[2021] KEELC 4538 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. E001 OF 2020

MAANZONI OWNERS ASSOCIATION..........................................PLAINTIFF

(Suing through his officials

Isaac Kimilu-Chairman

Robert Mugo Wa Karanja-Treasurer

Susan Wanjiku Ngigi – Secretary)

VERSUS

PAMELA TUTUI.......................................................................1ST DEFENDANT

THE COUNTY PHYSICAL PLANNER,

MAVOKO SUB-COUNTY.......................................................2ND DEFENDANT

THE COUNTY GOVERNMENTOF MACHAKOS............3RD DEFENDANT

RULING

1. In the Application dated 16th September, 2020, the Plaintiff, through its officials, has sought for the following orders:

a) That an injunction be issued against the 1st Defendant by herself, her agents, servants and or representatives stopping all construction works on Land Reference number 19196 located in Maanzoni area, Mavoko sub county pending the hearing and final determination of this suit.

b) That the Officer Commanding Station, Kyumvi Police Station be directed and or to authorized to ensure the above orders are enforced.

c) That the costs of this Application be in the cause.

2. The Application is supported by the Affidavit of the Plaintiff’s Chairman who has deponed that the Plaintiff is registered under the Societies Act and that the Plaintiff’s membership is open to and comprises of persons who own land and reside in Maanzoni Estate within Mavoko Sub-County, Machakos County.

3. The Plaintiff’s Chairman deponed that the 1st Defendant owns a parcel of land known as Land Reference Number 19196 (the suit property) located in Maanzoni area and that on 20th August, 2020, the 1st Defendant, upon application to the 2nd Defendant, caused an advertisement to be placed in the Daily Nation Newspaper notifying members of the public on the Change of User for the suit property from a single dwelling to a multi-dwelling residential units (Maisonettes).

4. The Plaintiff’s Chairman deponed that the Plaintiff objected to the proposed project by informing the 2nd Defendant in writing; that the objection was premised on the grounds that land within Maanzoni estate was zoned and planned in the year 1994 as a low residential and agricultural area comprising 718 plots and that the Maanzoni area is a unique ecosystem teaming with wildlife which include the endangered Maasai Giraffe.

5. It was deponed that the 2nd Defendant is yet to formally respond to the Plaintiff’s objection; that the 1st Defendant has commenced development of the suit property in disregard to the fact that change of user has not been obtained and that the said development should be stopped.

6. In response, the 1st Defendant deponed that she is one of the joint owners of parcel L.R. Number 19196 situated at Maanzoni area, Mavoko Sub- County (herein referred to as the “suit property”) and that it is true that the owners of the suit property jointly did place an advert in the Daily Newspaper notifying the public of their intention to construct multi-units (Maisonettes) and inviting comments/objections within 14 days.

7. The 1st Defendant deponed that she is not aware of any government decision or Gazette Notice that has designated the larger Maanzoni area where the suit property is situated as an Animal sanctuary/Wildlife corridor or placed the powers to control development on the Applicants.

8. The 1st Defendant deponed that the sub-division of the larger Maanzoni area clearly shows that the whole area is sub-divided into 718 plots of 5 acres owned by private individuals; that no area is set aside for wildlife corridor as confirmed by the sub-division Map; that there are designated areas reserved for Wildlife; that a good number of the Applicant members have built and reside in Maanzoni; and that the Applicants are usurping powers that are reserved for the County Government.

9. According to the 1st Defendant, the Plaintiff is purporting to have powers to control the number of buildings on a five acre land in complete disregard of the terms and conditions granted to the Title holders by the Commissioner of Lands; that the Plaintiff’s members want to control, allow and deny them the use or access of a public road and that the 2nd and 3rd Defendants are aware of the nature of approvals granted or pending and did advise the 1st Defendant not to proceed with the construction of what is yet to be approved until they receive their response.

10. It was deponed that the 1st Defendant is in possession of approved plans for a building that the Applicant has stopped through the Order dated 22nd September, 2020 without following the right process as provided for under the Physical and Land Use Planning Act, 2019 and that the Applicant lacks the locus standi to institute the instant suit which is not only misconceived but also malicious and misplaced.

11. The Mavoko Sub-County Physical Planner deponed that the 1st Defendant made an application for change of user of L.R. No. 19196 to develop Maisonettes which was allowed by the County Physical Planner, Mavoko Sub County.

