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ELCPartially AllowedJudicial Review Application (Notice of Motion dated 31st July, 2014)· [2017] KEELC 3715 (KLR)

Republic v County Secretary, County Government of Machakos Ex-parte Wilson Masila Muema [2017] KEELC 3715 (KLR)

High Court of Kenya
27 January 2017
OAO. A. Angote
1,141 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that county governments must give applicants a clear answer on development plans—silence is not an option.

What this practically means

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Executive summary

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The applicant, Wilson Masila Muema, moved the High Court at Machakos by Notice of Motion dated 31st July 2014 under Order 53 Rule 3(1) of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform Act, seeking an order of prohibition against the respondent (County Government of Machakos) rejecting payment of due rates for plot Machakos Municipality Block 1/756, and an order of mandamus compelling consideration of his development plan application. He deponed that he was allocated the suit land in 2009 and holds an unimpugned lease and certificate of title; the then Municipal Council of Machakos declined his application on 15th February 2012, but a resubmission on 8th March 2012, reminders and demand notices went unanswered. The respondent filed no replying affidavit or grounds of objection and only exchanged written submissions, so the deponed facts were taken as conceded. The respondent argued, relying on authority, that the applicant first needed certiorari to quash the 2012 refusal before prohibition or mandamus could issue. The court held that the respondent was obligated under Article 47 of the Constitution to accord the applicant an answer by approving or declining the application, and that the applicant, whose title stood unimpugned, was entitled to the user and benefit of his property under Article 40. The court declined to frame the relief as prohibition and instead compelled the respondent to communicate a decision on the development plan within 45 days, ordered that any dues be received if approval is granted, and awarded the applicant costs.

Key legal issues

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01

Whether the respondent was under a duty to decide the resubmitted development plan application

Holding

Yes; the respondent was obligated under Article 47 to respond by approving or declining the application

Reasoning

The applicant, holder of an unimpugned lease, submitted a development plan which the council initially declined to approve; a resubmission on 8th March 2012 was never answered despite reminders and a demand notice. The court held the respondent could not simply ignore the application and had to make a decision to approve or disapprove the plans.

p. 3
02

Whether mandamus could issue without first quashing the 15th February 2012 decision by certiorari

Holding

The court rejected the objection and granted relief compelling a decision, treating the failure to respond to the resubmission as the operative inaction

Reasoning

The respondent argued that prohibition and mandamus had to be preceded by certiorari quashing the 15th February 2012 rejection. The court instead focused on the undisputed facts that the resubmitted application and reminders went unanswered, and found the respondent obligated to accord an answer under Article 47. The respondent conceded the deponed facts by not filing a replying affidavit.

p. 3

Legal principles established

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  • A public authority exercising a statutory duty to determine development applications is bound by Article 47 of the Constitution to respond to an applicant by either approving or declining, with reasons
  • Facts deponed to in an affidavit and not rebutted by a replying affidavit are taken as conceded
  • An unimpugned certificate of lease entitles the holder to the user and benefit of the property under Article 40

Court orders

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  1. 1.The Respondent be and is hereby compelled to communicate the decision on approval or otherwise on the development plan of Machakos Municipality Block 1/756 within 45 days
  2. 2.The dues payable to be received in event the approval is granted
  3. 3.The Respondent to pay the costs of the Application

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 53 Rule 3(1)
  • Law Reform Act (Cap 26, Laws of Kenya)Sections 8 and 9
  • Constitution of Kenya, 2010Articles 40 and 47
  • Land Registration Act No. 3 of 2012Section 30
  • Physical Planning ActSections 29(c) and (d), 33(2)

Cases cited (5)

  • Kenya National Examination Council vs Njoroge & 9 others
    1997 eKLR
  • Municipal Council of Mombasa vs Republic & another
    (2002) eKLR
  • Republic vs Municipal of Mombasa exparte Kamau J.G. Njenga
    (2013) eKLR
  • Republic vs Permanent Secretary to Cabinet and Head of Civil Service exparte Nganga
    (2006) eKLR
  • Machakos HC.MISC. 72 2010 Republic vs Makueni Land Dispute Tribunal
Jurisdiction invoked
Order 53 Rule 3(1) of the Civil Procedure Rules 2010 and Sections 8 and 9 of the Law Reform Act (Cap 26)

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 Secretary, County Government of Machakos Ex-parte Wilson Masila Muema [2017] KEELC 3715 (KLR)", Case Analysis (2017). Judicial Review Application (Notice of Motion dated 31st July, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3715/eng@2017-01-27

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