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ELCDismissedELC Judicial Review No. 04 of 2020· [2021] KEELC 2035 (KLR)

Republic v Makueni County Government; Ex Parte Applicant Benson Kioko Maingi [2021] KEELC 2035 (KLR)

Environment and Land Court
13 September 2021
MCMbogo C.G.
1,859 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A property owner who skipped the statutory appeal process lost his court challenge to a county enforcement notice and was ordered to pay costs.

What this practically means

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Executive summary

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The ex-parte Applicant, Benson Kioko Maingi, moved the Environment and Land Court at Makueni by Notice of Motion dated 18th June 2020 under Order 53 Rule 3 of the Civil Procedure Rules, seeking certiorari to quash and prohibition to restrain implementation of an Enforcement Notice dated 30th April 2020 issued by Makueni County Government under the Physical and Land Use Planning Act, 2019, on Plot No. 113A Kikima Town on the ground that structures thereon encroached on a road reserve. He contended that the notice was issued without a fair hearing, that he had paid rates since purchasing the property in 2012, and that no development permissions were required for structures built around 1948. The Respondent, through the affidavit of its Sub-County Physical Planner, Geoffrey Mutinda, asserted that a planning exercise preceded by public participation established encroachment onto a surveyed road, that marks showing the encroachment were shown to the Applicant before service, and that the Applicant had not exhausted the appeal to the County Physical and Land Use Planning Liaison Committee under Section 80 of the Act. Applying the Speaker of the National Assembly v James Njenga Karume principle on strict adherence to prescribed procedures, the Court framed the sole issue as whether its jurisdiction under Section 13(4) of the Environment and Land Court Act was properly invoked. It found no appeal registered with the Liaison Committee, held the enforcement notice valid and regularly issued, and dismissed the application with costs on 13th September 2021.

Key legal issues

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01

Exhaustion of statutory appeal remedies before resorting to judicial review

Holding

The Court declined jurisdiction because the ex-parte Applicant had not appealed to the County Physical and Land Use Planning Liaison Committee as required by Section 80 of the Physical and Land Use Planning Act, 2019

Reasoning

The Court held that the Physical and Land Use Planning Act, 2019 contains a complete codification of the steps an aggrieved party must take before seeking judicial review. An aggrieved person dissatisfied with an enforcement notice issued under Section 72 must appeal to the County Physical and Land Use Planning Liaison Committee under Section 80. Since no such appeal was registered, the judicial review application was premature and unmeritorious.

p. 3
02

Validity of the enforcement notice issued by the Respondent

Holding

The enforcement notice dated 30th April, 2020 was held valid and regularly issued

Reasoning

The Respondent demonstrated that public participation was undertaken, the suit property was found to encroach on a surveyed road reserve, and the ex-parte Applicant was shown the extent of encroachment before service of the notice. The Applicant produced no evidence of approved building plans, development permissions or a beacon certificate to rebut the encroachment findings.

p. 3

Legal principles established

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  • Where there is a clear procedure for the redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed

Court orders

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  1. 1.The Notice of Motion dated 18th June, 2020 is dismissed with costs
Jurisdiction invoked
Section 13(4) of the Environment and Land Court Act, 2011; Order 53 Rule 3 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Makueni County Government; Ex Parte Applicant Benson Kioko Maingi [2021] KEELC 2035 (KLR)", Case Analysis (2021). ELC Judicial Review No. 04 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2035/eng@2021-09-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.