[2020] KEHC 10383 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 43 OF 2020

IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF RIGHTS

OFFUNDAMENTALFREEDOMS UNDER ARTICLE 47

OF THE CONSTITUTION OF KENYA, 2010

AND

IN THE MATTER OF: THE COUNTY GOVERNMENT ACT 2012

AND

IN THE MATTER OF: PHYSICAL & LAND USE PLANNING ACT,

NO.13 OF 2019 OF THE LAWS OF KENYA

AND

IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION

ACT, NO.4 OF 2015

BETWEEN

MBESA INVESTMENTS LIMITED.............................................PETITIONER

VERSUS

THE COUNTY GOVERNMENT OF MOMBASA................ RESPONDENT

AND

FAHAD IQBAL AHMED BAYUSUF.....................1ST INTERESTED PARTY

MUSLIMS FOR HUMAN RIGHTS .................... 2ND INTERESTED PARTY

RULING

The Applicant

1. By a Petitiondated 1st July, 2020, and filed herein on 2nd July, 2020, the Petitioner prays for the following orders:-

i. A Declaration that the Respondent has violated the Petitioner’s rights under Article 47 of the Constitution.

ii. A Declaration that the suspension vide a Letter dated 24thJune 2020 by the Chief Officer is null and void.

iii. Such other and or further relief as this Honourable court may deem fit and just to grant; and

iv. The costs of and occasioned by this Petition be provided for.

2. The Petitioner, a Limited Liability Company, avers that it was established for the purposes of developing Two 10 Storey building together with Ground Floor on the beach front in Nyali. In pursuit of the project the Petitioner identified and acquired parcels of land being Land Parcel No.MN/1/3412, MN/1/5503 and MN/1/5504. This acquisition was driven by the strategic location of the land and its close proximity to the beach in Nyali. After the said acquisitions, the Petitioner began the process of obtaining the requisite statutory approvals and licences from relevant agencies including from the National Environment and Management Authority (NEMA). The Petitioner also applied for a change of user in respect to the project land, and secured a “no objection” declaration form the District Physical Planner, District Surveyor and District Land Officer. The Petitioner also placed advertisements in the Standard NewspaperandThe Daily Nation both appearing on 27thand28th April 2015 with a view to inform the public about the intended change of user. The application for change of user was approved on 25th September 2015. The Petitioner avers that the approvals and notifications from the relevant agencies with respect to the project were submitted to the Director County Planning Architecture. Pursuant to the said approvals the Ministry of Lands also forwarded the revised rent valuation which the Petitioner paid. The project was approved by NEMA on 14th April, 2020.

3. Having obtained the licenses and all the necessary approvals, the Petitioner pushed ahead with the project, arranging for financing, mobilization of resources, promoting the project and securing customers as the consultants finalized the building plans, construction contract and other arrangements to ensure the timely completion of the project. The Petitioner then made arrangements to commence construction, and it submitted to the Respondent detailed plans for issuance of Certificate of Approval as well as stamping in line with the prior notification of approval which had already been given.

4. The Petitioner avers that on 26th June, 2020 it obtained all the requisite approvals and commenced construction work on the project, but was shocked to receive an Enforcement Notice (hereinafter called “Enforcement Notice”) from the Respondent purporting to stop and suspend the construction which was already underway on grounds that neighbours were not happy with the project, and that there were still some outstanding issues.

5. The Petitioner avers that the said Environment Notice was issued in violation of the Petitioner’s constitutional rights guaranteed under Articles 47, 27, 22 and 23of the Constitution.

6. The Petitioner is therefore in this Court to challenge the said Enforcement Notice dated 24th June 2020, and to restore the alleged constitutional violations.

Ex-parte Order

7. Together with the Petition, the Petitioner filed an application also dated 1st July, 2020 seeking Conservatory Orders to Stay the implementation and the enforcement of the said Enforcement Notice pending the determination of the application inter-partes.

8. Upon being satisfied that the Petitioner/Applicant had an arguable case, this Court issued a Conservatory Order Staying the enforcement and implementation of the said Enforcement Notice issued by the Respondent on 24th June, 2020, and allowed the project to proceed on Plot No.MN/1/3412, MN/1/5503 & MN/1/5504, pending the determination of the application inter-partes.

