https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4750

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLPET NO. E073 OF 2025** **YASHPY LIMITED..................................................................1ST PETITIONER** **HITEN VAGJIANI...................................................................2ND PETITIONER** **-VERSUS-** **CHARLES KARANI NYAMU..................................................1ST RESPONDENT** **CHIEF OFFICER-NAIROBI CITY COUNTY** **URBAN DEVELOPMENT & PLANNING...............................2ND RESPONDENT** **RULING** 1. The petitioners herein instituted the petition dated 21st August 2025, in which the 1st petitioner claims that they are the registered owners of LR. no. 1870/VIII/261 situated in peponi road, Westlands. This property adjoins a 9 metre public access road known as LR. no.1870/VIII/40/1, which not only serves the 1st petitioner but also other adjacent land parcels as well. The petitioners contend that the said access road was surrendered to the government and is therefore public property. 2. The petitioners’ case is that on or about the 1st of April 2020, the respondents undertook amalgamation of LR. no.1870/VIII/259 and LR. no.1870/VIII/260, which included the public access road that serviced all three parcels of land, which was illegal and that there was no public participation done. They further claim that on 14th March 2025, they requested for information on this amalgamation that included the public access road, in line with **Article 35** of the **Constitution** on access to information but received no response. 3. Thus, the petitioners pleaded that the respondents have violated the **Constitution** by depriving them of their property rights under **Article 40** and their right to information under **Article 35** of the **Constitution**. 4. Following this, the 1st respondent filed the notice of preliminary objection dated 23rd January 2025, which is coming up for determination, seeking to have the petition herein be struck out for the following reasons:- 5. ***That this honourable court lacks the competent jurisdiction to determine the matters raised in the Petition by virtue of Sections 61(3), 76, 78 and 80 of the Physical and Land Use Planning Act, 2019.*** 6. ***That the petition herein offends the doctrine of constitutional avoidance.*** 7. ***That the petition violates the doctrine of exhaustion, the petitioner having failed to pursue the available alternative statutory dispute-resolution mechanisms.*** 8. ***That this honourable court is divested of jurisdiction to hear and determine the petition herein, the dispute being one of amalgamation.*** 9. ***That in any event, this court’s jurisdiction in respect of amalgamation disputes is limited to its appellate jurisdiction on matters of law only.*** 10. The preliminary objection was canvassed through written submissions. The 1st respondent filed written submissions dated 12th May, 2026 in support thereof. He submitted that the petition concerns an amalgamation dispute relating to land development approvals, and that on this basis, this court lacks jurisdiction at first instance because the petitioners failed to exhaust the statutory dispute resolution mechanism established under the **Physical and Land Use Planning Act.** 11. He submitted that the jurisdiction to hear disputes arising from development permissions and amalgamation approvals has, in the first instance, been expressly vested in the County Physical and Land Use Planning Liaison Committee (“the Liaison Committee”)established under **Part VI** of **Act**, which should be referred to if aggrieved by the decision of amalgamation under **Section 61(3)** of the **Act**. It was submitted that it is only after the liaison committee renders its decision that an aggrieved party may approach this court on appeal pursuant to **Section 61(4)** of the **Act**. 12. The 1st respondent relied on the court of appeal decision in **Speaker of the National Assembly v James Njenga Karume [1992] eKLR**, where the court held that 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. He also relied on the case of **Mutanga Tea & Coffee Company Limited v Shikara Limited & another [2015] KECA 469 (KLR)**. 13. The 1st respondent’s submission is that the petitioners’ attempt to bypass the statutory framework and invoke this court’s original jurisdiction is therefore contrary to the doctrine of exhaustion and that this court, being divested of jurisdiction at first instance, must consequently down its tools in accordance with the decision in **Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd.** Further reliance was placed in the cases of **Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] eKLR (as cited in Owino v Piccadily Holdings Limited & 3 others; Kenya Railways Corporation & another (Interested Parties) (Environment and Land Constitutional Petition E083 of 2025) [2026] KEELC 551 (KLR)**, and **Benard Murage v Fine Serve Africa Limited & 3 Others [2015] eKLR.** 14. The petitioners filed their written submissions dated 6th July, 2026. While relying on the case of **William Odhiambo Ramogi & 3 Others v Attorney General & 4 Others**; **Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR**, and **Fleur Investments Limited v Commissioner of Domestic Taxes & another [2018] eKLR**, the petitioners submitted that there are exceptions to the general rule that is the doctrine of exhaustion of remedies. In this case, the preliminary objection fails to confine itself to issues of law and is rather concerned with facts. That the only way the court can ascertain the correctness or otherwise of the constitutional violations is to have the matter proceed to its logical conclusion. 15. I have considered the preliminary objection and the written submissions filed by the respective parties. The issue for determination is *whether the same is merited*. The 1st respondent argued that the petitioners have circumvented the laid down procedures in the **Physical and Land Use Planning Act** on resolution of disputes related to and arising out of amalgamation, which are meant for the County Physical and Land Use Planning Liaison Committee before filing the petition before this court. 16. A Preliminary Objection was described in the famous case of **Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696** as:- ***“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 an objection to the jurisdiction of the court 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.”