Lashad Mohamed Mubarak v County Government of Mombasa [2020] eKLR Case Summary

Court
Environment and Land Court at Mombasa
Category
Civil
Judge(s)
Justice Munyao Sila
Judgment Date
September 17, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the Lashad Mohamed Mubarak v County Government of Mombasa [2020] eKLR case summary, analyzing legal nuances and implications in this pivotal judgement impacting local governance.


Case Brief: Lashad Mohamed Mubarak v County Government of Mombasa [2020] eKLR

1. Case Information:
- Name of the Case: Lashad Mohamed Mubarak (Suing through his appointed attorney Abdilahi Salim Badri) v. The County Government of Mombasa
- Case Number: JR No. 14 of 2019
- Court: Environment and Land Court, Mombasa
- Date Delivered: 17th September 2020
- Category of Law: Civil
- Judge(s): Justice Munyao Sila
- Country: Kenya

2. Questions Presented:
The central legal issue before the court was whether the Environment and Land Court had jurisdiction to hear the judicial review application concerning the revocation of planning and development permission, given the existence of a dispute resolution mechanism under the Physical and Land Use Planning Act, 2019.

3. Facts of the Case:
The applicant, Lashad Mohamed Mubarak, is the owner of Plot No. 149 Section II Mainland North in Mtopanga, Kisauni Sub-County, Mombasa County. He authorized Abdilahi Salim Badri to act on his behalf. On April 2, 2019, Mubarak applied for development permission to construct a building on his land, which was initially approved on May 8, 2019. However, this approval was revoked on August 27, 2019, by the County Executive Committee member on the grounds that the land was located on a road reserve. In response, Mubarak sought judicial review to quash the revocation, restore his development permission, and prohibit further actions against his construction.

4. Procedural History:
Mubarak filed an application for leave to commence judicial review proceedings on September 19, 2019, which was granted. The respondent raised a preliminary objection, arguing that the suit should have been filed with the County Physical and Land Use Planning Liaison Committee under the Physical and Land Use Planning Act, 2019. The court invited written submissions from both parties regarding the preliminary objection.

5. Analysis:
Rules:
The relevant statute considered by the court was the Physical and Land Use Planning Act, 2019, which outlines the procedures for obtaining development permission and provides a mechanism for dispute resolution. Specifically, Section 61(3) allows aggrieved parties to appeal decisions regarding development permission to the County Physical and Land Use Planning Liaison Committee.

Case Law:
The court referenced the case of *Samson Chembe Vuko v. Nelson Kilumo & 2 Others (2016)eKLR*, which established that where a clear procedure for redress is prescribed by law, that procedure must be followed. The court also considered cases involving judicial review where it was held that the existence of alternative remedies does not preclude judicial review, particularly when addressing procedural issues.

Application:
The court acknowledged its jurisdiction to hear judicial review applications but emphasized that it should defer to the statutory dispute resolution mechanism unless special circumstances exist. Since no justification was provided for Mubarak's failure to appeal to the Liaison Committee, the court determined that he should first exhaust this mechanism before invoking judicial review.

6. Conclusion:
The court upheld the preliminary objection, striking out the judicial review application. It advised the ex parte applicant to file his complaint with the County Physical and Land Use Planning Liaison Committee, extending the time for appeal by an additional 14 days. The ruling underscores the importance of adhering to statutory dispute resolution mechanisms.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8: Summary
The court ruled in favor of the respondent, determining that the applicant should have pursued the established dispute resolution process under the Physical and Land Use Planning Act, 2019, before seeking judicial review. The decision highlights the necessity for parties to exhaust statutory remedies before approaching the courts, reinforcing the framework for land use planning and development in Kenya.

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