Grove Limited v County Government of Nairobi [2019] KEELC 311 (KLR)
The bottom line
#Nairobi County's cancellation of The Grove Limited's building approvals was declared unconstitutional because the County lacked legal power and acted without a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had power to cancel the approvals under section 10 of the Building Code and section 41(3) of the Physical Planning Act
Neither provision confers power to cancel approvals already granted; section 41(3) only requires publication and service of notice of an application. The Respondent acted in misapprehension of the law, a ground for quashing.
The court examined the text of both sections. Section 41(3) permits the local authority to require the applicant to serve neighbours at the approval stage, but the Respondent never imposed such a condition during the approval process. Section 10 of the Building By-laws concerns disapproval of plans, not cancellation of granted approvals. Acting on a misapprehension of the law renders a decision liable to be quashed.
Whether the Respondent could rely on alleged lack of public participation already determined by the NET and on appeal
The Respondent acted ultra vires and maliciously in cancelling approvals on a matter settled by a competent tribunal, with no further appeal available.
The NET found there was adequate public participation, and this court on appeal, in a judgment of 2nd October 2017, confirmed that finding and dismissed the residents' appeal. The Respondent, an administrative organ, could not re-litigate a matter conclusively determined by a competent tribunal where no provision existed for appeal to a higher court.
Whether lapse of the approvals justified cancellation
Lapse could not justify cancellation because the Applicant was prevented from timely construction by the pending NET proceedings and appeal; the lapse point was raised only in passing six months after the appeal was decided.
Construction was required to begin within 12 months and be completed within two years, but a stay arising from the NET proceedings and the subsequent appeal to this court, determined on 2nd October 2017, prevented compliance. The Respondent could not rely on a non-compliance caused by the law itself standing in the Applicant's way; the lapse was only mentioned in passing in the cancellation letter.
Whether the Applicant was obliged to exhaust remedies before the liaison committee under the Physical Planning Act
No, because no liaison committee was in place; requiring recourse to a non-existent committee would deny the Applicant an effective remedy.
The Respondent argued non-exhaustion of remedies. The court accepted the Applicant's position that no liaison committee existed, and relying on the Odunga J decision in the Suad Salim Abubakar case, held that a court should not sanitise a patently illegal action on the basis of an appeal right that is practically non-existent.
Legal principles established
#- A public body cannot cancel approvals it has granted on the basis of a statutory provision that confers no power of cancellation; acting under a misapprehension of the law is a ground for quashing the decision.
- Administrative action taken without affording the affected person an opportunity to be heard is procedurally unfair and unconstitutional, null and void.
- An administrative organ may not re-open an issue of public participation already determined by a competent tribunal, and to require recourse to a non-existent alternative forum is to deny an effective remedy.
Court orders
#- 1.A declaration that the Respondent's letter dated 30th April 2018 is unconstitutional, illegal, null and void
- 2.An injunction restraining the Respondent from cancelling the approvals granted for the Applicant's development vide plan registration No. CPF AG 174 on 7th February 2014
- 3.Costs of the proceedings to be paid by the Respondent
- Jurisdiction invoked
- Sections 7, 9, 11 and 12 of the Fair Administrative Action Act, 2015, enacted pursuant to Article 47(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grove Limited v County Government of Nairobi [2019] KEELC 311 (KLR)", Case Analysis (2019). ELC JR No. 79 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/311/eng@2019-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.