court following the ultra vires acts and procedural bias. He holds that it is unjust to dismiss cases summarily on the basis of the doctrine of exhaustion especially since the orders certiorari, prohibition and mandamus sought fall outside the purview of the Liason Committee which lacks jurisdiction to grant the said orders. The Applicant further contends that the Preliminary Objection hinges on factual issues which require investigations and it is not on a pure point of law and it should be dismissed and allow for the substantive hearing of the application for Judicial Review. 4. With the consent of the parties, the court directed that the Preliminary Objection be canvassed in priority by way of written submissions since it could have the effect of disposing off the entire suit if successful. In the Respondent’s submissions dated 30th July, 2024, they argue that the judicial proceedings have been filed in court prematurely as the Applicant ought to have exhausted the primary dispute adjudication mechanism that has been provided for under the PLUPA before invoking the jurisdiction of this court. 5. In the submissions dated 25th February, 2025, the Exparte Applicant has urged the court to dismiss the Notice of Preliminary Objection since it has failed to meet the threshold of a pure point of law as it requires extensive factual inquiry. 6. As for the Interested Parties in their submissions dated 29th November, 2024, they support the Notice of Preliminary Objection and hold that since there is a clear procedure of dispute resolution the same ought to be followed before invoking the court’s intervention. Determination 7. To determine the Notice of Preliminary Objection filed in response to the Judicial Review proceedings herein, the court has read and considered at length the three sets of submissions together with the authorities cited therein. 8. In the case of Pius Kamau Kinuthia –vs- David Mueithi Kanyi & Another (Environment & Land Case No.E007 of 2023)[2024] KEELC 1625 (KLR) the court noted that:“ A Preliminary Objection rests on the proposition that when raised, its fundamental accomplishment will have a bearing on disposing of a matter because it raises pure points of law. It also underscores the need for prudent management of time as a court resource by summarily flagging out a frail and hopeless suit that if admitted to full trial, will be a wash of judicial time and will not serve the interest of justice. One will not be required to look elsewhere to find an answer as to whether a Preliminary Objection is sustainable or not, but to look at the pleading and discover that the suit is a non-starter. 9. On what a Preliminary Objection is, the court in the case of Mukisa Biscuits Manufacturing Ltd –vsWest End Distributors (1969) EA 696 held that:“ ----a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a 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 a contract giving rise to the suit to refer the dispute to arbitration”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13823/eng@2025-05-23 3

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In the same case Sir Charles Newbold, P. stated:“ a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”. 10. The Supreme Court in the case of Independent Electoral & Boundaries Commission –vs- Jane Cheperenger & 2 Others[2015]eKLR made the following observation with regard to Preliminary Objections:“ The true Preliminary Objection serves two purposes of merit; firstly, it serves as a shield for the originator of the Objection against profligate deployment of time and other resources. And secondly, it serves the public cause of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the Preliminary Objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits”. 11. In this particular case, the Preliminary Objection has been raised on account of this court’s jurisdiction to entertain the matter since, according to the Respondents the Applicant has not exhausted all avenues for dispute resolution. It is trite that in every case or matter before court, the starting point for any court is to establish whether or not it has jurisdiction to hear and determine the same. This is because without jurisdiction, the court must down its tools. This was stated in the classicus case of The Owners of the Motor Vessel “Lillian S” -vs- Caltex Oil (Kenya) Ltd (1989) KLR 1, where Nyarangi J.A. held as follows:“ I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 for a 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.' 12. A reading of the Notice of Preliminary Objection shows that the Respondents have challenged this Court’s jurisdiction by presenting a clear procedure that is required to be followed with regard to dispute resolution in matters involving land use and planning in the County. They have explained that at the first instance, the grievance are presented to the County Physical Land Use Planning Committee and only if aggrieved with the decision of this Committee, then they can now appeal to the court on point of law in accordance with the Physical and Land Use Planning Act. 13. It is trite that where there is a clear procedure for redress of issues, the same must be followed. On this issue, the court is guided by the decision made in the case of Speaker of the National Assembly –vsThe Hon. James Njenga Karume Civil Case of Application No. 92 of 1992 where the court observed as follows:“ Where there is a clear procedure for redress of any https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13823/eng@2025-05-23 4

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particular grievance prescribed by the Constitution or an act of Parliament that procedure should be strictly followed.” 14. It will be noted that this court thus agrees with the Respondents and the Interested Parties have submitted that since there are internal mechanisms for resolution of the disputes, the same ought to be followed otherwise it will offend the doctrine of exhaustion. The Respondent on the other hand has submitted that the doctrine of exhaustion is not absolute and requires court intervention since the orders of certiorari, prohibition and mandamus cannot be issued by the Committee and following the ultra vires acts and procedural acts, issues he has raised the same require this court’s intervention. In the case of William Odhiambo Ramogi & 3 Others –vs- Attorney General & 4 Others; Muslims for Human Rights & 2 Others (Interested Parties) (2020) eKLR where the court held as follows:“ The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts…” 15. In this case, the court finds that the Ex-parte Applicant has not denied that there is a clearly provided forum for dispute resolution in regard to the issues he has raised. He has also not denied that they have not approached this Committee or attempted a resolution of the dispute between them. All he has raised is that the orders he is seeking and the nature of grievances he has raised fall outside the purview of the Committee. In consideration of the cited authorities, it is clear that where there is a procedure provided to redressing disputes, the court finds that the Notice of Preliminary Objection has properly and correctly been raised with regard to the jurisdiction of this court, which is a pure point of law. 16. In the upshot, the court finds the suit before court has been filed prematurely and the same is hereby struck out with costs to the Respondent and Interested Parties. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 23RD DAY OF MAY,2025. D. O. CHEPKWONY JUDGE In the presence of: M/S Aran counsel for Exparte Applicant M/S Mwenda holding brief for Mr. Nyakundi counsel for Interested Parties Court Assistant - Martin https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13823/eng@2025-05-23 5

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