The Response

9. Upon the Petition and application being served, the Respondent filed a Notice of Preliminary Objection on 13th July 2020 stating as follows:-

1) That this suit is inconsistent with Article 162(2) (b) and

Section 13 of the Environment and Land Court No.19 of 2011 in that this Honourable Court lacks the requisite jurisdiction as the proper and special jurisdiction pertaining land use is vested on the Environment and Land Court.

2) That this suit offends Section 72(3) of the Physical and Land Use Planning Act No.13 of 2019, that provides for a procedure to be adhered to and/or an avenue for the Petitioner herein to seek redress, however the Petitioner has failed to appreciate the provision of the Physical and Land Use Planning Act No.13 of 2019 and moved this Honourable court improperly.

3) That this is inconsistent with Section 78 of the Physical and Land Use Planning Act No.13 of 2019.

4) That no authority has been given to either Hussein Sharriff Alwy or the Firm of Balala & Abed Advocates to sign an Affidavit on behalf of the Petitioner and to represent the Petitioner respectively bearing in mind this is a Company and a Resolution has not been passed to support the representation thus their acts are ultra vires as a Board Resolution is a prerequisite when instituting legal proceedings.

5) That this Petition is a “fishing expedition” and a back door means to achieve orders unjustly as there are several matters (ELC Case No.70 of 2020 – Fahad Iqbal Ahmed Bayusuf –vs- Mbesa Investments Ltd & 2 Others), ELC Constitutional Petition NO.16 of 2020 – Lydia Kaguna Japeth & 2 Others –vs- Mbesa Investments Ltd & 2 Others) touching on the same subject matter before the Environment and Land Court thus this Honourable Court is being misused to circumvent the law.

The 1st Interested Party

10. Before the application could be heard the 1st Interested Party herein applied to be joined to these proceedings in that capacity on the grounds that his property being L.R.No.MN/1/5193 was within very close proximity to that of the Petitioner, and that any development in the Petitioner’s property will negatively affect the 1st Interested Party. The 1st Interested Party also stated that he had filed a suit in the Environment and Land Court on 1st July 2020 being ELC Case No.3 of 2020 (Now No.70 of 2020) – Fahad Iqbal Ahmed Bayusuf –vs- Mbesa Investments Limited & 2 Others, which case is intricately connected with the Petition herein, and the Interested Party sought to be enjoined to this Petition on those grounds.

11. By a Ruling of this Court delivered on 5th October 2020, the 1st Interested Party was joined to this Petition in that capacity.

12. Having joined the 1st Interested Party to these proceedings, the court also lifted the interim Conservatory Orders which were issued ex-parte on 3rd July 2020, so that all parties can be heard on that issue on equal footing.

The 2nd Interested Party

13. Apparently annoyed by the lifting of the Order stopping the aforesaid construction or the project, the 2nd Interested Party, Muslims for Human Rights, sought to be joined to these proceedings as 2nd Interested Party ostensibly to protect the alleged rights of more than 200 workers who were employed in the construction or project site, and who alleged that their right to wages were violated pursuant to the lifting of the Conservatory Orders on 5th October 2020.

14. Their application for joinder dated 16th October, 2020 was unanimously consented in terms of Prayers 1and2 by all parties herein, and Muslims for Human Rights was admitted herein as the 2nd Interested Party. This joinder then paved the way for the hearing of the Respondent’s Preliminary Objection aforesaid, and which is the subject of this Ruling.

Submissions

15. The Preliminary Objection was canvassed through written submissions.

16. The Respondent filed submissions on 19th October 2020. Mr. Tajbhai, Learned Counsel for the Respondent submitted that this court lacks the requisite jurisdiction to entertain this matter because this Petition is anchored on the Physical & Land Use Planning Act,2019. Counsel submitted that the Petitioner’s dispute arises from a matter touching on land use and planning. In that regard, Mr. Tajbhai cited Article 162(2), stating that the matters complained of in the Petition are within the domain of the Environment and Land Court pursuant to Section 13 of the Environment and Land Court No.19 of 2011 Act which states as follows:-

(1) The Court shall have original and appellate jurisdiction tohear and determine all disputes in accordance with Article 162(2)(b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.

