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ELCDismissedNot stated in the judgment (Chamber Summons dated 31st October, 2017)· [2017] KEELC 315 (KLR)

Mada Hotels Limited v County Government of Narok [2017] KEELC 315 (KLR)

High Court of Kenya
22 November 2017
MKMohammed Noor Kullow
756 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to pause the effects of Narok County's Mara reserve decisions because the disputed bridge demolition had already happened and no exceptional grounds justified intervention.

What this practically means

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Executive summary

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The ex parte Applicant, by Chamber Summons dated 31st October 2017, sought leave to commence judicial review proceedings under Order 53 of the Civil Procedure Rules and Section 8 of the Fair Administrative Actions Act, 2015, seeking certiorari to quash the Narok County Government's decision to deny it access and rights of ingress into the Maasai Mara Game Reserve, together with orders of prohibition and mandamus. Leave to commence the proceedings was granted on 9th November 2017, but the court declined to have that leave operate as stay, directing that the question be heard inter partes. The Applicant averred that in October 2017 the Respondent destroyed a bridge, in existence for about 30 years and constructed with the Respondent's approval, which gave access to its hotel within the reserve, causing heavy losses. The Respondent, through a Replying Affidavit of Benjamin Ole Tina, its Deputy Director of Security, maintained that the reserve has seven designated gazetted entry points equipped with revenue collection and CCTV facilities, that the Applicant resisted their use, and that 12 other unauthorized bridges were closed for security reasons. The court found the respondent's exclusive management power uncontested, held that the applicant had not demonstrated it was completely locked out, that the respondent had not acted excessively or unreasonably since the decision affected all visitors and hotels, and that the act complained of was already complete. The application for leave to operate as stay was not allowed, with costs in the cause.

Key legal issues

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01

Whether the applicant demonstrated grounds for leave to operate as stay

Holding

The application for leave to operate as stay failed because the applicant did not show that the respondent acted in excess of powers or unreasonably, nor that the applicant was completely locked out of the reserve

Reasoning

The court observed that the respondent has exclusive power to manage the Maasai Mara Game Reserve and had closed 12 other bridges used for unauthorized entry. The affidavits did not demonstrate that the applicant was completely locked out of the park, nor that the decision was excessive or unreasonable since it affected all visitors and hotels uniformly. The applicant appeared to be resisting lawful regulation of a fragile ecosystem.

p. 2
02

Whether the court could intervene in respect of a completed act

Holding

The court declined to intervene because the demolition of the bridge had already occurred; judicial review intervention is available only for impending or ongoing implementation

Reasoning

The court held that an order of stay or prohibition is prospective in nature. Since the bridge had already been destroyed, the applicant was inviting the court to undo a completed act, for which no exceptional circumstances were exhibited. Intervention is limited to acts about to be implemented or in the course of implementation.

p. 2

Legal principles established

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  • The court can only intervene by way of stay/prohibition where the act complained about is about to be implemented or is in the course of implementation, not where it is already complete
  • Leave to operate as stay in judicial review must be supported by demonstration of excess of power, unreasonableness or exceptional circumstances

Court orders

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  1. 1.The application for leave to operate as stay is not allowed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 53
  • Fair Administrative Actions ActSection 8
  • Constitution of KenyaArticles 10, 24, 25, 26, 27 and 35
Jurisdiction invoked
Order 53 of the Civil Procedure Rules and Section 8 of the Fair Administrative Actions Act, 2015

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mada Hotels Limited v County Government of Narok [2017] KEELC 315 (KLR)", Case Analysis (2017). Not stated in the judgment (Chamber Summons dated 31st October, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/315/eng@2017-11-22

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