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Kimani v County Executive Member – Lands, Housing, Physical Planning and Urbanization & another (Environment & Land Petition 4 of 2019) [2022] KEELC 15197 (KLR) (8 December 2022) (Ruling)
Neutral citation:
[2022] KEELC 15197 (KLR)
Republic of Kenya
Environment & Land Petition 4 of 2019
JO Olola, J
December 8, 2022
IN THE MATTER OF
ARTICLES 19, 22, 23, 40, 47, 50 & 64 OF
THE CONSTITUTION OF KENYA
IN THE MATTER OF
GOVERNMENT LANDS ACTS AND THE TRUST LANDS ACT
IN THE MATTER OF
CONTRAVENTION OF RIGHTS OF REGISTERED PROPRIETOR
IN THE MATTER OF
PURPORTED SUSPENSION OF DEVELOPMENT APPROVAL
Between
Nancy Wangari Kimani
Applicant
and
County Executive Member – Lands, Housing, Physical Planning and Urbanization
1st Respondent
County Government of Nyeri
2nd Respondent
Ruling
1.By a notice of preliminary objection dated April 5, 2022, the respondents object to the petition on the grounds:
2.Following directions given herein on April 26, 2022, it was agreed that the preliminary objection be disposed of by way of written submissions. I have accordingly perused and considered both the petition and the objection as well as the submissions and authorities placed before me by the learned advocates representing the parties herein.
3.By her petition dated October 23, 2019, Nancy Wangari Kimani (the petitioner) prays for judgment against the county executive member lands housing physical planning and urbanisation (the 1st respondent) and the county government of Nyeri (the 2nd respondent) for:
4.Those prayers arise from the petitioner’s contention that on October 4, 2019 the 1st respondent suspended her approved development plan for the development of the said land parcel number Nyeri/Municipality Block 1/1404 pending determination of an alleged dispute over the ownership thereof.
5.The petitioner avers that she is the registered proprietor of the said parcel of land and that the respondents had on May 30, 2019 approved the development plan therefor. By purporting to suspend the same, the petitioner accuses the respondents of acting unreasonably on the basis of hearsay and without considering the losses the petitioner was likely to incur. The petitioner contends that the respondents have no legal power to suspend construction on extraneous reasons and that whatever the case, she had a right to be heard before any decision affecting her was made.
6.In their grounds of opposition both to the petition and a notice of motion application dated October 23, 2019, the respondents state:
7.By their preliminary objection herein the respondents now contend that the petition is a non-starter as the same offends the provisions of section 32(4) and (5) of the Physical and Land Use Planning Act which required the dispute to be first referred to the national physical and land use planning liaison committee from which an appeal lies to this court.
8.From a perusal of the petition and the grounds filed in opposition thereto, it was clear that this dispute was precipitated by a letter dated October 4, 2019 addressed to the petitioner by the 1st respondent. The letter signed by one Dr Kwai Wanjaria reads in the relevant portion as follows:
9.That the suspension indeed arose over a complaint on the authenticity of the petitioner’s documents can indeed be seen at paragraph 4 of the respondents’ grounds of opposition. That being the case, i was totally unable to comprehend the nexus between this petition and the said section 32 of the Physical and Land Use Planning Act. It is either that the respondents has not acquainted themselves with the said section of the law or they were bent on sending this court on a fool’s errand.
10.A simple perusal of the said section 32 of the Act reveals that it falls under part III of the Act which deals with “Types of physical and land use development plans” and that it applies to notices and physical and land use development plans. A wholistic reading of the entire section further reveals that the dispute that is envisaged to be referred to the national physical and land use planning liaison committee from which an appeal lies to this court under section 37(5) is a dispute on a plan for an area covering two or more counties and not an individual person suing the county as is the case herein.
11.That being the case the submissions by the respondents that the petitioner ought to have followed and exhausted the alternative mechanism provided under section 32(5) of the Act are as erroneous as they are false.
12.As Sir Charles Newbold P cautioned in Mukisa Biscuits Manufacturing Limited v West End Distributors [1969] EA 699;
13.In the matter herein, this was indeed the second preliminary objection being raised by the respondents after the first one was overruled on July 14, 2021 and it was clear to me that the intention is to derail the petition and to drag the matter in court. That practice ought to come to an end.
14.It follows that I find no basis for the preliminary objection dated April 5, 2022. I dismiss the same with costs to the petitioner.
RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT NYERI THIS 8TH DAY OF DECEMBER, 2022.In the presence of:Mr. Kimondo for the PetitionerNo appearance for the RespondentCourt assistant – Kendi.......................................J. O. OLOLAJUDGE