(2) In exercise of its jurisdiction under Article 162(2)(b) of the

Constitution, the Court shall have power to hear and determine disputes—

a) relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;

(b) relating to compulsory acquisition of land;

(c) relating to land administration and management;

(d) relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and

(e) any other dispute relating to environment and land.

17. Mr. Tajbhai referred the Court to the Supreme Court in Samuel Kamau Macharia & Another..Vs..Kenya Commercial Bank [2012]eKLR, which held that:-

“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with Counsel of the first and 2nd Respondents in his submissions that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings….. where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the Constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.”

18. Mr. Tajbhai further submitted on Section 72(3) of the Physical and Land Use Planning Act No.13 of 2019, which states as follows:-

“(3)Where a person on whom an enforcement notice has been served is aggrieved by that notice, that person may appeal to the relevant County Physical and Land Use Planning Liason Committee within fourteen days of being servedwith the Notice and the Committee shall hear and determine the Appeal within thirty days of the Appeal being filed”.

19. For that reason, Mr. Tajbhai submitted that the Petitioner did not exhaust the available statutory mechanisms for settling the dispute, and decided to come to this Court prematurely. Counsel submitted that the Petitioner was tasked to appeal to the County Physical and Land Use Planning Liason Committee within 14 days after issuance of the Enforcement Notice. Mr. Tajbhai referred to Republic..Vs..National Environment Management Authority, Civil Appeal No.84 of 2010, where the High Court stated:-

“The principle running through these cases is where there was an alternative remedy and especially where Parliament had provided a Statutory Appeal procedure, it is only in exceptional circumstances that an order for Judicial Review would be granted, and that in determining whether an exception should be made and Judicial Review granted, it was necessary for the court to look carefully at the suitability of the Statutory Appeal in the context of the particular case and ask itself what in the context of the statutory powers, was the real issue to be determined and whether the Statutory Appeal procedure was suitable to determine it….”

20. Counsel submitted that jurisdiction is everything, and where a court has no jurisdiction it should down its tools immediately. Counsel citedMukhisa Biscuit Manufacturing Co. Ltd…Vs…West End Distributors Company Limited (1969)EA 696, as follows:-

“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. Examples are on objection to the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the Contract giving rise to the suit to refer the dispute to arbitration.”

21. Mr. Tajbhai further submitted that under Section 9of theFair Administrative Action Act No.4 of 2015, the High Court or a Subordinate Court under Subsection (1) is expressly prohibited from and “shall not” review an administrative action or decision under that Act unless the mechanisms including internal mechanisms for Appeal or Review and all remedies available under any other written law are first exhausted.

22. Mr. Tajbhai also raised the issue as to whether Hussein Shariff Alwy or the Firm of Balala & Abed Advocates have authority to act for the Petitioner. Counsel submitted that the Petitioner in this instant suit is a Company registered and Incorporated under the Companies Act. Before it can institute a suit the same must be authorized by its Board. In Bugerere Coffee Growers Ltd…Vs…Seraduka & Another (1970) EA 147, it was held in dismissing the suit;

“that when Companies authorize the commencement of legal proceedings, a Resolution or Resolutions have to be passed either at a Company of Board of Directors’ Meeting and recorded in the Minutes, but no Resolution had been passed authorizing the proceeding in the case”.

23. Mr. Tajbhai further submitted that the Petitioner has not fulfilled the requirements of Order 4 rule 1 sub rule 4 bearing in mind there is no authority attached to the Petition or a Company Seal affixed on the Verifying Affidavit. Counsel submitted that neither Hussein Shariff Alwy nor the Firm of Balala & Abed Co. Advocates had the express authority to swear an Affidavit on behalf of the Ex-parte Applicant or institute legal proceedings as no Board Resolution has been annexed, or a Company Seal affixed on the Verifying Affidavit of Hussein Shariff Alwy.

24. Mr. Tajbhai further submitted that the Petition is a “fishing expedition” and a back door means to achieve Orders unjustly. Counsel cited Section 6 of the Civil Procedure Act, which states as follows:-

“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed”.

