Edmund Kirigha Malusha v Fahmi Hussein Swaleh & 1 other
The bottom line
#Kenya's Court of Appeal confirmed that if a law gives you an appeal route, you must use it before going to court.
What this practically means
#Executive summary
#Key legal issues
#Raising a new issue (invalidity of the enforcement notice under the repealed Physical Planning Act) for the first time on appeal
The ground fails. The issue was not raised in the pleadings, grounds or submissions before the ELC, so the learned Judge neither could nor did determine it, and it cannot be introduced on appeal.
Order 53 rule 4(1) of the Civil Procedure Rules confines a judicial review applicant to the grounds in the statement. Citing Kinyanjui Kamau v George Kamau Njoroge and Stallion Insurance Co Ltd v Ignazzio Messina & C S.p.A, the Court held that a court may decide an unpleaded issue only if it emerges and is fully canvassed at trial; otherwise an appellant cannot raise a new point on appeal without consent or very strong grounds, since doing so would prejudice the successful party.
Whether the judicial review application offended the doctrine of exhaustion of statutory remedies
The learned Judge was not at fault. The appellant was required by section 72(3) of the Physical and Land Use Planning Act to appeal to the County Physical and Land Use Planning Liaison Committee within fourteen days, and did not appeal or attempt to appeal, nor apply for exemption under section 9(4) of the Fair Administrative Action Act.
The enforcement notice was issued following the appellant's own complaint, a site inspection, and comparison with the approved 1994 building plan; it addressed non-compliance with the Act, not a boundary dispute. Section 9(2) of the FAA Act mandatorily bars judicial review before exhaustion. The alleged bias of the Liaison Committee was unsubstantiated by evidence and did not constitute exceptional circumstances. Authorities including Speaker of the National Assembly v Karume, Whitehorse Investments and Makupa Transit Shade support strict adherence to statutory appeal procedures.
Whether the judicial review application was dismissed on mere technicalities, and the effect of section 9(3) of the Fair Administrative Action Act
The dismissal was on a substantive point of law, not a technicality, and section 9(3) mandates the court to direct exhaustion or, appropriately, dismiss a premature application.
The exhaustion doctrine serves administrative autonomy, separation of powers, judicial economy and alternative dispute resolution, consistent with Article 159 of the Constitution. Section 9(3) contemplates fresh proceedings after exhaustion; sustaining a premature application would produce orders in vain. The alleged ultra vires actions and non-compliance with section 72(2)(a) should have been raised on appeal to the Liaison Committee.
Legal principles established
#- Where a statute prescribes a procedure for redress of a particular grievance, that procedure must be strictly followed and administrative remedies exhausted before judicial review, absent exceptional circumstances
- A party aggrieved by an enforcement notice under section 72 of the Physical and Land Use Planning Act must first appeal to the County Physical and Land Use Planning Liaison Committee within fourteen days before approaching the court
- Failure to exhaust alternative statutory remedies renders court proceedings futile absent exceptional circumstances warranting exemption under section 9(4) of the Fair Administrative Action Act, and an applicant must apply for such exemption
- A new point of law not pleaded or raised in the court below cannot be raised for the first time on appeal without consent or very strong grounds
- Section 9(3) of the Fair Administrative Action Act envisages that a premature judicial review application may be dismissed, since sustaining it would amount to issuing orders in vain
- The exhaustion doctrine is a substantive rule of law, not a mere procedural technicality, serving administrative autonomy, separation of powers, judicial economy and alternative dispute resolution
- Bias must be proved by evidence, not established merely by the seriousness of allegations, assessed objectively from the perspective of a fair-minded and informed observer
Court orders
#- 1.The appeal is dismissed
- 2.The Judgment and Decree of the ELC at Mombasa (N. A. Matheka, J.) delivered on 9th November 2021 is upheld
- 3.The appellant shall bear the costs of the appeal
- On appeal from
- Environment and Land Court at Mombasa
- ELC JR Case No. 10 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court; appeal against the judgment in a judicial review application under Order 53 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Edmund Kirigha Malusha v Fahmi Hussein Swaleh & 1 other", Case Analysis (2025). Civil Appeal at Mombasa (Memorandum of Appeal dated 3rd June 2022) arising from ELC JR Case No. 10 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/761/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.