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Court of AppealDismissedNot stated in the judgment

Municipal Council of Mombasa v Republic; Umoja Consultants Ltd (Interested Party) (Civil Appeal 185 of 2001) [2002] KECA 8 (KLR)

Court of Appeal of Kenya
1 November 2002
RKR. O. KwachROR. S. C. OmoloEOE. O. O'Kubasu
2,901 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped Mombasa's council from collecting advertising fees it raised without following the legally required procedure — unlawful demands need not be paid.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Kwach, Omolo and O'Kubasu JJA) dismissed an appeal by the Mombasa Municipal Council against a ruling of Waki J delivered on 15 January 2001, which partly allowed the judicial review application of Lightways Ltd, Lightex Ltd, Advertising Materials Ltd, Eye Catchers Ltd and Aruns Arcade and prohibited the Council from collecting revised advertising fees under Gazette Notice No. 3613 or from demolishing, removing, defacing or repainting advertising signboards or prosecuting advertisers pursuant to it. The Council, relying on Kenya National Examinations Council v Republic, Ex Parte: Geoffrey Gathenji Njoroge & Nine Others, argued that the Gazette Notice was mere evidence of a decision already made, so that prohibition could not lie; only certiorari could have quashed that decision, and the six-month limitation period for certiorari had long passed. The Court accepted the general principle that prohibition normally pre-empts contemplated action outside the decision-maker's jurisdiction or contrary to law, and reaffirmed that judicial review concerns the decision-making process, not the merits of the decision. It nevertheless distinguished the Examinations Council case: there the decision was communicated and nothing further was demanded, whereas here the Council demanded money on the basis of a decision whose making and date nobody could establish. Fairness required a public body to bring its decisions to the attention of those affected, and a statutory body may act only as its statute authorizes. Because a by-law in Part IV of the Schedules to the Building Code already governed advertisement fees, the Council had to follow the amendment procedure in Part XIX of the Act; not having shown compliance, its demand was ultra vires and amenable to prohibition. The Court upheld the rejection of prohibition against the collection agent, Umoja Consultants Ltd, that aspect not being under appeal. The appeal was dismissed with costs to the respondents; the Third Party was denied costs.

Questions the Court framed

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

  1. 1.Whether the remedy of prohibition lies only to pre-empt decisions intended to be made, or also to pre-empt contemplated action such as the enforcement of a demand (ground 3 of the memorandum of appeal).
  2. 2.Whether the publication of Gazette Notice No. 3613 meant that the Council had already made its decision, so that prohibition did not lie and certiorari was the only remedy (ground 4 of the memorandum of appeal).
  3. 3.Whether the increased fees and charges were raised in the manner authorized by the Local Government Act, and whether their enforcement could be prohibited.

Key legal issues

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01

Whether an order of prohibition lies only against decisions intended to be made, or also against contemplated enforcement action (ground 3).

Holding

Prohibition normally issues to stop or pre-empt contemplated action that is outside the decision-maker's jurisdiction or where the decision-maker has evinced an intention to act contrary to law; the trial Judge rightly prohibited the Council from collecting the impugned fees and from the threatened demolition, removal, defacement, repainting and prosecutions.

Reasoning

The Court accepted the appellant's general proposition drawn from the Kenya National Examinations Council case but held it was not absolute. Prohibition addresses the decision-making process and contemplated action outside jurisdiction or contrary to law. Here the Council threatened to collect fees, demolish or deface signboards and prosecute advertisers on foot of a demand with no basis in law; such contemplated enforcement was amenable to prohibition.

p. 4
02

Whether Gazette Notice No. 3613 was itself the decision or mere evidence of a decision already made, so that only certiorari (now barred by limitation) could have intervened (ground 4).

Holding

The Gazette Notice was not the decision but information about an undisclosed decision; where the Council never disclosed when or how the decision was made, the respondents were entitled to prohibit enforcement of the demand rather than being confined to certiorari. The Kenya National Examinations Council case was distinguished.

Reasoning

Even on appeal no party produced the decision itself; the Council said it was no part of its duty to help the respondents prove their case. The Court held that fairness required a public body to bring its decision to the attention of those affected. Unlike the Examinations Council case, where the cancellation was communicated and nothing further was demanded, here the Council actively demanded money on the basis of an unknown decision.

p. 5
03

What is the proper scope of judicial review?

Holding

Judicial review is concerned with the decision-making process - jurisdiction, hearing of affected persons, and relevant or irrelevant considerations - not with the merits; a review court is not entitled to act as a court of appeal over the decider.

Reasoning

The Court reiterated that whether the fee increases were justified was not in issue; only the process leading to the decision mattered. Questions such as whether the decision-maker had power, whether affected persons were heard, and whether relevant or irrelevant matters were taken into account are for judicial review; sufficiency of evidence goes to the merits and is outside its province.

p. 4
04

Whether the increased fees and charges were imposed in the manner authorized by the Local Government Act.

Holding

Section 148 permits fees to be imposed only through by-laws or, where no by-law exists, resolutions of the Council; as a by-law (Part IV of the Schedules to the Building Code) already governed advertisement fees, the Council had to follow the amendment procedure in Part XIX of Cap. 265, which it could not show it followed. The demand was ultra vires and amenable to prohibition.