25. Mr. Tajbhai submitted that there was a suit filed prior to this matter that is Mombasa ELC Case No.70 of 2020 – Fahad Iqbal Ahmed Bayusuf -vs- Mbesa Investments Ltd & 2 Otherstouching on the same issues raised in the application and Petition herein save for the fact that Petitioner was sued in that matter. Furthermore, there is another suit Mombasa ELC Constitutional Petition No.16 of 2020 – Lydia Kaguna Japeth & 2 Others –vs- Mbesa Investments Ltd & 2 Others touching on the same issues. Counsel argued that the Environment and Land Court is the proper court with competent jurisdiction to deal with the issues raised in this instant Petition and that the Petitioner can seek redress and defend its position in ELC Constitutional Petition No.16 of 2020 – Lydia Kaguna Japeth & 2 Others –vs- Mbesa Investments Ltd & 2 Others. Therefore, no prejudice will be occasioned to the Petitioner if this suit is dismissed.

26. Mr. Buti, Learned Counsel for the 1st Interested Party filed submissions on 9th October, 2020. Counsel adopted the submissions of Mr. Tajbhai. Mr. Buti submitted that the Petition is expressed to be brought pursuant to Article 47of theConstitution, The Fair Administrative Action Act, 2015,andPhysical & Land Use Planning Act, 2019,and that although the Petition has been described as a Constitutional Petition, it bears all the hallmarks of Judicial Review proceedings, and has nothing to do with any violation of the Rights or Freedoms of the individual.

27. Further, Mr. Buti adopted the submissions of Mr. Tajbhai on the Physical and Land Use Planning Act, 2019, and submitted that this Petition is premature and the Petitioner failed to exhaust statutorily available mechanisms to address the issue and so the Petition should be struck out.

28. Mr. Buti further referred to Section 78 of the Physical and Land Use

Planning Act, which provides in mandatory terms that:-

78. The functions of the County Physical & Land Use Committee shall be to;

(d) hear Appeals with respect to Enforcement Notices.

29. Therefore, Counsel submitted that any grievances the Petitioner may have had concerning the Enforcement Noticedated24th June 2020, should have been addressed to the committee established under Section 78 above.

30. Mr. Buti further submitted under Section 93ofPhysical and Land Use Planning Act, this Court lacks the jurisdiction to entertain the matter. Section 93 of the Act, provides as follows:-

93. All disputes relating to Physical and Land Use Planning, before establishment of the National and County Physical and Land Use Planning Liason Committee shall be heard and determined by the Environment and Land Court.

31. Counsel submitted that it is the Environment and Land Court established under Article 162(2)(b) of the Constitution that has jurisdiction to hear and determine disputes arising under the Act, before establishment of the committees, and that this Court lacks the requisite jurisdiction in this matter.

32. Mr. Saeed, Learned Counsel for the Petitioner filed his submissions on 1st December 2020 and submitted on 2 issues namely, whether theEnforcement Noticedated24th June 2020is in compliance withSection 72(1)& (2)of thePhysical and Land Use Planning Act;and whetherthis court has jurisdiction to hear this Petition.

33. As to the 1st issue Mr. Saeed referred to relevant of the Physical and Land Use Planning Act as follows:

Section 72;

72. (1)A county executive committee member shall serve the owner, occupier, agent or developer of property or land with an enforcement notice if it comes to the notice of that county executive committee member that—

a) a developer commences development on any land after the commencement of this Act without the required development permission having been obtained;

or

b) any condition of a development permission granted under this Act has not been complied with.

(2) An enforcement notice shall—

a) specify the development alleged to have been carried out without development permission or the conditions of the development permission alleged to have been contravened;

b) specify measures the developer shall take, the date on which the notice shall take effect, the period within which the measures shall be complied; and

c) require within a specified period the demolition or alteration of any building or works or the discontinuance of any use of land or the construction of any building or the carrying out of any other activities.

(3) Where a person on whom an enforcement notice has been served is aggrieved by that notice, that person may appeal to the relevant County Physical and Land Use Planning Liaison Committee within fourteen days of being served with the notice and the committee shall hear and determine the appeal within thirty days of the appeal being filed.

