Sigma Feeds Limited v Director Nairobi City Planning Department & 2 others [2019] KECA 887 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Sigma Feeds' appeal, punishing the company for filing two simultaneous challenges to a demolition notice and stretching the truth about service.
What this practically means
#Executive summary
#Key legal issues
#Appellate interference with judicial review discretion
The Court will not interfere with a High Court judge's exercise of discretion in a judicial review matter absent demonstration that the discretion was misdirected or plainly wrong; none of the errors was established here.
Relying on the settled principles in Mbogo v Shah and Njoroge v Kuria, the Court held the discretion belongs to the first instance judge. The burden lies on the party seeking to set aside discretionary orders. The learned Judge had a solid basis for rejecting the application: the appellant's lack of candour on service and its abuse of process through parallel proceedings. No error entitling interference was identified.
Abuse of process by pursuing parallel proceedings
Where a statute provides two avenues of challenge, a litigant must elect one; simultaneously appealing to the Liaison Committee and filing judicial review in the High Court is an abuse of process and forum-shopping.
The Physical Planning Act allowed appeal to the Liaison Committee and thereafter to the High Court, or alternatively judicial review. Sigma filed an appeal to the Committee on 12 January 2009 and also instituted judicial review proceedings. The Court held the statute required an election; simultaneous invocation embarrasses respondents and forums, spreads the risk of failure, and amounts to forum-shopping. This rests on abuse of process rather than exhaustion of alternative remedies.
Service of the enforcement notice and candour
The claim that the notice was not served could not lie because a copy was delivered to Sigma's own advocates; the claim of non-service was a truth-economy disentitling the applicant to relief.
Sigma's own statement of facts recorded that a copy of the enforcement notice was delivered through its advocates on record on 9 January 2009. The Judge therefore found Sigma was not caught by surprise and was aware of the notice from the date of issue. The Court agreed this could not be faulted and elevated the principle that lack of candour justifies rejection of a judicial review application.
Academic or live appeal
The appeal was academic because the enforcement had been effected a decade earlier, and the Court does not act in vain.
The Court noted from the appellant's own memorandum of appeal that the demolition/enforcement had occurred a decade or so prior. Even were the appeal live, it was devoid of merit. The Court invoked the principle that it never acts in vain, dismissing the appeal notwithstanding the mootness concern.
Legal principles established
#- An appellate court will not interfere with a first instance judge's exercise of discretion unless it is shown the judge misdirected himself, acted on wrong principles or matters, failed to consider relevant matters, or was plainly wrong resulting in injustice.
- A litigant who invokes one statutory avenue of challenge may not simultaneously pursue a parallel proceeding in another forum; doing so is an abuse of process and forum-shopping.
- A court may reject an application for judicial review where the applicant fails the duty of candour and does not come to equity with clean hands.
- A court never acts in vain and will not entertain appeals rendered academic by intervening events.
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- Jr. Misc. Civil Appln. No. 28 of 2009
- Jurisdiction invoked
- First appellate jurisdiction over the High Court in a judicial review application under the Civil Procedure framework (no specific constitutional or statutory provision invoked in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sigma Feeds Limited v Director Nairobi City Planning Department & 2 others [2019] KECA 887 (KLR)", Case Analysis (2019). Civil Appeal No. 231 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/887/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.