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Court of AppealDismissedCivil Appeal No. 274 of 2017

Ndiara Enterprises Ltd v Nairobi City County Government [2018] KECA 825 (KLR)

Court of Appeal of Kenya
16 February 2018
PWP. N. WakiASAsike-MakhandiaAMA. K. Murgor
4,712 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that land disputes belong in the Environment and Land Court, and you must exhaust statutory remedies before seeking judicial review.

What this practically means

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Executive summary

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The appellant, registered proprietor of land in Nairobi, sought judicial review orders of mandamus compelling Nairobi City County Government to demolish illegal structures on its property, evict trespassers, and approve its plans for a perimeter wall, alleging breach of its right to fair administrative action under Article 47 of the Constitution, the Fair Administrative Action Act and sections 29 and 30 of the Physical Planning Act. The High Court (Aburili, J.) dismissed the application, holding the judicial review proceedings incompetent, misplaced and misconceived: the court lacked jurisdiction because the appellant had not exhausted the statutory dispute-resolution mechanisms under the Physical Planning Act and the FAA Act, and because the disputes over occupation and eviction belonged before the Environment and Land Court. The respondent, though served, did not appear either at case management or at the plenary hearing of the appeal. The Court of Appeal, in a single judgment of the court, identified two issues: whether the High Court had jurisdiction, and whether mandamus was available. It affirmed the High Court on both. First, where a statute provides a clear procedure for redress, it must be followed; the appellant lodged no complaint with the liaison committees and proved no exceptional circumstances warranting exemption from exhaustion. Further, Article 165(5)(b) bars the High Court from ELC matters, and eviction and demolition orders affecting unjoined third parties require viva voce evidence. Second, mandamus compels only crystallized public duties; the appellant never complied with the conditions attached to the 2013 approval of its wall plans. The appeal was dismissed with costs to the respondent. This judgment binds lower courts to observe statutory exhaustion requirements and the ELC's exclusive jurisdiction over land occupation and eviction disputes.

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 was the proper forum or had the requisite jurisdiction to hear and determine the judicial review application
  2. 2.whether an order of mandamus was available to the appellant in the circumstances of this case

Key legal issues

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01

Whether the High Court's Judicial Review Division had jurisdiction over the appellant's application

Holding

It did not. The appellant bypassed the elaborate statutory dispute-resolution mechanisms under the Physical Planning Act and the FAA Act without proving exceptional circumstances justifying exemption, and the disputes concerning ownership, occupation and eviction fell within the exclusive jurisdiction of the ELC under Article 162(2).

Reasoning

The PPA provides an escalation from the liaison committee to the National Liaison Committee and thence to the High Court on appeal, and section 9(2) of the FAA Act prohibits judicial review before exhaustion of statutory remedies. No complaint was lodged and no exceptional circumstances were shown or even sought. Further, Article 165(5)(b) bars the High Court from matters reserved to the ELC, and mandamus proceedings on affidavit cannot resolve contested questions of occupation and eviction. The appeal court found the findings were based on sound law and evidence.

p. 4
02

Whether mandamus was available to compel demolition of structures, eviction of trespassers and approval of building plans

Holding

No. Mandamus compels performance of public duties but the duty to approve the plans had not crystallized because the appellant never complied with the conditions of the approval already granted, and the demolition/eviction orders could not issue in judicial review against absent third parties.

Reasoning

The respondent's City Planning Department had approved the perimeter wall plans in May 2013 subject to conditions such as structural details and certificates; the appellant did not aver compliance. As for the trespassers, their rights had to be ascertained through viva voce evidence in the ELC before eviction and demolition orders could be granted, since judicial review on affidavits is unsuited to resolving disputed facts.

p. 5
03

Whether the appellant's late argument that alternative remedies were less convenient, beneficial and effective could be entertained

Holding

No - it was an afterthought, never raised or pursued before the High Court, denying the respondent rebuttal and depriving the appellate court of the High Court's reasoning on the issue.

Reasoning

The court applied the principle that a party cannot raise a new ground on appeal that was not canvassed before the trial court. The argument was raised for the first time in submissions before the Court of Appeal and therefore could not be entertained.

p. 4

Legal principles established

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  • Where a clear and specific procedure for redress of a grievance is provided by statute, that procedure must be strictly followed, and a court reviewing administrative action under the FAA Act may not entertain the matter unless the mechanisms for appeal or review and all remedies available under any other written law are first exhausted
  • Once a court holds that it lacks jurisdiction, it must down its tools and take no further step in the matter
  • The High Court is barred by Article 165(5)(b) of the Constitution from entertaining matters falling within the jurisdiction of the Environment and Land Court established under Article 162(2), so judicial review is not available to resolve land ownership, occupation and eviction disputes involving third parties
  • Mandamus lies only to compel a statutory or public duty that has crystallized; where approval is conditional, an applicant must show compliance with the conditions before claiming the duty has been breached

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the respondent

The bench

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

PW
majority
AS
majority
AM
majority
On appeal from
High Court of Kenya at Nairobi (Judicial Review Division)
H.C. Misc. Civil Application No. 91 of 2016
Jurisdiction invoked
First appeal from the High Court in exercise of its appellate jurisdiction under the Constitution and applicable statute (no specific provision cited in the judgment)

Relief refused

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Order of mandamus compelling the respondent to demolish illegal structures and evict trespassers from the suit property

Judicial review was the wrong forum; disputes over occupation and eviction affect third parties not joined and belong before the ELC; appellant also failed to exhaust statutory remedies under the PPA and FAA Act

p. 4

Order of mandamus compelling the respondent to approve the appellant's plans for a perimeter wall

The plans had already been approved subject to conditions and the appellant did not demonstrate compliance with those conditions, so no public duty had crystallized

p. 5

Costs

Appeal dismissed with costs to the respondent.

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.

Cognizant of the clear procedure for redress provided under the Act, the learned Judge refused to admit jurisdiction in determining the application on the basis that where a clear and specific procedure for redress of a grievance is provided, then that procedure should be strictly followed.
p. 3exhaustion of statutory remedies
The High Court is expressly prohibited by dint of Article 165(5)(b) from entertaining matters falling within the jurisdiction of the courts established pursuant to Article 162(2) of the Constitution.
p. 4High Court barred from ELC matters
On the authority of Owners of the Motor Vehicle “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, which the Judge had in mind and cited, the High Court was bound to lay down its tools the moment it held that it lacked jurisdiction.
p. 4jurisdiction
In the absence of compliance, it could not allege failure or refusal by the respondent to approve its plans and it cannot say any public duty is owed to it since the duty had not crystallized.
p. 5mandamus - crystallization of public duty
Ultimately, we agree with the findings of the learned Judge that the orders sought by the appellant were untenable in the circumstances. This appeal must therefore fail as it is without merit. It is accordingly dismissed with costs to the respondent.
p. 5final orders / disposition

Issues in the judgment

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minor

The judgment quotes a passage attributed to the learned Judge that appears internally inconsistent (approval letter granting approval yet stating the respondent refused to allow construction); reproduced as quoted

minor

The quoted judgment contains a typographical error rendering the High Court's finding on lack of jurisdiction ('grant the review orders sought listen to her')

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Ndiara Enterprises Ltd v Nairobi City County Government [2018] KECA 825 (KLR)", Case Analysis (2018). Civil Appeal No. 274 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/825/eng@2018-02-16

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