34. Counsel submitted that whilst the Respondent and the 1st Interested Party seek to rely on Section 72(3) of the Act, they conveniently ignore Section 72(1)and(2). Counsel submitted that the Enforcement Notice dated 24th June 2020 issued by the Respondent, other than the heading, does not meet the requirements as provided by Section 72(1)and(2) of the Physical and Land Use Planning Act.The Respondent has issued a document purporting to be an Enforcement Notice yet the same is not in compliance with the prescribed law. Mr. Saeedsubmitted that the Respondent should be estopped from relying on the Physical and Land Use Planning Act as they have failed to comply with the same from inception. Further, that Section 72 of the Act applies only to Enforcement Notices lawfully issued by the Respondent. In the present case the Respondent has failed to issue a lawful Enforcement Notice. Counsel submitted that Section 72(1) (a&b) of the Act empowers the County Executive Committee member to issue an Enforcement Notice on only two grounds. Firstly, where a developer commences development on any land without the required development permission having been obtained. Secondly, where any condition of a development permission granted under the Act has not been complied with. Counsel submitted that the Respondent cites complaints from neighbours as the reason for the issuance of the Enforcement Notice. Counsel submitted that this is not a reason required under Section 72(1) (a&b) of the Act. It was submitted that having failed to meet any of the two grounds, the Respondent’s actions to serve the Petitioner with an Enforcement Notice is ultra vires their statutory duty.

35. On the second issue, that is, whether this court has jurisdiction to hear this Petition, the Petitioner submitted that its cause of action against the Respondent is for an infringement of its Constitutional right to a fair administrative action. The dispute in essence is the arbitrary actions of the Respondent to suspend the works and project of the Petitioner outside of the law. Mr. Saeed submitted that Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act do not apply, as the dispute raising the cause of action is the action of the Respondent to suspend the operations of the Petitioner arbitrarily and unlawfully. The Petitioner’s Constitutional right to fair administrative action has been infringed. It is on this basis that the Petitioner approached this court.

36. The Petitioner further submitted in relation to ELC Case No.70 of 2020 – Fahad Iqbal Ahmed Bayusuf –vs- Mbesa Investment & 2 Others,stating that the case was filed on 25th June, 2020 and pleadings served upon Petitioner a day before the Petitioner filed this Petition. The Petitioner submitted that it would not have been humanly possible to include or to disclose the said case in this Petition as the process of filing this Petition was already on course. Nonetheless, the Petitioner submitted that both the present PetitionandELC Case No.70 of 2020 relate to different causes of action. In the ELC Case No.70 of 2020, the Applicant is seeking for an order of permanent injunction restraining the Petitioner from constructing its project; and another permanent injunction against the Respondent herein from issuing an approval of the Petitioner’s project. In this Petition, it was submitted that the Petitioner’s cause of action is against the Respondent for an infringement on its Constitutional right to a fair administrative action. Therefore, it was submitted for the Petitioner that whereas these two cases both touch on the suit properties, they are as different as day and night and that each should proceed in the courts where they are.

37. Mr. Otieno, Learned Counsel for the 2nd Interested Party filed his submissions on 30th November, 2020. Counsel submitted in parity with Mr. Saeed Learned Counsel for the Petitioner. Counsel submitted that the 2nd Interested Party opposes the Preliminary Objection and asserts that this Court has the requisite jurisdiction to hear and determine this matter. Mr. Otieno submitted that the Petition relates to the exercise of administrative power by the County Government to arbitrarily suspend ongoing works at a construction site and to direct that persons offering labour services on the site be forthwith removed from that site. Counsel submitted that violation of rights and freedoms are within the jurisdiction purview of the High Court by dint of Articles 23of theConstitution.

38. Further, Mr. Otieno submitted that the purported Enforcement Notice issued by the Respondent is and was not an enforcement notice issued under Section 72 of the Act. And since the same did not comply with Section 72(1)(a)and(b), it was not a valid Notice under Section 72.

39. It was submitted that the impugned decision by the Respondent violated the fundamental rights and freedoms of the Petitioner and the 2nd Interested party. Counsel submitted that Article 23 of the Constitution provides that the High Court has jurisdiction, in accordance with Article 165, to hear and determine application for redress of a denial, violations or infringement of, or threat to, a right or fundamental freedom in the Bill of rights.

40. Mr. Otienoreferred to Section 78 of the Act which provides that 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. Mr. Otieno submitted that the Respondent has no power to even entertain the complaint by the 1st Interested Party or any neighbour once it had issued a development permit to the Petitioner. Section 78(b) provides that only the County Physical and Land Use Planning Liaison Committee can hear Appeals from decisions arising from approvals of development plans. If the 1st Interested Party was in any way aggrieved against the decision to issue the development permit, he had a right to lodge an Appeal to the Committee. The County Executive had no power to entertain an Appeal arising from the issuance of a development approval under the Act. Counsel submitted that the development permit issued to the Petitioner has never been lawfully challenged in any appropriate forum in the manner provided by law and it remains valid to date.

