Tratoria Limited v Maina & 3 others
The bottom line
#Kenya's Court of Appeal confirmed that government approvals given without reasons or transparency can be quashed, and civil disputes cannot be turned into criminal cases.
What this practically means
#Executive summary
#Key legal issues
#Right of access to information under Article 35
The County Government's failure to respond to the 1st respondent's information requests and to disclose the basis of the approvals violated Article 35; public-sector information must be available on a right-to-know basis.
The court endorsed Nairobi Law Monthly, holding that members of the public are entitled to public-sector information unless there are good reasons for withholding it. Because the approvals affected the safety of tenants and pedestrians and could attract criminal sanctions, the application procedure, rules, conditions and decision had to be generally available. The County's vague, opaque approach concealed its decisional processes and gave no guidance, and no reasons for withholding were advanced.
Validity of the County Government's approvals and the order of certiorari
The approvals were unlawful for patent error on the face of the record; the trial court was entitled to quash them and to compel production of the approval documents by mandamus.
Section 125 of the Occupational Safety and Health Act requires a written application supported by prescribed particulars, and the Director's satisfaction with prescribed standards. The County could not identify the laws, by-laws or conditions satisfied. Its 2014 clearance certificate contradicted its own 2015 fire inspection report finding the tanks blocked fire exits and the LPG tank a safety hazard. In the absence of any explanation, the decision was manifestly erroneous and amenable to certiorari.
Whether prohibition against the DPP and Inspector General was justified
Yes. Continuing the investigations and prosecutions would be oppressive, unfair and an abuse of process given the civil character of the dispute and the history of the matter.
While the police may investigate complaints and criminal proceedings may arise from facts in pending civil suits, the circumstances here - notices withdrawn once the appellant invoked the approvals, damages already awarded for the alleged damage, and parallel prosecutions of the landlord's agents - showed harassment. Relying on Gian Singh and Mitesh Kumar J. Shah, the court held that imparting criminal colour to a civil dispute is an abuse of process that courts must quash in the interest of justice.
Whether the arbitral award and the ruling of 11th December 2013 shielded the appellant
No. The award restrained only interference with quiet possession and was not a perpetual cloak against lawful regulatory action; the earlier ruling was not privy to the expert safety reports.
The court found no failure to consider the prior orders. The award's terms did not immunise the appellant from lawful interference, and the December 2013 ruling predated and lacked the expert reports (NEMA, Britam, Pestavic) and the relevant passage-obstruction standards later placed before the High Court. The trial judge therefore did not err in proceeding to determine the petitions notwithstanding those orders.
Legal principles established
#- A public body's approval procedures and decisions affecting safety and rights must be transparent and reasons must be given; information held by the State is accessible on a right-to-know basis unless withholding is justified.
- Certiorari will lie to quash a decision of a public authority made in manifest error apparent on the face of the record, including clear disregard of provisions of law.
- The High Court may quash criminal proceedings that constitute an abuse of process or are oppressive, particularly where a dispute is essentially civil in character.
- A statutory discretion to approve structural alterations is not unfettered; a written application supported by prescribed particulars is a prerequisite and standards must be met.
Court orders
#- 1.Appeal dismissed with costs to the 1st respondent
- 2.High Court judgment of 21st July 2017 allowing the consolidated petitions upheld
- On appeal from
- High Court of Kenya, Constitutional & Human Rights Division at Nairobi
- Petitions No. 129 of 2014 and 132 of 2014 (consolidated)
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's judgment in consolidated constitutional petitions (Article 164 Constitution; appeal as of right on facts and law)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tratoria Limited v Maina & 3 others", Case Analysis (2022). Civil Appeal 151 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/693/eng@2022-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.