Makupa Transit Shade Ltd & another v Kenya Ports Authority & another (Civil Appeal 44 of 2014) [2015] KECA 721 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed TAL Group companies' bid to force Kenya Ports Authority to grant them a lease, ruling judicial review remedies cannot fix private land disputes.
What this practically means
#Executive summary
#Key legal issues
#Whether prohibition could issue against the grant of an interest to the 2nd respondent
Prohibition could not issue; the permission (a wayleave/non-exclusive easement) had already been granted and no certiorari was sought to quash it, so a prohibitory order would be futile.
The evidence showed the 1st respondent had granted a 'no-objection' permission and some form of interest in the nature of a wayleave or non-exclusive easement had already crystallised. Prohibition looks to the future only, and a court will not issue orders in vain. Without a certiorari prayer, the initial decision would remain intact regardless of any prohibition.
Whether mandamus could compel the 1st respondent to grant a lease
Mandamus could not issue because no public duty to grant a lease existed; the 1st respondent had only statutory discretion under section 12 of the KPA Act to dispose of its property.
The order of mandamus must be directed to the performance of a public duty imposed by clear statute. The 1st respondent had power, not obligation, to lease its assets, and where the statute leaves discretion as to performance, mandamus cannot command a specific outcome. The appellants also held no specific legal right, having fulfilled none of the 2002 conditions and having delayed for years.
Whether legitimate expectation was established
Legitimate expectation was not established; the conditions in the 2002 representations were never fulfilled, the claim was stale, and legitimate expectation cannot be used to perpetuate an illegality.
Applying the Communication Commission of Kenya principles, there was no clear and unambiguous promise it was lawful for the decision maker to make. The plot negotiated in 2002 was not the same land, conditions were unfulfilled, and the appellants took far too long to react. Further, the court doubted whether legitimate expectation is even a ground within the narrow Law Reform Act framework of judicial review in Kenya.
Competence of the affidavits sworn by the 1st respondent's employees
The affidavits were competent; section 61 of the KPA Act does not require the authority to be filed with the affidavit, and it sufficed for the deponents to state they were duly authorised.
Section 61(1) permits delegation to any person and grant of powers of attorney but does not require the delegate to hold powers of attorney. Section 61(2) permits acts to be signified by an authorised employee's hand. The appellants bore the evidential burden of showing the deponents were not authorised, which they failed to discharge.
Whether judicial review and constitutional jurisdictions may be combined
They may not; judicial review is a special, narrow jurisdiction under the Law Reform Act and Order 53 which should never be mixed with constitutional jurisdiction, and a party must make an election.
Although Article 23 permits courts to grant judicial review reliefs in enforcement of the Bill of Rights, that only applies where constitutional jurisdiction has been properly invoked. A litigant cannot come by judicial review proceedings and expect judicial review orders premised on infringement of constitutional rights. The appellants had wittingly or unwittingly roped in constitutional jurisdiction improperly.
The High Court's gratuitous direction that KPA consider granting a way-leave
The direction was set aside as a court sitting in judicial review jurisdiction cannot approbate and reprobate by issuing unenforceable, gratuitous directions after rejecting the prayers sought.
The High Court had rejected the specific prayers before it, yet went on to direct the respondent to consider granting a way-leave. Such directions were gratuitous in nature, incapable of enforcement, and inconsistent with the rejection of the prayers.
Legal principles established
#- An order of prohibition is prospective only and cannot be employed to prevent or undo that which has already taken place; where no certiorari is sought to quash an existing decision, prohibition issues in vain.
- Mandamus against a public body lies only to compel performance of a clear public duty imposed by statute; where the statute vests discretion, the court cannot dictate the manner of its exercise.
- Judicial review is concerned with the decision-making process, not private rights or the merits of the decision.
- Judicial review jurisdiction is a special and narrow jurisdiction which should not be mixed or combined with constitutional jurisdiction; a party must make an election.
- An affidavit sworn on behalf of a corporate body by an authorised employee need not be accompanied by proof of that authority; the burden lies on the challenger to demonstrate lack of authority.
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- 2.The High Court's gratuitous final directions (that the respondent consider granting the ex-parte applicant a way-leave on the suit property) are set aside
- On appeal from
- High Court of Kenya at Mombasa
- Judicial Review application by Chamber Summons dated 20th September 2012 (ex-parte Notice of Motion under Order 53)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the High Court in judicial review proceedings (Law Reform Act, Cap 26; Order 53 of the Civil Procedure Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Multiple Hauliers EA Limited v Yazad (Civil Case E023 of 2022) [2025] KEMC 30 (KLR)[2025] KEMC 30 (KLR)10 Mar 2025followed
Cite this brief
#Cite this brief
Caselaw, "Makupa Transit Shade Ltd & another v Kenya Ports Authority & another (Civil Appeal 44 of 2014) [2015] KECA 721 (KLR)", Case Analysis (2015). Court of Appeal at Mombasa, Civil Appeal (Judicial Review) - appeal against High Court Judicial Review application dismissal. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/721/eng@2015-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.