Nduhiu v Ngomo & another t/a Miritini Sunshine Academy & another (Environment & Land Case E010 of 2024) [2025] KEELC 2846 (KLR)
The bottom line
#The Environment and Land Court in Mombasa refused to strike out a land use dispute suit, confirming it has jurisdiction where no county planning committee exists.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection dated 7th August, 2024 was merited
- 2.Whether the Notice of Motion dated 31st July, 2024 meets the threshold required for striking out a suit
- 3.Who will bear the costs of the Notice of Motion dated 31st July, 2024 and the Preliminary Objection dated 7th August, 2024
Key legal issues
#Whether the suit was prematurely filed for failure to exhaust the dispute resolution mechanism under the Physical and Land Use Planning Act
The preliminary objection failed; the court has primary jurisdiction because the suit raises constitutional rights breaches falling outside the Liaison Committee's mandate and no Liaison Committee has been established in Mombasa County
Sections 61, 76, 78 and 80 of the Physical and Land Use Planning Act establish the County Physical and Land Use Planning Liaison Committee to hear complaints and appeals on development permissions. However, the suit raises violations of the right to a clean and healthy environment and other matters beyond the Committee's statutory powers. Further, there is no Liaison Committee established by the County of Mombasa, so under Section 93 of PLUPA such disputes fall to the Environment and Land Court.
Whether the Notice of Motion met the threshold for striking out the suit
It did not; the Plaint raises triable issues and the power to strike out must be used sparingly
Applying Order 2 Rule 15 of the Civil Procedure Rules and the D.T. Dobie principles, striking out ends in driving a party from the judgment seat and should be used very sparingly, only where a pleading is clearly untenable. The Plaintiff's Plaint seeks specific reliefs capable of being granted on evidence and raises triable issues. The Applicant's challenge to the soundness of the suit is not a ground for striking it out.
Costs of the applications
Costs were made costs in the cause rather than awarded to the successful Plaintiff
While costs follow the event under Section 27(1) of the Civil Procedure Act and the successful party is typically entitled to costs, the court exercised its discretion to place the costs of both the Notice of Motion and the Preliminary Objection in the cause.
Legal principles established
#- A preliminary objection on exhaustion of statutory remedies raises a pure point of law and must be determined at the onset because it is potentially dispositive of jurisdiction
- Where no County Physical and Land Use Planning Liaison Committee has been established, the Environment and Land Court has primary jurisdiction over physical and land use planning disputes under Section 93 of PLUPA
- Striking out of pleadings is a drastic remedy to be exercised sparingly and only where a pleading is clearly untenable
Court orders
#- 1.The Notice of Motion application dated 31st July, 2024 be and is hereby found to lack merit and the same is dismissed
- 2.The Preliminary Objection dated 7th August, 2024 be and is hereby found to lack merit and the same is overruled
- 3.The matter to be mentioned on 8th April, 2015 before Hon. Justice Olola for further direction on the disposal of the case accordingly
- 4.The costs of the Notice of Motion application dated 31st July, 2024 and the Preliminary Objection dated 7th August, 2024 shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Section 93 of the Physical and Land Use Planning Act, 2019 (Cap. 303)
Relief refused
#Striking out of the Plaintiff's suit in its entirety
The Plaintiff's suit raises triable issues and is not hopeless, frivolous or vexatious; striking out is a drastic remedy
Setting aside of the orders of 10th July 2024 (temporary injunction)
The Notice of Motion was found to lack merit and dismissed in its entirety
Costs
The costs of the Notice of Motion application dated 31st July, 2024 and the Preliminary Objection dated 7th August, 2024 shall be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the Notice of Motion application dated 31st July, 2024 be and is hereby found to lack merit and the same is dismissed.
That the Preliminary Objection dated 7th August, 2024 be and is hereby found to lack merit and the same is overruled.
That the cost of the Notice of Motion application dated 31st July, 2024 and the Preliminary Objection dated 7th August, 2024 shall be in the cause.
this court has primary jurisdiction to hear and determine this matter being a dispute that goes beyond being aggrieved with an application for a development.
Striking out of pleadings is a drastic remedy that should only be resorted to where a pleading is a complete sham.
Issues in the judgment
#Mention date appears to contain a typographical error, reading 2015 rather than 2025
The judgment is styled a 'Ruling' and the deponent is inconsistently referred to with both masculine and feminine pronouns
The court lists the costs case citations under 'Section 27 (1) of the Civil Procedure Rules Cap. 21' although the provision is in the Civil Procedure Act
The court declines to strike out for failure to exhaust but earlier records the Applicant's contention that the Plaintiff was never served and the injunction was obtained without service, yet makes no order on that ground
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nduhiu v Ngomo & another t/a Miritini Sunshine Academy & another (Environment & Land Case E010 of 2024) [2025] KEELC 2846 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2846/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.