Republic v County Physical, Planner Kajiado County & 2 others Ex-Parte Eunice Mutio [2018] KEELC 1810 (KLR)
The bottom line
#A Kajiado property owner failed to overturn a county stop-construction notice because she went to court before finishing the official appeal process.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant was accorded a fair hearing before the enforcement notice was issued
The claim of denial of a fair hearing was contradicted by the applicant's own lawyer's letter to the National Liaison Committee confirming attendance at a multi-stakeholders meeting held to discuss the enforcement notice.
The court took judicial notice of the applicant's lawyer's letter dated 4th February 2015 which confirmed a multi-stakeholders meeting was held and attended. Although the applicant complained that the respondent's officers failed to respond to her demands and refused to receive her demand letter, her principal contention that she was denied a hearing was inconsistent with her own lawyer's confirmation that a hearing took place. The court therefore rejected the natural justice challenge.
Whether the applicant exhausted the statutory appeal mechanism at the National Physical Planning Liaison Committee
The applicant failed to exhaust the remedies set out in section 38 of the Physical Planning Act before instituting judicial review.
The applicant's lawyers wrote to the National Liaison Committee on 4th February 2015 demanding intervention within seven days. Only four days later, on 9th February 2015, she moved for leave to apply for judicial review, before the Committee could determine her complaint, which remained unanswered. Section 38(4)-(7) of the Physical Planning Act provides a tiered appeal mechanism to the liaison committees and the High Court, and an appeal stays execution of an enforcement notice. The court applied Matanga Tea & Coffee Co Ltd v Shikara Ltd on avoiding statutory mechanisms.
Whether the enforcement notice should be quashed
The court declined to quash the enforcement notice.
The application failed because the applicant had not exhausted statutory remedies and had not demonstrated a denial of fair hearing. The notice required the applicant to stop construction and avail approved drawings within seven days; the applicant did not show she availed the approved drawings as required, having annexed only a PP2 form rather than the approved plans.
Legal principles established
#- Judicial review is concerned with the manner in which a decision is made rather than its merits, and courts will not interfere where proper processes are followed and the decision is within the confines of the law
- A party must exhaust the appeal mechanisms provided by statute, here section 38 of the Physical Planning Act, before resorting to judicial review
- Courts should not exercise supervisory jurisdiction where parties seek to avoid mechanisms and processes provided by law
Court orders
#- 1.The Notice of Motion dated 11th February 2015 is dismissed with costs
- 2.The Court declines to quash the Enforcement Notice dated 26th January 2015
- 3.The Applicant is directed to first exhaust the remedies envisaged in section 38 of the Physical Planning Act
- Jurisdiction invoked
- Judicial review jurisdiction over the enforcement notice of the County Physical Planner (Constitution and Physical Planning Act framework; Government Proceedings Act and Physical Planning Act cited in the matter title)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Physical, Planner Kajiado County & 2 others Ex-Parte Eunice Mutio [2018] KEELC 1810 (KLR)", Case Analysis (2018). ELC Misc Application No. 109 of 2017 (formerly Nairobi ELC Misc. No. 18 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1810/eng@2018-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.