https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5057

**REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELC CASE NO. E080 OF 2022** **HANNAH NJAMIU MARANGA.............................................................................PLAINTIFF** **VERSUS** **UPPER KAPITI RESIDENTS ASSOCIATION..........................................1ST DEFENDANT PAUL N. MAEMA.........................................................................................2ND DEFENDANT THE COUNTY GOVERNMENT OF KAJIADO......................................3RD DEFENDANT** # **RULING** ***(In respect of the preliminary objection dated 7th October 2025 raised by the 1st and 2nd Defendants challenging the jurisdiction of the court)*** ## **Introduction** 1. Before this court for determination is the Notice of Preliminary Objection dated **7th October 2025** lodged by the 1st and 2nd Defendants challenging the competence of the Plaintiff's suit on the ground that this Court lacks jurisdiction to entertain it. The objection is premised upon the contention that the Plaintiff's cause of action is statute-barred by virtue of **Section 72(4) of the Physical and Land Use Planning Act, 2019** (hereinafter "the PLUPA"), and that the Plaint ought consequently to be struck out with costs. 2. The Notice of Preliminary Objection is predicated upon the following grounds: 3. ***That this Honourable Court lacks jurisdiction to entertain the suit as the prayers sought in the Plaint are statute-barred by virtue of Section 72(4) of the Physical and Land Use Planning Act, 2019;*** 4. ***That the Plaint dated 13th October 2025 ought to be struck out and dismissed; and*** 5. ***That the costs of the suit and the Preliminary Objection be awarded to the Defendants.*** 6. The objection raises a threshold jurisdictional question. It is settled that jurisdiction is the foundation upon which judicial authority rests and, where challenged, a court is obliged to determine the issue at the earliest opportunity before embarking upon the merits of the dispute. Accordingly, if the objection succeeds, it would dispose of the suit without the necessity of receiving evidence or considering the substantive rights of the parties. Conversely, should the objection fail, the suit would proceed to hearing on its merits. 7. The Plaintiff opposed the Preliminary Objection, maintaining that the objection is misconceived both in law and in fact and that the Court is properly seized of the dispute. The parties accordingly canvassed the objection through written submissions, each setting out their respective positions on the applicability of the Physical and Land Use Planning Act, the jurisdiction of this Court, and the effect of the statutory dispute-resolution framework established under that Act. 8. A substantial aspect of the parties' arguments concerns the dispute-resolution mechanism established under the Physical and Land Use Planning Act. The 1st and 2nd Defendants argue that the Plaintiff ought to have pursued the statutory mechanism provided under the Act before approaching this Court, while the Plaintiff contends that the suit is properly before the Court and that no effective alternative statutory forum exists for the determination of the dispute. The 3rd Defendant, the County Government of Kajiado, supports the preliminary objection. **Directions** 1. The instant preliminary objection was canvassed by way of written submissions, the submissions of which have been duly considered in the writing of this ruling. **Issues for determination** 1. I have carefully considered the Notice of Preliminary Objection dated 7th October 2025, the grounds upon which it is founded, the rival submissions by the parties, the applicable constitutional and statutory framework, as well as the authorities cited. In my considered view, only one issue falls for determination, namely, **whether the Notice of Preliminary Objection is merited.** **Analysis and Determination** 1. The Defendants' objection is founded on the contention that this Court lacks jurisdiction by virtue of Section 72(4) of the Physical and Land Use Planning Act, 2019 (PLUPA). Their argument is that the Plaintiff ought to have challenged the enforcement notice issued by the 3rd Defendant before the County Physical and Land Use Planning Liaison Committee before approaching this Court and that, by reason of the doctrine of exhaustion, the present suit is incompetent. 2. The Plaintiff opposes the objection on several grounds. It is submitted that the suit was instituted on 13th October 2022, whereas the enforcement notice relied upon by the Defendants was only issued on 22nd March 2023. The Plaintiff further contends that the dispute before the Court extends beyond the enforcement notice and encompasses the legality of zoning regulations, the validity of approvals issued by the County Government and alleged unlawful interference with her proprietary rights. It is therefore argued that the objection neither raises a pure point of law nor ousts the jurisdiction of this Court. 