Civil Appeal Civil Appeal No 54 of 2014: Mutanga Tea & Coffee Company Ltd v Shikara Limited & Another
In the Court of Appeal, Dr. Wamuti Ndegwa represented the respondent developer against the by the objector. Dr. Ndegwa successfully defended and obtained a judgement dismissing the appeal and holding amongst other things that,
- The Physical Planning Act does not allow a person who is challenging a Development Permission to sidestep the elaborate dispute resolution procedures and take the grievance to the High Court (or E.L.C). The persons including owners of adjacent properties who claim that they were not served with notice of application for change of user or the application for development permission are not entitled to ignore the provisions of the Physical Planning Act and instead, invoke the original jurisdiction of the High Court.
- A holistic and purposive reading for the Article 159(2) (c) of the Constitution is that the unlimited jurisdiction of the High Court in Article 165(3) (a) of the Constitution recognises and accommodated the alternative mechanisms for resolving disputes.
- The alternative statutory mechanisms for resolving disputes normally have advantage over the High Court since the disputes are resolved by experts and the process expedited.
The duty to invoke the alternative mechanisms for resolving disputes is a constitutional. Therefore, failing to exhaust the alternative procedure before lodging a dispute in the High Court is not a mere technicality. It deprives the High Court jurisdiction.
The Appeal was dismissed with costs to the Respondent developer and Appellant ordered to pay costs of the Appeal awarded to the developer.
Judgement delivered on July 31, 2015 and reported in http:www.kenyalaw.org in 2015 eKLR.
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