Legal Advice Centre & 2 others v County Government of Mombasa & 2 others; Mombasa County Public Rental Estates Council & another (Interested Parties) (Civil Appeal 46 of 2017) [2018] KECA 381 (KLR)
The bottom line
#Kenya's Court of Appeal upheld Mombasa County's urban renewal project, ruling that meetings, press conferences and questionnaires amounted to adequate public participation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whose interests the appellants and the 1st interested party represent, and whether both may claim to represent the tenants
- 2.Whether the Mombasa County Urban Renewal and Redevelopment of Old Estates Programme was conceptualised and formulated with adequate public participation under Articles 10 and 174 of the Constitution and Sections 87 and 11(1) of the County Government Act
- 3.Whether the respondents breached the appellants' right of access to information under Article 35 of the Constitution
- 4.Whether the programme threatens the right to adequate housing under Article 43(1)(b) of the Constitution
- 5.Whether the programme breaches various statutory provisions listed in the petition (CGA, EMCA, Privatization Act, PPADA, Physical Planning Act, Public Private Partnerships Act)
Key legal issues
#Locus standi of competing representative bodies
Both the appellants and the 1st interested party could represent the tenants of the suit estates; divergent positions do not defeat standing under Articles 22 and 258 of the Constitution.
Relying on Mumo Matemu, the Court held that the 2010 Constitution enlarged standing; tenants may hold diverse opinions and multiple bodies may represent them. The 1st interested party could not be excluded merely because the appellants called it an amorphous body.
Adequacy of public participation in formulating the Urban Renewal Programme
The participation facilitated was adequate; consultation of tenants and dissemination through press conferences, briefings and questionnaires met the constitutional threshold.
Applying Doctors for Life and local precedent, the Court held the County had discretion over the medium of participation provided widest reach is ensured; not all residents needed to be consulted, only stakeholders given a reasonable opportunity. Requiring participation at the mere conceptualisation stage would be unreal.
Right to adequate housing under Article 43
The appellants failed to demonstrate any violation or threatened violation of the right to housing; the project in fact expands housing stock from 3,039 to over 31,000 units.
No evidence supported the claim that the County would retain only 20% of units, nor that the purchase price was unreasonable. The Court noted private partners are entitled to returns and have no constitutional obligation to provide free housing.
Alleged breach of statutory regimes and exhaustion
The statutory complaints were premature since regulatory approvals had not yet been sought, and statutory mechanisms must be exhausted before a constitutional petition.
The project was to be undertaken in stages with compliance required under the respective statutes at each stage; some processes such as the EIA had not commenced. Where statutory mechanisms exist, they must be exhausted first, following Okal v Telkom and Njenga Karume.
Legal principles established
#- Adequacy of public participation is determined case by case; the public body has discretion in choosing the medium provided it ensures the widest reach and affords a reasonable opportunity to be heard.
- The intensity of impact on an identifiable affected group shapes the degree of participation required; it is not necessary to consult every resident.
- Public participation must be real and substantive, not a formality or public relations exercise.
- A party alleging constitutional violation must prove it, not merely assert it.
- Statutory dispute-resolution mechanisms must be exhausted before resorting to a constitutional petition.
Court orders
#- 1.Appeal dismissed in its entirety
- 2.No orders as to costs, the matter being a public interest matter
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the excerpt
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court on a constitutional petition (constitutional/appellate jurisdiction; specific provision not stated in the excerpt)
Relief refused
#Declaration that the programme lacked adequate public participation and is null and void
The mechanisms used by the 1st respondent (meetings, press conferences, questionnaires, a dedicated department) amounted to adequate public participation; demanding participation at the conceptualisation stage would be unrealistic
Declaration that the project violates the right to adequate housing
No evidence that only 20% of units would be retained by the County, nor that the purchase price was exorbitant; appellants failed to demonstrate the violation
Declarations of breach of EMCA, PPADA, Physical Planning Act, Privatization Act and Public Private Partnerships Act
Complaint premature as regulatory stages had not commenced, and statutory dispute-resolution mechanisms ought to be exhausted first
Costs
No orders as to costs - 'Being a public interest matter we make no orders as to costs.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is clear that since the promulgation of the Constitution of Kenya 2010, the concept of public participation and consultation has been entrenched.
what matters in determining whether the constitutional threshold of public participation has been met is that at the end of the day a reasonable opportunity is ofiered to the members of the public and/or all interested parties to know about the issue/project and to have an adequate say on the same.
Public participation should always be real and not treated as a mere formality for the purposes of fulfilling the constitutional requirement. It is not a public relations exercise.
We are satisfied that there was extensive public participation in this matter and the learned Judge did not err in so finding.
The upshot of the foregoing is that we find no merit in the appeal which is hereby dismissed. Being a public interest matter we make no orders as to costs.
Issues in the judgment
#The excerpt does not contain the coram or case number/neutral citation header; judge titles and parties' full names are inferred from the delivery paragraph and body of the judgment
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.
Cite this brief
#Cite this brief
Caselaw, "Legal Advice Centre & 2 others v County Government of Mombasa & 2 others; Mombasa County Public Rental Estates Council & another (Interested Parties) (Civil Appeal 46 of 2017) [2018] KECA 381 (KLR)", Case Analysis (2018). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/381/eng@2018-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.