Makupa Transit Shade Limited & another v Kenya Ports Authority & another [2015] KECA 891 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that judicial review cannot be used to win private land disputes or force a statutory body to grant you a lease.
What this practically means
#Executive summary
#Key legal issues
#Competence of affidavits sworn for a statutory corporation under section 61 of the KPA Act
No evidence of board authority or power of attorney need accompany an affidavit deponed by an authorised employee; the assertion of due authorisation suffices unless disproved
Section 61(1) permits delegation of powers to any person but does not require the delegate to be granted powers of attorney. Section 61(2) permits any act of the Board to be signified under the hand of an authorised employee. The trial court did not presume the deponents' knowledge of Board proceedings; it found authority could be shown, and the burden of disproof lay on the appellants.
Further affidavit filed without notice or leave in judicial review proceedings
The High Court properly rejected the further affidavit because Order 53 rule 4(2) requires prior notice, and admitting it would have prejudiced the respondents
Order 53 rule 4(2) confers a wide but judicial discretion to allow further affidavits dealing with new matter, conditioned on the applicant giving notice of intention. The appellants filed their further affidavit after pleadings closed and directions given, without notice, leaving respondents no opportunity to respond. Admitting it would amount to ambush and violate fair trial.
Whether the appellants acquired a legally recognised interest in the plot
No legal, beneficial or equitable interest arose: the 2002 conditions were unfulfilled, there was no formal lease compliant with section 3 of the Law of Contract Act, accretion was unproved, and delay attracted limitation and laches
The 2002 correspondence imposed conditions never proved fulfilled and never crystallised into a formal lease. Committee recommendations were not Board decisions and were never communicated or accepted. Reclamation was the 1st respondent's work and the accretion doctrine therefore inapplicable. The claim was also stale, caught by limitation and laches.
Legitimate expectation
Legitimate expectation was not established, and in any event is not, in Kenya, a standalone ground for the grant of judicial review orders of mandamus and prohibition
Adopting the Communications Commission principles, there was no clear and unambiguous promise, the conditions were unfulfilled, the plot had changed through the 1st respondent's reclamation, and the appellants delayed too long. More fundamentally, Kenyan judicial review under the Law Reform Act is confined to excess or absence of jurisdiction, breach of natural justice and blatant illegality; legitimate expectation does not fit within those grounds, nor can it perpetuate an illegality.
Efficacy of prohibition
Prohibition could not issue because the wayleave permission to the 2nd respondent had already been granted and the appellants sought no certiorari to quash it, so a prohibitory order would issue in vain
Citing Kenya National Examination Council v Republic and Municipal Council of Mombasa v Republic, prohibition is pre-emptive and prospective. The 'no-objection' permission was already a done deal. Because the appellants omitted a prayer for certiorari, the underlying decision would remain intact and the court will not issue orders in vain.
Efficacy of mandamus
Mandamus could not issue because no statute imposed a public duty on the 1st respondent to grant a lease, and the discretion under section 12(2)(k) of the KPA Act cannot be dictated by the court
Mandamus is limited to enforcement of a specific legal right coupled with a clear, unqualified public duty. The 1st respondent had only discretionary power to dispose of its property, and where a statute leaves discretion as to mode of performance, mandamus cannot command performance in a specific way. The appellants also had no established legal right and any contractual claim belongs to civil, not judicial review, jurisdiction.
Procedural fairness of the refusal of the bridge permit
There was no breach of natural justice: the Board minutes provided an opportunity for the appellants' request to be deliberated, which they pre-empted by rushing to court
Section 12(2)(a) of the KPA Act conferred jurisdiction on the Authority to permit or refuse construction of a bridge. The 2012 Board minutes recorded that the request could be reviewed and that the Board was requested to deliberate on the TAL Group requests. The appellants' complaints about the 2008 decision, procurement law and the Constitution were misdirected: the 2008 decision was not the subject of the prayers, the Constitution and Land Act were not in force then, and judicial review does not examine merits.
Legal principles established
#- An order of prohibition is prospective only and cannot be used to quash or stop that which has already been done
- Mandamus lies only to compel performance of a clear public duty imposed by statute, not to dictate how a statutory body exercises a discretion or to enforce private contractual claims
- Judicial review is concerned with the decision-making process, not private rights or the merits of the decision
- Judicial review jurisdiction and constitutional jurisdiction must not be mixed; a party must make an election between them
- It is sufficient for a corporate deponent to assert that he was duly authorised to swear an affidavit; the burden then lies on the challenger to prove otherwise, and no power of attorney need be filed
Court orders
#- 1.The appeal is dismissed
- 2.The appellants to pay costs to the respondents
- 3.The gratuitous final directions of the High Court recommending grant of a wayleave to the ex-parte applicant are set aside
- On appeal from
- High Court of Kenya at Mombasa
- Mombasa C.& J. Review Misc. C. App. No. 77 of 2012
- Jurisdiction invoked
- First appellate jurisdiction under the Law Reform Act and Order 53 of the Civil Procedure Rules (judicial review appeal); the judgment notes Judicial Review Jurisdiction 'operates within narrow confines of the Law Reform Act and order 53 of the Civil Procedure Rules'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makupa Transit Shade Limited & another v Kenya Ports Authority & another [2015] KECA 891 (KLR)", Case Analysis (2015). Civil Appeal No. 44 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/891/eng@2015-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.