3. The law governing preliminary objections is well settled. In ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***, Law JA stated: ***"So far as I am aware, 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."*** 1. Sir Charles Newbold P. further stated that: ***"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."*** 1. The centrality of jurisdiction cannot be overstated. In***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1***, Nyarangi JA famously held that: ***"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."*** 1. The Defendants' objection is principally anchored on the doctrine of exhaustion. The doctrine has consistently been upheld by superior courts. In ***Speaker of the National Assembly v James Njenga Karume [1992] eKLR***, the Court of Appeal held: ***"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."*** 1. Similarly, the Court of Appeal in ***Geoffrey Muthiga Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR*** observed that: ***"It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be fora of last resort and not the first port of call..."*** 1. I respectfully agree with those principles. Indeed, Parliament, through the Physical and Land Use Planning Act, deliberately established a specialized dispute resolution framework for planning disputes. Section 72 of the Act provides an appellate mechanism against enforcement notices before the County Physical and Land Use Planning Liaison Committee before a further appeal to this Court on matters of law. 2. Likewise, in ***Lashad Mohamed Mubarak v County Government of Mombasa [2020] eKLR****,* the Court reaffirmed that disputes arising from planning decisions and revocation of development permissions ought, in the first instance, to be subjected to the statutory appellate hierarchy established under the Physical and Land Use Planning Act before parties invoke the jurisdiction of the Environment and Land Court. That decision reinforces the legislative intention that planning disputes should ordinarily be determined through the specialized mechanism established under the Act. 3. However, the doctrine of exhaustion is not absolute. It presupposes the existence of an **effective, accessible and operational** statutory forum. Where the statutory mechanism is unavailable, inaccessible or incapable of granting an effective remedy, courts have consistently held that a litigant cannot be denied access to justice merely because Parliament contemplated a forum that has not been rendered functional. 4. This Court takes judicial notice of the fact that the **County Physical and Land Use Planning Liaison Committee for Kajiado County has not been operationalized.** This is a matter within the judicial knowledge of the Court by virtue of its supervisory jurisdiction over matters arising under the Physical and Land Use Planning Act. Consequently, although Parliament established the Liaison Committee as the first appellate forum, litigants within Kajiado County have, in reality, never had the benefit of that statutory mechanism. 5. The consequence of that state of affairs is that litigants within Kajiado County have not had access to the specialized appellate mechanism contemplated by the Act. The existence or otherwise of an operational Liaison Committee therefore constitutes a material consideration in determining whether the statutory dispute-resolution mechanism was available to the Plaintiff and whether the doctrine of exhaustion or any jurisdictional limitation founded upon the Act can properly be invoked in the circumstances of this case. 6. The Court cannot shut its doors to litigants on the basis of a remedy that does not exist in practice. To do so would offend **Article 48 of the Constitution of Kenya, 2010**, which provides: ***"The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice."*** 1. Equally, **Article 50(1)** of the Constitution guarantees that: ***"Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body."*** 1. The significance of operationalizing Liaison Committees was recently emphasized in ***Odhiambo v County Government of Nairobi [2025] KEELC 8298***, where the Environment and Land Court underscored that the failure by County Governments to establish and maintain functional Liaison Committees undermines the constitutional guarantee of access to justice and creates a legal vacuum in the resolution of planning disputes. While I do not reproduce the judgment verbatim, I respectfully adopt its reasoning that courts cannot insist upon exhaustion where the statutory forum has not been established. 2. A similar approach was adopted in ***Depar Limited v County Executive Committee Member for Lands, Physical Planning, Housing and Urbanization & another [2021] eKLR***, where the Court held that where the Liaison Committee had not been constituted, the statutory dispute resolution mechanism contemplated under the Act was unavailable and the Environment and Land Court retained jurisdiction to entertain the dispute. 