Makupa Transit Shade Limited v County Director of Planning and Architecture, County Government Of Mombasa [2017] KEELC 1983 (KLR)
The bottom line
#The court ruled that county letters suspending development must meet strict legal requirements, and poorly drafted suspension orders can be challenged directly in court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC where the Physical Planning Act provides an appellate mechanism
The ELC has original jurisdiction and the statutory appellate procedure does not prevent a party from coming to court in the first instance.
The court noted that section 13(1) of the Environment and Land Court Act confers both original and appellate jurisdiction over environment and land disputes. Although sections 38(4) and (5) of the Physical Planning Act provide appeal routes through the liaison and National Liaison committees, this does not oust the court's jurisdiction. Article 50 guarantees a right to a fair hearing before a court of law, so resort to court in the first instance was not an error.
Whether the letter of 27th October 2016 was an enforcement notice under section 38(1)/(2) of the Physical Planning Act
It was not; it did not specify the measures required or a period of compliance, so the appellate process was not triggered and exhaustion under section 9(2) of the FAA Act was not required.
Section 38(2) requires an enforcement notice to specify the contravened conditions, the measures required and the period for compliance. The suspension letter required Makupa to stop development 'forthwith' without specifying measures or a compliance period, and was not expressed to be issued under section 38(1). Following the Gurcham Singh Sihra decision, without a valid notice the section 38(4) appellate process was not triggered and the alternative remedy was not equally convenient, beneficial or effective.
Whether the County Director of Planning and Architecture was wrongly impleaded
He was properly sued, not in his personal capacity but by virtue of the public office he holds.
Prerogative orders issue in the name of the Republic and are directed at the person who is to comply with them. The approval and suspension emanated from the Director's office, so he is the proper respondent to the judicial review proceedings, consistent with Environmental and Combustion Consultants Ltd v Kenya Pipeline Co Ltd.
Whether the exparte leave and stay of 10th February 2017 should be set aside
No; the substantive motion was filed within 21 days and Makupa has an arguable case; setting aside leave is a limited jurisdiction exercised sparingly in obvious cases.
The court verified from the record that the substantive motion was filed on 27th February 2017, within the 21 days ordered. Relying on Doris Gacheri and the Aga Khan Education Service Kenya authority, the court held that leave granted exparte is set aside only sparingly and in very clear cut cases; the applicant placed no material showing Makupa's case was obvious and had no prospects of success.
Legal principles established
#- The existence of an appellate procedure in a statute does not oust the ELC's original jurisdiction over environment and land disputes; a party may invoke the court's jurisdiction in the first instance.
- A letter that fails to comply with the requirements of an enforcement notice under section 38(2) of the Physical Planning Act does not trigger the appellate process under section 38(4) and (5).
- Exparte leave can only be set aside in very clear cut and obvious cases where there are no prospects of success.
- In judicial review the proper respondent is the public officer who is to comply with the orders, sued by virtue of the public office held.
Court orders
#- 1.The Notice of Motion dated 20th February 2017 is dismissed
- 2.The court declines to set aside the leave granted on 10th February 2017
- 3.The stay of the implementation of the suspension of the approval is kept in place pending the hearing of the substantive motion
- 4.Costs shall be in the cause
- 5.The certified copy of the ruling to be supplied to all parties at their expense
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, No. 19 of 2011; motion brought under section 3A of the Civil Procedure Act and Order 53 Rule 1(4) of the Civil Procedure Rules
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, "Makupa Transit Shade Limited v County Director of Planning and Architecture, County Government Of Mombasa [2017] KEELC 1983 (KLR)", Case Analysis (2017). Notice of Motion dated 20th February 2017 (in Judicial Review proceedings arising from ex parte Chamber Summons dated 9th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1983/eng@2017-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.