Kenya National Highways Authority v Tangerine Investments Limited (Civil Appeal 84 of 2018) [2023] KECA 79 (KLR)
The bottom line
#The Court of Appeal ruled that KeNHA permission is mandatory for billboards on national road reserves, and a county licence is not enough.
What this practically means
#Executive summary
#Key legal issues
#Mandatory nature of section 49(1) of the Kenya Roads Act
Section 49(1) is obligatory notwithstanding the use of the word 'may'; the respondent was bound to seek and obtain the appellant's written permission before erecting billboards on a road reserve, and the Nairobi City County's advertising licence was no substitute.
The court applied the purposive rule of statutory interpretation, holding that whether a provision using 'may' or 'shall' is mandatory depends on the true legislative intention, ascertained from the whole statute, its design and consequences of construction. The word 'except' showed that Parliament's enumerated exceptions were not to be expanded. Drawing on Salmond, Crawford and the Supreme Court of India in Mohan Singh, the court concluded that where a statute confers power to enable compliance, its exercise becomes a duty, rendering section 49(1) obligatory.
Discretionary nature of judicial review remedies and the clean hands doctrine
Judicial review remedies are discretionary and not automatic; a claimant who has violated the law, as the respondent did in erecting billboards without permission (an offence under section 49(6) of the Act and section 91 of the Traffic Act), is not entitled to equitable relief.
The court drew on South African, English and Kenyan authorities (Cape Bar Council; Wade and Forsyth; De Smith; Credit Suisse v Allerdale; ex parte Pareno) to hold that discretion to withhold a remedy is an essential moderating tool where legality and certainty collide. Because the respondent breached two penal enactments and approached the court with unclean hands, granting certiorari, prohibition and mandamus was an improper exercise of judicial discretion; declining relief would have been proper.
Legal principles established
#- The word 'may' in section 49(1) of the Kenya Roads Act is obligatory: no person may erect any structure on a road reserve of a national road without the Authority's written permission, and a county advertising licence does not substitute for that permission.
- Judicial review remedies are discretionary; even where a public body has erred in law, a court may refuse relief to an applicant who has violated the law or approached the court with unclean hands.
- In judicial review the court's role is twofold: to assess whether the public authority acted as alleged, and to determine what, if any, remedy should result, with public interest, pragmatism and practicality informing the exercise of discretion.
Court orders
#- 1.Appeal allowed in its entirety
- 2.Judgment of the High Court delivered on October 24, 2017 set aside in its entirety and substituted with an order dismissing the said suit
- 3.Respondent to pay costs of the appeal and of the lower court to the appellant
- On appeal from
- High Court of Kenya at Nairobi
- Judicial Review Application No 348 of 2016
- Jurisdiction invoked
- First appeal to the Court of Appeal under rule 31(1) of the Court of Appeal Rules, 2022
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, "Kenya National Highways Authority v Tangerine Investments Limited (Civil Appeal 84 of 2018) [2023] KECA 79 (KLR)", Case Analysis (2023). Court of Appeal, Nairobi Civil Appeal (not separately numbered in judgment; arising from High Court Judicial Review Application No 348 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/79/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.