Analysis and determination

42. I have carefully considered the Preliminary Objection and submissions by all parties and authorities cited. The issue for determination remains whether this Court has the jurisdiction to entertain the Petition herein. To do that the following sub-issues emerge for determination.

i. The Constitutional value of the Enforcement Notice as it relates to the Petitioner and to the 2nd Interested Party.

ii. Whether the Environment and Land Court has the jurisdiction

in this matter.

iii. Validity of the Enforcement Notice dated 24th June, 2020.

iv. The exhaustion doctrine.

i) The Constitutional value of the Enforcement Notice

43. It has been submitted by the Respondent and the 1st Interested Party that there is no constitutional value in the Petition to warrant the jurisdiction of this Court to hear and determine the Petition herein. These opponents to the Petition aver and maintain that the issue before the court relates to Environment and Land Use and should be canvassed in the Environment and Land Court.

44. In my view, to unravel this issue the starting point must be the Article 165(3)(b) of the Constitution which gives the High Court the jurisdiction;

“….to determine the question whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or threatened..”

45. As I understand it, the only issue which brought the Petitioner to this Court was to invalidate the Enforcement Notice dated 24th June 2020. The issue then is to establish whether or not the said Enforcement Notice threatened a right or a fundamental freedom which was being enjoyed by the Petitioner, and, the 2nd Interested Party. As I have stated in the foregoing paragraphs, the Petitioner commenced the preliminary aspects of the project in 2015. It invested money and time and expertise in the project all these years. It identified contractors, and suppliers of materials and indeed made provision for every aspect of the project, satisfying all forward and backward linkages in contract formations, supplies and other aspects of the project. This was an involving exercise, both in terms of financial input, and human resource involvement. Every aspect of the project was meticulously carried out, investigated and approved by the County Government of Mombasa. On 4th April 2020, NEMA approved the project. These approvals then paved way for the Petitioner to commence construction in the project site, and sometime before 24th June 2020, the construction started on the site, and the construction workers, whose interests are catered herein by the 2nd Interested Party, moved to site to earn their daily bread. In my view therefore, the Petitioner had acquired a bundle of rights when he secured all the approvals required under the law to start the project. As contracted workers in the site, the 200 construction workers whose interests are represented by the 2nd Interested Party equally acquired a bundle of rights, including the right to earn wages in a lawfully established construction site to which they have contracted their labour. These accrued rights for the Petitioner and for the workers represented by the 2nd Interested Party are what were, and are, threatened by the said Enforcement Notice issued by the Respondent on 24th June 2020. They amount to economic rights which are protected under Article 43of theConstitution, and the Petitioner has every right to invoke Article 165 (3)(b)of theConstitution to have this Court protect these rights.

46. Even then, granted that the Respondent can indeed issue the said Enforcement Notice, the Petitioner has submitted, correctly in my view, that any such action must still be anchored in the law. The Petitioner avers that the said Enforcement Notice was issued incomplete violation of Article 47 of the Constitution and the Fair Administrative Action Act. Article 47 of the Constitutionstates as follows:-

47. (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action,the person has the right to be given written reasons for the action.

(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall—

(a) provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and

(b) promote efficient administration.

47. The Petitioner avers that the manner in which the said Enforcement Notice was issued violated Petitioner’s fundamental rights under Article 47, and indeed this is the reason the Petitioner has come to this Court. This is a matter to be investigated by this Court and not in this Ruling. Suffice it to say that this Court has the authority to entertain any alleged claim on violation of rights under Article 47of theConstitution and the Fair Administrative Action Act.

ii) Whether the Environment and Land Court has the jurisdiction in this matter.

48. A related submission has been made that the complaints herein should be addressed by the Environment and Land Court under Article 162(2) of the Constitution and Section 13of theEnvironment and Land Court Act No.19 of 2011, and that indeed there are ongoing matters in the ELC related to the suit herein.