12. It is the 2nd Defendant’s case that in the course of development of her Mansionette, persons unknown to the 2nd and 3rd Defendants went and forcefully stopped the 1st Defendant and that upon investigations, they found out that the said people were send by the Applicant’s members to disrupt the same.

13. It was deponed that the application for change of user was unnecessary in the first place because the purpose of the use of the land was for residential purposes, which is a one of the special conditions as per the leasehold title; that special condition number 3 provides that “ the land shall be used for residential purposes only”and that after the 1st Defendant requested for change of user and development approvals were granted, her co-owners, who are all family members, are also building residential houses on the suit land and that they similarly made applications for change of user and for development approvals which are now under consideration by the 2nd Defendant.

14. According to the 2nd Defendant, before they could hear the application by the 1st Defendant’s co-owners, and within the window given for any objections, the Applicant filed a notice of objection to the application for change of user; that on 23rd September, 2020, they held a meeting at Mavoko offices and that the 2nd Defendant had not made a decision over the application for change of user and development approvals by the rest of the 1st Defendant’s co-owners.

15. It was deponed that from the conditions accompanying the title, there is no condition barring the construction of residential houses by a party who owns the land; that there is no development plan for Maanzoni area and that they rely on the special conditions on the leasehold titles when approving the application for development.

16. It was deponed by the 2nd Defendant’s representative that there are legal mechanisms provided for in the Physical and Land Use Planning Act of dispute resolution and that the Plaintiff should allow the 2nd Defendant to make a decision, and if they are not satisfied, appeal to the County Physical and Land Use Liaison Committee.

17. The Plaintiff’s counsel submitted that since no decision on the application of Change of User has been made, then it was proper for the Plaintiff/Applicant to approach this Court. Counsel relied on the case of Wanaina Kenyanjui & 2 others vs. Andrew Ng’ang’a [2013] eKLRwhere it was held as follows:

“…The Physical Planning Act in this regard in Sections 7 to 10 establishes municipal, district and national liaison committees, which are empowered to hear and determine appeals lodged by persons aggrieved by decisions made by local authorities under the Act…

This Honourable Court has unlimited original…However, in the present case no decision has been made by the named authorities that can be the subject of an appeal and the application of the procedures laid down in the two statutes. Arising from the perceived inaction by the concerned authorities, the Plaintiff has opted come to this court for relief, and rightly so, as Section 13(7) of the Environment and Land Court Act specifies that interim or permanent preservation orders including injunctions can be given by this court in the exercise of its jurisdiction. It is thus the finding of this Court that the Plaintiff has properly invoked the jurisdiction of this court…”

18. It was submitted that the 1st Defendant has been riding on approval issued in 2019 to proceed with construction of what is yet to be approved and is subject to change of user; that the Government has mapped wildlife corridors which include the Maanzoni area and that from the foregoing, it is evident that the Applicants have demonstrated that they have a prima facie case with high chances of success.

19. Having already demonstrated that the 1st and 2nd Defendants have failed to follow due process, it was submitted that such infringement of the laid down procedure in law cannot be allowed to continue merely because the Defendants may be eventually condemned to pay damages.

20. The Plaintiff’s counsel submitted that the 1st Defendant has demonstrated bad faith in commencing development in connivance with the 2nd Defendant while the process of change of user has not been completed and that if the injunctive orders are not granted, the Applicant’s objections to the change of user will be overtaken by events.

21. The 1st Defendant’s advocate submitted that the 1st Defendant did apply and was granted the requisite approval to construct a single Maisonette in May, 2019; that the Applicants have failed to distinguish between a pending application for approval to allow six low density private dwelling houses and the existing approval and that it is not the 1st Defendant who intends to build the other six Maisonettes.

22. It was submitted that in view of conditions 3 and 4 of the 1st Defendant’s title, the Applicants have no ground to challenge the issuance of a change of user to multiple dwelling houses and that under the Physical Planning Handbook by the Ministry of Lands, Maisonettes are defined as low density houses.

23. It was submitted by the 1st Defendant’s advocate that the Plaintiff has no colour of right to interfere with the 1st Defendant’s right in the suit property where the 2nd and 3rd Defendants have a statutory duty to approve developments and that the Application should be dismissed. Counsel relied on numerous authorities which I have considered.

24. On his part, the 2nd and 3rd Defendants’ advocate submitted that the application for change of user was unnecessary because of the special conditions accompanying the title; that condition number 3 provides that “the land shall be used for residential purposes only”and that the 1st Defendant did not seek to change the use of the land from residential to any other use.

