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Court of AppealDismissedCivil Appeal No. 77 of 2015· [2020] KECA 842 (KLR)

Kwench Limited v Nairobi City County Interim Secretary & 2 others [2020] KECA 842 (KLR)

Court of Appeal
6 March 2020
Martha Karambu KoomeM. K. KoomeFSF. SichaleSKS. ole Kantai
2,778 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that if a law gives you another way to challenge a government notice, you must use that route before turning to the High Court.

What this practically means

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Executive summary

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The appellant, Kwench Limited, was the original proprietor of premises LR Nos 14970/233 and 235, subdivided from a larger title and transferred to multiple purchasers. In June 2013 the Nairobi City County issued a notice under the Public Health Act requiring the appellant to drain water flooding on the premises and provide drainage infrastructure. The appellant challenged the notice by judicial review in the High Court, seeking prohibition and certiorari on grounds that the county, not a former owner, bore the duty for storm water management under the Fourth Schedule to the Constitution, and that the county was functus officio after approving the subdivision. Odunga, J. dismissed the motion, holding that the question of nuisance authorship was premature before the High Court because sections 118-120 of the Public Health Act provide a procedure through the Magistrate's Court. The appellant appealed on grounds including that the flooding was an act of God, that rain water is not a nuisance, and that it could not enter private property to fix drainage. The Court of Appeal, unaided by submissions from the unrepresented respondents, distilled a single issue: whether the Judge erred in declining to grant the reliefs. Applying Mbogo v Shah and the discretion-interference principles, and following Whitehorse Investments Ltd v Nairobi City County and Suchan Investments, the Court held that the Public Health Act vests jurisdiction over nuisance inquiries in the Magistrate's Court; judicial review is a last resort where an alternative remedy exists; and no exceptional circumstances existed. The appeal was dismissed with costs.

Key legal issues

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Whether the High Court erred in declining to grant judicial review orders where the Public Health Act provided a statutory procedure before the Magistrate's Court

Holding

The Magistrate's Court, not the High Court in judicial review, is the proper forum to inquire into the existence of a nuisance and its author under the Public Health Act, and no exceptional circumstances justified judicial review

Reasoning

The plain reading of the Public Health Act vests the jurisdiction to inquire into and inspect a nuisance in the Magistrate's Court under sections 119 and 120. Judicial review, though constitutionally grounded in Article 47 and the Fair Administrative Actions Act, is a last resort where an alternative remedy exists. The dispute was an ordinary case of flooding requiring factual inquiry into the cause of the nuisance and who must remedy it, which is unsuitable for judicial review. Following Whitehorse Investments Ltd v Nairobi City County, the Court found the Judge exercised his discretion correctly.

p. 3
02

The principles governing appellate interference with judicial discretion

Holding

This Court will not interfere with a judge's exercise of discretion unless the judge misdirected himself and arrived at a wrong decision, or was manifestly clearly wrong and injustice resulted

Reasoning

Relying on Coffee Board of Kenya v Thika Coffee Mills and Mbogo v Shah, the Court restated the classic rule that an appellate court does not lightly disturb discretionary decisions. Interference is warranted only where the judge misdirected himself on a matter and as a result reached a wrong decision, or where it is manifest from the case as a whole that the judge was clearly wrong in the exercise of discretion and injustice resulted. The Court found no such misdirection here.

p. 2

Legal principles established

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  • Where a statute provides an alternative remedy, judicial review is a remedy of last resort and the High Court will not entertain it before the alternative mechanism is exhausted absent exceptional circumstances.
  • An appellate court will not interfere with the exercise of a judge's discretion unless the judge misdirected himself and arrived at a wrong decision, or was clearly wrong and occasioned injustice.
  • Contested factual inquiries, such as the source or authorship of a nuisance, are not appropriate for judicial review orders.

Court orders

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  1. 1.The appeal is dismissed with costs

Authorities

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Legislation

  • Public Health ActSection 118(2)
  • Public Health ActSection 119
  • Public Health ActSection 120
  • Constitution of KenyaArticle 47
  • Constitution of KenyaPart 2 of the Fourth Schedule
  • Fair Administrative Actions ActSection 7
  • Fair Administrative Actions ActSection 9(2)
  • Fair Administrative Actions ActSection 9(4)
  • Physical Planning ActSection 9(2)
  • Court of Appeal RulesRule 29(1)

Cases cited (6)

  • Selle & Another v. Associated Motor Boat Co. Limited
    [1973] EA 123
  • Coffee Board of Kenya vs. Thika Coffee Mills Limited & 2 Others
    [2014] eKLR
  • Mbogo vs. Shah
    [1968] E.A. 93
  • Suchan Investments Ltd vs. Ministry of National Heritage & Culture & 3 others
    [2016] eKLR
  • Republic vs. National Environmental Management Authority
    [2011] eKLR
  • Whitehorse Investments Ltd vs. Nairobi City County
    [2019] eKLR
On appeal from
High Court of Kenya
JR Misc. Appl. No. 231 of 2013
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules (Rule 29(1)), appeal from the High Court on a judicial review application; no specific constitutional provision invoked

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Kwench Limited v Nairobi City County Interim Secretary & 2 others [2020] KECA 842 (KLR)", Case Analysis (2020). Civil Appeal No. 77 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/842/eng@2020-03-06

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