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Court of AppealPartially AllowedCivil Appeal (Nairobi)

Njau & 5 others v City Council of Nairobi (Civil Appeal 74 of 1982) [1983] KECA 56 (KLR)

Court of Appeal of Kenya
28 June 1983
AKA.A KnellerAHA.R.W HancoxZCZ.R Chesoni
9,633 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~39 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that tenants directly harmed by a council's decisions have the right to sue the council in court.

What this practically means

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Executive summary

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Six tenants of monthly rooms in 137 Council houses at Shauri-Moyo, Nairobi sued the City Council of Nairobi by plaint in January 1981, seeking declarations that the Council's resolutions allocating 125 houses to persons claiming to be ex-Pangani residents were ultra vires and unlawful, and an order that the Council repossess the houses. The allocations had the effect of converting them into sub-tenants of new head tenants, raising rents and subjecting them to the Rent Restriction Act. Platt J dismissed the suit, holding the plaintiffs had no locus standi because they had shown no infringement of private rights or special damage beyond that suffered by the public, applying Gouriet v Union of Post Office Workers and the National Federation case. The Court of Appeal (Kneller, Hancox and Chesoni Ag JJA) unanimously allowed the appeal. It held that capacity to sue is a question of mixed law and fact; that the locus standi point, though not pleaded, was effectively in issue and caused no surprise; that the appellants, as tenants adversely affected by the resolutions, were the very people to challenge the Council and not busybodies; that this was not a relator action and the Attorney General had no necessary role; and that it would be unjust to shut them out of court. The suit was also correctly treated as a test action rather than a representative action. The High Court judgment was set aside and the action remitted to the trial judge for determination of the remaining issues, including ultra vires and infringement of private rights, with costs to the appellants here and below.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court judge erred in holding that the appellants had no locus standi when the point was neither pleaded in the defence nor raised as a preliminary objection
  2. 2.Whether the appellants, as tenants or sub-tenants adversely affected by the Council's resolutions, proved on the balance of probabilities that they had capacity to institute the action
  3. 3.Whether the action should have been brought as a relator action with the Attorney General, and whether the position of voters or ratepayers gave standing
  4. 4.Whether the suit was properly constituted as a representative action under order I rule 8 of the Civil Procedure Rules

Key legal issues

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01

Whether locus standi could be raised for the first time at final submissions when not pleaded

Holding

The point failed; although not pleaded in so many words, capacity was effectively in issue because the defence denied tenancy and voting rights, and the appellants were not taken by surprise.

Reasoning

The defence denied the appellants were tenants or voters, putting capacity in issue. Cross-examination was directed to their standing and the point was raised in final submissions with a full reply, so no surprise or prejudice arose. The court distinguished Bruce v Odhams Press as concerning special pleading in libel actions.

p. 4
02

Whether the appellants had locus standi as tenants adversely affected by the resolutions

Holding

Yes. As tenants of the rooms who were adversely affected by being turned into sub-tenants of the 125 new head tenants, they were the very people to challenge the Council and were not busybodies.

Reasoning

The action was not an application for prerogative orders requiring leave and sufficient interest in the judicial review sense; it was an ordinary suit brought as of right. The appellants' private tenancy interests were directly affected by the resolutions interpolating head tenants between them and the Council, raising rents and exposing them to the Rent Restriction Act and eviction.

p. 6
03

Whether the action should have been brought by the Attorney General as a relator action

Holding

No. The suit was in substance not relator proceedings but a claim by plaintiffs with a distinct private interest in their tenancies; it was unjust to shut them out of court.

Reasoning

The action did not involve infringement of a right of the public at large but of a particular class of tenants and sub-tenants of the 137 houses. Even if treated as relator proceedings, the proper course would have been to adjourn to allow the Attorney General to take over or be joined. Gouriet v Union of Post Office Workers was distinguished as concerning a public wrong with no private right or special damage.

p. 12
04

Whether the suit was properly brought as a representative action

Holding

It was wrongly constituted as a representative action but correctly proceeded as a test action by the individual appellants, since no notice under order I rule 8(2) was given to interested persons.