25. It was submitted that the Plaintiff has violated the doctrine which provides that if there is an alternative dispute resolution mechanism, the same must first be resulted to and that there are no exceptional circumstance to allow the court to excuse the Plaintiff. Counsel relied on the case of Ndiara Enterprises Ltd vs. Nairobi City County Government [2018] eKLR where the Court of Appeal held as follows:

“Though the High Court can exempt a party from following such clear laid down procedures for redress of grievances before approaching it in the noble interests of justice, the learned Judge rightly found that the appellant had failed to prove there were exceptional circumstances in its case to warrant such exemption. Indeed, there are no apparent exceptional circumstances to justify such exception and which exception was also not sought. The High Court’s power to exercise its jurisdiction under Article 165 of the Constitution was therefore limited or restricted by statute in this instance as found by the Judge. The appellant had complained before this Court that the learned Judge erred in failing to appreciate that though there exists an alternative procedure for redress, the same was less convenient, beneficial and effective in its circumstances. However, that argument must be taken as an afterthought. The same was never raised or pursued before the High Court thus denying the Defendant the opportunity for rebuttal and denying this Court the benefit of the reasoning of the High Court on the same issue.”

26. It was submitted that it is now settled law that where a particular alternative mechanism of dispute resolution is provided before a party goes to court, that mechanism must first be exhausted; that the Application is premature because there is a detailed mechanism for dispute resolution provided under the Physical and Land Use Planning Act No. 13 of 2019 and that the said Act provides that decisions regarding land use shall be made by the County Planning authority which has the powers to approve or reject any application made regarding land use.

Analysis and findings:

27. The Plaintiff is seeking for injunctive orders to restrain the Defendants from construction works on Land Reference Number 19196 located in Maanzoni area, Mavoko Sub county (the suit property).

28. The conditions that have to be fulfilled before the court can exercise its discretion to grant a temporary injunction have been well laid out as follows: The Applicant has to show a prima facie case with a probability of success; the likelihood of the Applicant suffering irreparable damage which would not be adequately compensated by an award of damages and where the court is in doubt in respect of the two considerations, then the Application will be decided on a balance of convenience (SeeGiella vs. Cassman Brown & Co. Ltd (1973) EA 358 andFellowes and Son vs. Fisher [1976] I QB 122).

29. What amounts to a prima facie case, was explained in Mrao vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 case as follows:

“...In Civil cases, it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

30. The Plaintiff’s case is that the 1st Defendant is the owner of land number L.R. No. 19196 and that on 20th August, 2020, she published an advertisement in the newspaper seeking to change the user of the land from single dwelling to multi-dwelling residential units which was opposed by the Plaintiff’s members.

31. The Application for the change of user was opposed by the Plaintiff on the grounds that the area was zoned in 1994 as a low residential and an agricultural area; that the area is a unique ecosystem with wildlife including the endangered Maasai giraffe and that the area lacks a sewerage system.

32. According to the Plaintiff, the 2nd Defendant is yet to formally respond to the objection but the 1st Defendant has however commenced development of the suit property and that the continued construction will prejudice and occasion irreparable loss to the Plaintiff’s members.

33. The 2nd Defendant admitted that the 1st Defendant made an application for change of user of L.R No. 19196 to develop a mansionette which was allowed by the County Physical Planner, Mavoko Sub County and that after the 1st Defendant’s request for change of user and development approvals were granted, her co-owners, who are all family members, made applications for change of user and for development approvals which are now under consideration by the 2nd Defendant.

34. The 1st Defendant has annexed on her Affidavit the title document in respect of L.R No. 19196 measuring 1. 996 (the suit property).The said title shows the current registered owners to be Doris N. Manyara, Le Kina Koinari, Tutu Senteu, Koinari Tutu, Jennifer N. Rukahu, Joel Kyalo Kaindi, Pamela Mwikali Tutu and Emmanuel Makau Kaindi.

35. The title in respect to the suit land shows that the land is to be used for residential purposes only (see special condition number 3). According to the 1st Defendant, she is in possession of approvals that were granted to her in the year 2019 and that it is on the basis of the said approvals that she has commenced developing her portion of the suit land. Indeed, the approved development plans were annexed on the 1st Defendant’s Affidavit.

