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ELCAllowedMiscellaneous Civil Application No. 56 of 2017 (formerly Machakos HCCC Misc. Application No. 20 of 2014 (JR))· [2017] KEELC 963 (KLR)

Republic v County Government of Kajiado Ex-parte Mohamed Abdi Guhad [2017] KEELC 963 (KLR)

Environment and Land Court
6 November 2017
COChristine Ochieng
3,454 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kajiado County's enforcement notice was quashed because the landowner was denied his legal right to appeal it to a Liaison Committee that did not exist.

What this practically means

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Executive summary

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The ex parte applicant, Mohamed Abdi Guhad, sought judicial review orders of certiorari and prohibition to quash and restrain action on an enforcement notice issued by the County Government of Kajiado on 19th August 2014 in respect of LR 1820 B/Saina Annexe. He had been allotted the plot by the defunct Town Council of Kajiado in November 2012 for residential development, obtained planning approval on 29th November 2013, and constructed apartments valued at Kshs. 16 million. The County opposed, contending the allotment was effected during the transition period in contravention of section 35 of the Transition to Devolved Government Act 2012, that the land was public utility demonstration farm land, that the development permission was irregularly obtained, and that the applicant had not exhausted the appellate mechanism under the Physical Planning Act. The applicant responded that when he attempted to lodge an appeal with the Physical Planning Liaison Committee as directed in the enforcement notice, he was told the committee did not exist and was advised to go to court - averments the County did not controvert. Framing two issues (legality of the enforcement notice and availability of an appeal forum), the court applied the Council of Civil Service Unions and Municipal Council of Mombasa formulations, confined itself to the decision-making process rather than the merits, and found procedural impropriety: the applicant was denied a fair hearing because no Liaison Committee existed to hear his appeal. The court declined to determine the validity of the allotment, reserving that question for a civil suit, allowed the motion as prayed, and quashed the enforcement notice.

Key legal issues

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01

Whether the court on judicial review could examine the legality of the enforcement notice without venturing into ownership of the suit land

Holding

The court confined itself to the process: it declined to determine the validity of the allotment, holding that such issues belong in a civil suit, and found the applicant was denied a fair hearing because he could not lodge an appeal with the Liaison Committee.

Reasoning

Applying Lord Diplock's three heads of judicial review (illegality, irrationality, procedural impropriety) and Municipal Council of Mombasa, the court held it should not act as a court of appeal over the decider. The uncontroverted evidence was that when the applicant attempted to appeal under clause 5 of the Enforcement Notice, he was told the Liaison Committee did not exist. No legal provision excused the absence of the committee despite the devolution moratorium, so procedural impropriety was established.

p. 6
02

Whether the validity of the allotment and development permission under section 35 of the Transition to Devolved Government Act could be resolved in judicial review

Holding

The validity of the letter of allotment and the approvals were issues best determined in a civil suit, not in the judicial review application.

Reasoning

The respondent contended that the 2012 allotment contravened section 35 of the Transition to Devolved Government Act 2012, which prohibited transfer of assets during the transition period and rendered contravening transfers invalid. The judge noted the clarity of those provisions but, since the matter was judicial review, declined to delve into ownership of the suit land or the legality of the allotment letter at that juncture.

p. 6

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself.
  • A person affected by an enforcement notice under the Physical Planning Act is entitled to a fair hearing, including the ability to lodge an appeal with the Liaison Committee.

Court orders

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  1. 1.The application dated 16th October 2014 is allowed as prayed
  2. 2.The Enforcement Notice issued against the applicant on 19th August 2014 in respect to LR No. 1820 B/Saina Annex is quashed

Authorities

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Legislation

  • Civil Procedure ActOrder 53 Rule 1
  • Physical Planning ActCap 286 (generally, including appeal to Liaison Committee)
  • Transition to Devolved Government Act 2012Section 35(1)-(4)
  • Evidence ActSection 2

Cases cited (4)

  • Council for Civil Service Unions vs. Minister for Civil Service
    [1985] A.C. 374
  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Judicial Commission of Inquiry into Goldenbag Affairs & 2 others Ex parte George Saitoti
  • Ambrose Odwaya Onyango
Jurisdiction invoked
Order 53 Rule 1 of the Civil Procedure Act Cap 21 (judicial review)

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, "Republic v County Government of Kajiado Ex-parte Mohamed Abdi Guhad [2017] KEELC 963 (KLR)", Case Analysis (2017). Miscellaneous Civil Application No. 56 of 2017 (formerly Machakos HCCC Misc. Application No. 20 of 2014 (JR)). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/963/eng@2017-11-06

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