Ndung'u v County Government of Kwale & 4 others (Petition E002 of 2025) [2026] KEELC 3541 (KLR)
The bottom line
#A landowner challenging a Kwale development lost because he went to court first instead of using the statutory planning committee process.
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 Notice of Motion application dated 3rd September, 2025 meets the threshold for the issuance of conservatory orders
- 2.Is there a legitimate claim before court?
- 3.Whether the Notice of Motion application dated 22nd October 2025 for security for costs is merited
- 4.Who bears the costs of both applications dated 3rd September 2025 and 22nd October 2025?
Key legal issues
#Whether the Petitioner met the threshold for conservatory orders
No prima facie case was established; the Petitioner did not provide the zonal regulations allegedly violated, did not state on whose behalf the petition was brought, and did not outline the rights violated
The court examined the principles for conservatory orders from Board of Management of Uhuru Secondary School, Munya and Nubian Rights Forum. The Petitioner alleged the development contravened zonal laws limiting construction to two storeys and that there was no public participation. However, the court found the petition deficient: the alleged zonal regulations were not exhibited, the rights violated were not pleaded, and the public interest character of the litigation was not demonstrated. Without the regulations the court could not infer their existence, so no prima facie case was established.
Whether there was a legitimate claim before the court
The petition was not frivolous or vexatious, but it was prematurely filed in violation of the doctrine of exhaustion, as the dispute falls within the mandate of the County Physical and Land Use Planning Liaison Committee under Sections 72, 73 and 78 of the Physical and Land Use Planning Act, 2019
Applying Muthinja, Bernard Murage, Speaker of the National Assembly v Karume and Mutanga Tea, the court held that where a statutory dispute resolution mechanism exists, it must be exhausted first. The dispute concerned development specifications allegedly prohibited in a zonal area, which falls squarely under the Liaison Committee's mandate, with appeal to the ELC only on matters of law under Section 73(4). The court therefore lacked jurisdiction to hear the petition in the first instance.
Whether the 5th Respondent's security for costs application was merited
The court declined to determine the application because it had found it lacked jurisdiction to consider the petition in the first instance under the Physical and Land Use Planning Act
Having found that the petition violated the doctrine of exhaustion, the court reasoned it could not determine the incidental security for costs application. No orders issued on that application, despite it being effectively unopposed.
Costs of both applications
Each party to bear their own costs, as both applications were unsuccessful, though the exhaustion argument was expansively considered
The court applied Section 27(1) of the Civil Procedure Act and Rule 26 of the Mutunga Rules, noting public interest litigation attracts a liberal approach to costs. Since neither application succeeded, each party was ordered to bear its own costs.
Legal principles established
#- Where a dispute resolution mechanism exists under a statute, such as the County Physical and Land Use Planning Liaison Committee under the Physical and Land Use Planning Act, it must be exhausted before invoking the jurisdiction of the court
- Where there is a clear procedure for redress of a grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
- A party seeking conservatory orders must demonstrate an arguable prima facie case with likelihood of success, prejudice if not granted, enhancement of constitutional values, that the petition will not be rendered nugatory, and public interest
Court orders
#- 1.That the Notice of Motion application 3rd September, 2025 by the Petitioner herein violates the doctrine of exhaustion in view of the provisions of Sections 72 and 73 of the Physical and Land Use Planning Act
- 2.That the said Notice of Motion application dated 3rd September 2025 be and is hereby struck out
- 3.That equally the Notice of Motion application dated 22nd October 2025 by the 5th Respondent application be and is hereby struck out
- 4.That consequently, based on the orders above, the Constitution Petition herein be and is hereby automatically dismissed
- 5.That each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 19, 20, 21, 22, 25(2) and 258 of the Constitution of Kenya, 2010 and Rule 4 of the Mutunga Rules; Section 13(7)(a) of the Environment and Land Court Act, No. 19 of 2011
Relief refused
#Conservatory and restraining orders sought in the Petitioner's application dated 3rd September 2025
Application violated the doctrine of exhaustion, as the dispute falls under the County Physical and Land Use Planning Liaison Committee under the Physical and Land Use Planning Act, and no prima facie case was established
Security for costs of Kshs. 5,000,000 sought by the 5th Respondent in its application dated 22nd October 2025
The court, having found it lacked jurisdiction to determine the petition in the first instance under the Physical and Land Use Planning Act, declined to determine the security for costs application
Costs
Each party to bear their own costs
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 consequently, based on the orders above, the Constitution Petition herein be and is hereby automatically dismissed
THAT equally the Notice of Motion application 22nd October 2025 dated by the 5th Respondent application be and is hereby struck out
It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked
where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed
the logical conclusion is that ' a prima facie case" has not been established by the Petitioner
THAT each party to bear their own costs
Issues in the judgment
#The judgment mislabels the fourth issue for determination as 'ISSUE No. c)' when it should be 'ISSUE No. d)'
The 2nd Respondent's replying affidavit refers to 'The 1st Respondent held a lawfully obtained EIA license' where the 5th Respondent (proponent) appears intended, creating party-attribution confusion
The disposition characterises the security for costs application as 'struck out' although the body of the ruling stated no orders would issue on it for want of jurisdiction
The delivery date line is incomplete in the original: 'THIS… …30TH …. DAY OF ………..APRIL………….2026'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndung'u v County Government of Kwale & 4 others (Petition E002 of 2025) [2026] KEELC 3541 (KLR)", Case Analysis (2026). Not stated in judgment (Constitution Petition, Environment and Land Court, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3541/eng@2026-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.