49. There is no doubt in my mind that there will be occasional situations where the High Court and the Environment and Land Court, and indeed other sister courts could have concurrent jurisdiction on a particular issue. However, there will always be one court which, on the particular issue before the court, has more abundant jurisdiction. More so, in my view, if the issue herein arose before proceedings in an ELC case, that court would be able and indeed should deal and determine the constitutional issue within the proceedings. But if the constitutional issue is the sole basis for commencement of proceedings, and if it is an isolated issue which can be determined in isolation, then the High Court must be allowed to proceed and entertain the matter.

50. Now, in this Petition, it is alleged that an Environment and Land Court Case No.70 of 2020 – Fahad Iqbal Ahmed Bayusuf –vs- Mbesa Investments & 2 Others was filed on 25th June, 2020. That allegation is true. This Petition was filed on 2nd July 2020. The Petitioner avers that it had not been served with the ELC matter, and he could not have taken notice thereof.

51. Be that as it may be, I have carefully looked at the said ELC Case and the prayers made therein. They are as follows:-

a) Permanent injunction restraining the 1st Defendant by itself, agents, servants and/or any other person acting on its behalf from constructing the Ten(10) & eighteen (18) Storey Building on all that parcel of land known as Plot No.5503/Sec.1/MN, Plot No.5504/Sec.1/MN and Plot No.3412/Sec.1/MN.

b) A permanent injunction restraining the 2nd and 3rd Defendants by themselves, agents, servants and/or any other person acting on their behalf from approving the construction of the Ten (10) and eighteen (18) Storey Building on all that parcels of land known as Plot No.5503/Sec.1/MN, Plot No.5504/Sec.1/MN and Plot No.3412/Sec.1/MN.

c) A declaration that the previous approvals by the 2nd and 3rd Defendants for the construction of the Ten (10) and eighteen (18) Storey Building was null and void.

d) Costs of this suit.

e) Any other relief the Honourable Court may deem fit and just to grant.

52. Section 13of theEnvironment and Land Court sets out the jurisdiction of the Environment and Land Court to include disputes relating to environment planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, tents, valuations, mining, minerals and other natural resources, relating to compulsory acquisition of land, land administration and management, relating to public, private and community land and contracts, choses in action or other instruments granting enforcement interests in land and any other dispute relating to environment and land.

53. The dispute before this Court presented by the Petitioner does not relate to the issues set out above. This is purely a dispute where it is alleged that the Respondent has acted in excess of its powers and violated the right to fair administrative action to suspend works at a construction site and direct labourers to leave site. It is a violation of rights and freedoms of the individual that has been affected and is being litigated.

54. Clearly, in my view, the orders sought in the said ELC matter are distinct. They are injunctive orders stopping construction in the suit property for reasons given therein, among them that the suit properties are in close proximity to the Plaintiff’s property, and that the approvals given should be cancelled.

55. In my view, the orders sought in the ELC can fully be granted or denied, without such action affecting the single issue for determination in this Petition. In this Petition, there is a single issue as to the constitutional validity of the Enforcement Notice issued by the Respondent on 24th June 2020. Therefore, I find and hold that this Court has the jurisdiction to entertain the Petition herein.

56. The other two remaining issues vis validity of the Enforcement Notice dated 24th June 2020. The exhaustion doctrine cannot be deferred in this Ruling consequent to my finding that this Court has the jurisdiction herein. O attempt to determine these issues will amount to determining the main application and the Petition. So I will not now consider these issues.

57. The upshot is that the Preliminary Objection herein filed by the Respondent on 13th July 2020 lacks merit and is dismissed with costs to the Petitioner. The costs shall be paid by the Respondent, and to the Petitioner only.

DATED, SIGNEDandDELIVEREDatMOMBASAon this10thday ofDecember, 2020

E. K. OGOLA

JUDGE

Ruling delivered via MS Teams in the presence of:

Mr. Buti Paul for 1st Interested Party

Mr. Tajbhai for Respondent

M/S Leah Ezekiel for 2nd Interested Party

M/S Leah holding brief Mr. Saeed for Petitioner

Ms. Peris - Court Assistant

NOTE: This Ruling was delivered by video-conference pursuant to various Practice Directives by the Honourable Chief Justice authorizing the appropriate use of technology to conduct proceedings and deliver rulings in response to the COVID-19 Pandemic.