36. From the Affidavit of the 2nd Defendant, the other co-owners of the suit property are the ones who have applied for change of user of the suit property from single dwelling residential to multi dwelling residential units. The said application, according to the 2nd Defendant, is still pending consideration, and that in any event, the application for change of user was not necessary.

37. Although the suit property is registered in the names of eight (8) people as tenants in common, the Plaintiff opted to sue only one proprietor. This anomaly is fatal to the entire suit considering that the orders which are to obtain in this matter are binding on all the proprietors who have not been given an opportunity to be heard.

38. Indeed, the joinder of all the proprietors of the suit property was necessary considering that the 1st Defendant did obtain an approval to put up her single dwelling house in the year 2019 which is the basis of the ongoing construction. Therefore, it is the other co-owners of the suit property, who have not received approvals for the change of user of the land from single to multiple dwelling houses who will affected by the order of this suit. Having not joined the rest of the co-owners of the suit property, the order of injunction cannot issue.

39. In any event, the Plaintiff’s objection on whether the registered proprietors can be allowed to change the user of the land from single dwelling residential to multi dwelling residential units (Maisonettes) is still under consideration by the 2nd Defendant pursuant to the provisions of the Physical and Land Use Planning Act.

40. A person aggrieved by a decision of the County Planning Authority concerning the county physical and land use development plan or matters connected therewith, may within sixty days of receipt by him of notice of such decision, appeal to the County Physical and Land Use Planning Liaison Committee in writing against the decision in such manner as may be prescribed. Section 78 of the Act provides as follows:

“The functions of the County Physical and Land Use Planning Liaison Committee shall be to—

(a) hear and determine complaints and claims made in respect to

applications submitted to the planning authority in the county;

(b) hear appeals against decisions made by the planning authority with respect to physical and land use development plans in the county;

(c) advise the County Executive Committee Member on broad physical and land use planning policies, strategies and standards; and;

(d) hear appeals with respect to enforcement notices.”

41. The issue of a party exhausting the existing dispute resolution mechanisms provided under the law is now settled. In Speaker of National Assembly vs. Karume(1992) KLR 21,the Court of Appeal held as follows:

“Where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament,that procedure should be strictly followed. Accordingly, the special procedure provided by any law must be strictly adhered to since there are good reasons for such special procedures.”

42. In Geoffrey Muthinja Kabiru & 2 Others vs. Samuel Munga Henry & 1756 Others (2015) eKLR, it was held as follows:

“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 the moment a storm brews… The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the courts...This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”

43. In the matter of theMui Coal Basin Local Community (2015) eKLR, the court held as follows:

“The reasoning is based on the sound Constitutional policy embodied in Article 159 of the Constitution: that of a matrix dispute resolution system in the country. Our Constitution creates a policy that requires that courts respect the principle of fitting the fuss to the forum even while creating what Supreme Court Justice J.B. Ojwang’ has felicitously called an “Ascendant Judiciary.” The Constitution does not create an Imperial Judiciary zealously fueled by tenets of legal-centrism and a need to legally cognize every social, economic or financial problem in spite of the availability of better-suited mechanisms for comprehending and dealing with the issues entailed. Instead, the Constitution creates a Constitutional preference for other mechanisms for dispute resolution – including statutory regimes – in certain cases...”

44. The Plaintiff has not exhausted the procedure provided for by the Physical and Land Use Planning Act challenging the decisions of the 2nd Defendant. In fact, no decision has been made regarding the application for change of user of the suit property which is the basis of the current suit.

45. Considering that the 1st Defendant is in possession of the approval that was granted by the 2nd Defendant in the year 2019, and the 1st Defendant and the other co-owners of the suit property having made an Application for the change of user of the suit property, the question of whether the application for the said change of user should be allowed or not should be determined by the bodies created under the Physical and Land Use Planning Act.

46. Furthermore, there is no evidence before this court to show that the construction of Maisonettes on the suit property contradicts the special conditions stipulated in the title document or that the suit property falls within a designated Wildlife Corridor as alleged by the Plaintiff. Moreso, the Plaintiff has not exhibited any evidence to show that indeed that suit property falls within a zone designated by the County Government of Machakos, or the National Government as a single dwelling and not a multi-dwelling residential units.

47. For those reasons, it is my finding that the Plaintiff has not shown that it has a prima facie case with chances of success. The Application dated 16th September, 2020 is therefore dismissed with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF JANUARY, 2021.

O.A. ANGOTE

JUDGE