*** 1. Jurisdiction is certainly a preliminary point of law, because without it, the court must down its tools, as it was held on the famous case of **The Owners of the Motor Vessel “Lilian S” Vs Caltex Oil (Kenya) Ltd (1989) KLR 1**, where Nyarangi, J A held as follows:- ***“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 1st respondent relied on the case of **Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR** which the court held as follows:- ***“The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:*** ***“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”*** 1. Further, he relied on the case of **Speaker of the National Assembly v James Njenga Karume [1992] eKLR,** which 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.”*** 1. **Section 61** of the **Physical and Land Use Planning Act Cap. 303** provides that:- ***“When considering an application for development permission, a county executive committee member—*** * 1. ***shall be bound by the relevant approved national, county, local, city, urban, town and special areas plans;*** 2. ***shall take into consideration the provision of community facilities, environmental, and other social amenities in the area where development permission is being sought;*** 3. ***shall take into consideration the comments made on the application for development permission by other relevant authorities in the area where development permission is being sought;*** 4. ***shall take into consideration the comments made by the members of the public on the application for development permission made by the person seeking to undertake development in a certain area; and*** 5. ***in the case of a leasehold property, shall take into consideration any special conditions stipulated in the lease.*** ***(2) With regards to an application for development permission that complies with the provisions of this Act and within thirty days of receiving an application for development permission, the county executive committee member may—*** * 1. ***grant the applicant the development permission in the prescribed form and may stipulate any conditions it considers necessary when granting the development permission; or*** 2. ***refuse to grant the applicant the development permission in the prescribed form and state the grounds for the refusal in writing.*** ***(3) An applicant or an interested party that is aggrieved by the decision of a county executive committee member regarding an application for development permission may appeal against that decision to the*** ***County Physical and Land Use Planning Liaison Committee within fourteen days of the decision by the county executive committee member and that committee shall hear and determine the appeal within fourteen days of the appeal being filed.*** ***(4) An applicant or an interested party who files an appeal under sub-section (3) and who is aggrieved by the decision of the committee may appeal against that decision to the Environment and Land Court.”*** 1. From the documents annexed to and produced by the 2nd Petitioner, who is the 1st Petitioner’s Director, the said public access road known as LR. NO.1870/VIII/40/1 was formed as a result of subdivision of LR. NO.1870/VIII/40 as per letter from the Ministry of Lands dated 17th February, 2012. Later on, the same road is said by the Petitioners to have been amalgamated together with Land Parcels LR. NO.1870/VIII/259 and LR. NO.1870/VIII/260 without any public participation. 2. From the statutory provisions of the Physical and Land Use Planning Act Cap. 303 quoted above, there are strict timelines for bringing complaints on development permissions, and it appears that the petitioners only learnt of the said amalgamation of the public access roads much later, because their letter requesting for reasons for the same addressed to the County Executive Committee Member for Urban Planning Nairobi is dated 18th November 2024, years after they claim the same to have already been taken over in the year 2020. Thus, the statutory timelines had already by-passed them and they could not bring the matter before the County Physical and Land Use Planning Liaison Committee. 3. However, the lapse of the statutory timelines does not mean that the petitioners herein are left without recourse in law. The court of Appeal sitting in Nyeri in the case of **Geoffrey Muthinja & another v. Samuel Muguna Henry & 1756 others [2015] eKLR** found that the doctrine of exhaustion does not oust the jurisdiction of the Court, but simply postpones it, as follows:- ***“The learned Judge correctly found, as we do, that article 21 of the Church’s Constitution did not oust the jurisdiction of the courts. Indeed, it could not. All it did in practical and pragmatic terms is postpone, permissibly in our view, the entry point by the courts and thus allow the Church, a voluntary organization, to have the first expansive go at resolving disputes within its ranks. That did not in any way deny the appellants and the plaintiffs in the various suits the right to a fair trial.”*** 1. Additionally, the Supreme Court in the case of **Judges & Magistrates Vetting Board & 2 others v Centre for Human Rights & Democracy & 11 others [2014] eKLR** held as follows:- ***“The ultimate power of interpretation of the Constitution, or the statutes, rests with the Court. The Courts, therefore, will always jealously guard their jurisdiction, and save it from being inappropriately curtailed. The preliminary question as to whether the High Court has jurisdiction, eminently falls in the first place to that Court. The High Court has the obligation to consider the question carefully, in the light of all relevant law, and on the basis of legal reasoning and of constructive precedent, thereafter determining whether or not it has jurisdiction in that particular instance. In a case such as the instant one, in which it was alleged that the Constitution’s fundamental rights and freedoms had been violated, the High Court, on a prima facie basis, indeed had the jurisdiction to determine whether or not it had jurisdiction, in the light of the ouster clause.”*** 1. Thus, the jurisdiction of the court is still intact in determining constitutional rights and infringements thereof, and the preliminary objection by the 1st respondent dated 23rd January, 2025 therefore lacks merit and it stands dismissed. Costs to be in the cause. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY ON** **THIS 23RD DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **23/07/2026.** ***In the presence of:*** *Mr. Benson Agunga - Court assistant* *Mr. Odek for the 1st Respondent* *Mr. Gothu for the Petitioner*