Reasoning

Counsel conceded the case was incorrectly brought as a representative action and rested on the individual appellants' case. The court accepted this, noting the action raised the same questions as those of all other sub-tenants and it would be a waste of time and costs to bring separate actions, citing Amos v Chadwick and Smith v Cardiff Corporation.

05

What is the court's role in reviewing a local authority's exercise of statutory discretion

Holding

The court's control is limited to ensuring the authority acted within its powers; it does not substitute its own view of desirable policy.

Reasoning

Drawing on Diplock LJ in Luby v Newcastle-Under-Lyme Corporation and Lord Diplock in IRC v National Federation, the court noted a local authority is accountable to a court of justice for the lawfulness of what it does, and the passage was offered to assist the High Court on remittal in determining the ultra vires question.

p. 5

Legal principles established

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  • Locus standi means the right to appear or be heard in court; a person without locus standi cannot be heard even on whether he has a case worth listening to, whereas lack of cause of action does not shut a person out of court.
  • Capacity to sue is a matter of mixed law and fact to be decided on legal principles, not a matter of discretion.
  • Tenants adversely affected by a local authority's resolutions affecting their tenancies have locus standi to challenge those resolutions and are not busybodies.
  • A local authority's management of its housing estates should be capable of being challenged in a court of law, subject to certain limits.

Court orders

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  1. 1.Appeal allowed with costs here and below to date
  2. 2.Action remitted to the High Court (Platt J) to answer the remaining issues, including whether the Council's resolutions were ultra vires and whether the appellants' private rights were infringed, after hearing further submissions

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AK
majority

Wrote the judgment

Kneller JA wrote the leading judgment. He held that capacity to sue is a matter of mixed law and fact decided on legal principles, that the appellants as tenants adversely affected by the Council's resolutions had locus standi, that the point was effectively in issue despite not being pleaded, and proposed allowing the appeal with costs and remitting the action to the trial judge for determination of the remaining issues.

Accordingly, in my view, the appeal should be allowed with costs here and below to date, and the action remitted to the learned judge to answer the remaining issues accordingly.p. 6
AH
concurring

Wrote the judgment

Hancox JA delivered a separate concurring judgment. He distinguished a representative action from a test action, traced the locus standi and sufficient-interest authorities including the National Federation and Gouriet cases, held that this was not a relator action and that the Attorney General had no necessary role, and agreed the appellants had locus standi.

I would hold that they had the necessary locus standi to bring the action and I would, accordingly, allow the appeal on that ground alone.p. 12
ZC
concurring

Wrote the judgment

Chesoni Ag JA delivered a separate concurring judgment. He distinguished lack of locus standi from lack of cause of action, held the suit was in substance not relator proceedings but a claim by tenants or sub-tenants aggrieved by the Council's action affecting their tenancies, and held it would be unjust to shut them out of court.

They had the capacity to sue and hence had the right to be heard and that is what is meant by locus standi.p. 14
On appeal from
High Court of Kenya
Jurisdiction invoked
First appellate jurisdiction over the High Court under the constitution/statute establishing the Court of Appeal (provision not expressly cited in the judgment)

Relief refused

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Determination of the remaining issues (ultra vires and infringement of private rights) by the Court of Appeal itself

The answers involved the credibility of witnesses who testified in the High Court, so those issues were remitted to the trial judge

p. 6

Costs

Appeal allowed with costs here and below to date

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, in my view, the appeal should be allowed with costs here and below to date, and the action remitted to the learned judge to answer the remaining issues accordingly. Hancox JA and Chesoni Ag JA agree, so those are the orders of this court.
p. 6Final orders - appeal allowed and remitted
I would allow this appeal, set aside the High Court judgment and remit the case back to the High Court for trial and determination of the issues.
p. 14Chesoni Ag JA's proposed disposition
I would hold that they had the necessary locus standi to bring the action and I would, accordingly, allow the appeal on that ground alone.
p. 12Hancox JA on locus standi
Lack of locus standi and lack of a cause of action are two difierent things.
p. 13Distinction between locus standi and cause of action
They had a locus standi because they were tenants of the respondent and adversely afiected by these resolutions.
p. 6Standing of adversely affected tenants

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njau & 5 others v City Council of Nairobi (Civil Appeal 74 of 1982) [1983] KECA 56 (KLR)", Case Analysis (1983). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1983/56/eng@1983-06-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.