Reasoning

The trial Judge found the Council evasive: it displayed minutes evidencing the collection agent's appointment but said nothing about the decision to increase charges and dismissed the relevance of the Building Code. The Gazette Notice merely conveyed information to the public. The Court of Appeal upheld the conclusion that the Council, a statutory body, could act only as authorized by its statute and in the manner authorized.

p. 5
05

Whether prohibition could issue against the Interested Party's collection of the fees as the Council's agent.

Holding

It could not: the decision appointing the collection agent had been made and publicized, was not challenged by certiorari within six months, and there was no appeal or cross-appeal on that aspect of the ruling.

Reasoning

The Court agreed with Waki J that the respondents were misguided on this limb: the appointment could have been lawful or unlawful, but once made and made known, the remedy was certiorari within the limitation period, which had passed; crying foul more than a year after publication would attract legal censure. That aspect was not before the Court on appeal, so the endorsement is not the ratio of the appellate decision.

p. 3

Legal principles established

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  • Judicial review is concerned with the decision-making process, not with the merits of the decision; a review court is not entitled to act as a court of appeal over the decider.
  • An order of prohibition may issue to stop or pre-empt a contemplated action that is outside the decision-maker's jurisdiction or where the decision-maker has evinced an intention to act contrary to law.
  • A statutory body may do only what the statute creating it authorizes, and only in the manner the statute authorizes; action taken otherwise is ultra vires and amenable to prohibition.
  • Where a public body demands money on the basis of a decision whose making and date were never disclosed, those affected may seek prohibition against the demand without first quashing the decision by certiorari.
  • A demand which has no basis in law need not be paid, and its enforcement, together with the threatened consequences such as demolition, defacement or prosecution, may be prohibited.
  • Once a public body makes a decision, common sense and fairness require it to bring that decision to the attention of those affected by it.

Court orders

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  1. 1.The appeal is dismissed.
  2. 2.The costs of the appeal are awarded to the respondents.
  3. 3.The Third Party is not entitled to any costs.

The bench

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

RK
majority
RO
majority
EO
majority
On appeal from
High Court of Kenya at Mombasa
Jurisdiction invoked
Not stated in the judgment; the appeal lay to the Court of Appeal from the High Court at Mombasa, but no constitutional or statutory provision conferring appellate jurisdiction is cited.

Relief refused

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The appellant's appeal against the order of prohibition (grounds 3 and 4 of its memorandum of appeal; grounds 1 and 2 were abandoned).

The Court was satisfied that the learned trial Judge came to the correct decision and upheld his judgment.

p. 5

Prohibition against the Interested Party (Umoja Consultants Ltd) collecting the increased fees as the Council's agent - the limb of the respondents' claim rejected by the trial Judge.

The decision appointing the collection agent had been made and publicized and was not challenged by certiorari within the six-month limitation period; there was no appeal or cross-appeal on that aspect.

p. 3

Costs

The appeal was dismissed with the costs thereof to the respondents; the Third Party is not entitled to any costs.

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.

we order that this appeal be and is hereby dismissed with the costs thereof to the respondents. The Third Party is not entitled to any costs.
p. 5Final orders - appeal dismissed, costs to respondents, no costs to Third Party
judicial review is concerned with the decision -making process, not with the merits of the decision itself.
p. 4Scope of judicial review
by and large an order of prohibition would normally issue to stop or pre-empt a contemplated action where such contemplated action is either outside the jurisdiction of the decision- maker, or where the decision maker has evinced an intention to act contrary to law.
p. 4When prohibition lies
It is a statutory body and can only do that which is authorized by the statute creating it and do it in the manner authorized by the statute.
p. 5Powers of statutory bodies; ultra vires
the respondents were perfectly entitled to seek an order of prohibition to stop the appellant from demanding money from them on the basis of some unknown decision.
p. 5Prohibition against enforcement of an undisclosed decision
I agree with them that the enforcement of a demand which has no basis in law is amenable to an order of Prohibition.
p. 4Prohibition against unlawful demands (trial Judge, approved on appeal)
The Gazette Notice was not a decision. It was conveying information to members of the public
p. 3Gazette notice as information, not the decision itself
common sense and fairness would demand that once the appellant made the decision, it was its duty to bring it to the attention of those afiected by it.
p. 5Duty of public bodies to publicize decisions

Issues in the judgment

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material

The date of Gazette Notice No. 3613 is stated inconsistently within the judgment: it is first said to have been published on 5th June 1999, elsewhere described as 'Gazette Notice No. 3613 of 25th July, 1999', quoted in the respondents' prayer as 'Gazette Notice No. 3613 dated 25/6/1999', and once referred to as 'Gazette Notice No. 3613 of 25th July, 2000'.

minor

The judgment identifies Umoja Consultants Ltd as the 'Interested Party' throughout, but the final order refers to a 'Third Party' who is nowhere identified in the judgment, leaving unclear whether they are the same entity.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Municipal Council of Mombasa v Republic; Umoja Consultants Ltd (Interested Party) (Civil Appeal 185 of 2001) [2002] KECA 8 (KLR)", Case Analysis (2002). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/8/eng@2002-11-01

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