3. This Court cannot conclude its analysis without expressing its concern regarding the continued failure by the **County Government of Kajiado** to operationalize the County Physical and Land Use Planning Liaison Committee as required by the Physical and Land Use Planning Act, 2019. Parliament deliberately established that Committee as the specialized forum for resolving planning disputes at the county level. The County Government cannot disregard that statutory obligation for years and thereafter invite this Court to decline jurisdiction because litigants failed to approach a tribunal that has never been constituted. 4. Such conduct defeats the legislative intent underlying the Act, frustrates the doctrine of exhaustion which courts have consistently upheld, unnecessarily burdens the Environment and Land Court with disputes intended to be resolved administratively, and, most importantly, prejudices members of the public who are entitled to the dispute resolution framework established by Parliament. Public institutions, like the County Governments are expected to obey and implement statutes; they cannot rely upon their own failure to comply with the law to defeat legitimate claims brought before the courts. The County Government of Kajiado like all other public institutions is bound by the national values and principles under article 10 of the Constitution amongst them being rule of law, good governance and sustainable development. This Court therefore deprecates the continued failure by the County Government of Kajiado to operationalize the County Physical and Land Use Planning Liaison Committee and urges it to take immediate steps to comply with its constitutional and statutory obligations. 5. The chronology of events in the present matter further weakens the Defendants' objection. The Plaintiff instituted this suit in October 2022. The enforcement notice relied upon by the Defendants was only issued on 22nd March 2023, several months after these proceedings had already commenced. Jurisdiction is ordinarily determined at the commencement of proceedings. In the absence of express statutory language, a subsequent administrative action cannot retrospectively divest a court of jurisdiction that was properly invoked. To hold otherwise would permit parties to defeat pending proceedings through unilateral administrative action. 6. I have equally considered the authorities relied upon by the Defendants, including ***Eric Kiprotich Soi & Another v Director General, Nairobi Metropolitan Services [2022] eKLR****,* ***Njoroge v Nairobi City County & another [2024] KEELC 6672 (KLR)*** *and* ***Prudential Capital Limited v County Executive Committee Member for Lands, Housing, Physical Planning, Municipal and Urban Development, Kiambu County Government & 2 Others [2025] KEHC 7689 (KLR*)**. I respectfully agree with the legal propositions enunciated therein regarding the doctrine of exhaustion. However, those authorities are distinguishable because they proceeded on the premise that the statutory dispute resolution mechanism established under the Physical and Land Use Planning Act was available to the parties. That premise does not obtain in the present case where the statutory Liaison Committee has admittedly not been operationalized within Kajiado County. 7. Finally, I am not persuaded that the present objection satisfies the threshold established in **Mukisa Biscuit**. The Plaint raises issues extending beyond the legality of the enforcement notice. It challenges, inter alia, the legality of the zoning regulations, the validity of approvals issued by the County Government and alleged violations of the Plaintiff's proprietary rights. The determination of those issues necessarily requires an examination of the pleadings and evidence and cannot be disposed of as a pure point of law. 8. In the final analysis, I find that the doctrine of exhaustion cannot be invoked where the statutory forum established by Parliament has not been operationalized by the very public authority seeking to rely upon it. The law cannot compel litigants to pursue a remedy that is unavailable both in law and in fact. To uphold the Preliminary Objection would be to sanction a denial of access to justice and permit the County Government to benefit from its own continuing failure to discharge its statutory obligations. 9. Accordingly, I find that the **Notice of Preliminary Objection dated 7th October 2025 is devoid of merit and is hereby dismissed with costs to the Plaintiff.** 10. The suit shall proceed to hearing and determination on its merits. It is so ordered. **Dated, Signed and Delivered at Kajiado Virtually this 30th Day of July 2026.** **M.D. MWANGI** **JUDGE** **In the virtual presence of:** Ms. Gichana h/b for Ms. Wachira for the Plaintiff Mr. Owiti for the 1st and 2nd Defendants N/A by the 3rd Defendant Court Assistant: Alex **M.D. MWANGI** **JUDGE**