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ELCDismissedNot stated in the judgment (Judicial Review application; Notice of Motion dated 13th December, 2018)· [2019] KEELC 2781 (KLR)

Republic v County Government of Machakos Exparte Hotel Connections Limited [2019] KEELC 2781 (KLR)

High Court of Kenya
21 June 2019
OAO.A. Angote
1,838 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The High Court ruled a county can't block a judicial review case just because another appeal route exists when that route was impractical.

What this practically means

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Executive summary

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This ruling by the High Court at Machakos (O.A. Angote, J) determined a preliminary objection dated 5th February, 2019 raised by the Respondent (the county government, acting through the Mavoko Sub-County Physical Planner) against a judicial review application by an Ex-parte Applicant, a hotel company. The company sought certiorari to quash an Enforcement Notice dated 16th November, 2018 and served on its workers on 21st November, 2018, and prohibitory orders restraining its implementation or any interference with its hotel premises on LR Athi River/Athi River Block 1/88. The Respondent argued the court lacked jurisdiction because the Applicant had not exhausted the appeal mechanism to the liaison committee under Section 38 of the Physical Planning Act, that the suit offended Section 9(2) of the Fair Administrative Actions Act, and that the proceedings were premature and an abuse of process. The court found that the notice required same-day compliance, leaving no realistic opportunity to appeal to a liaison committee whose address was uncertain and sittings sporadic, and that Section 9(4) of the Fair Administrative Actions Act permits exemption from exhaustion in the interest of justice. Relying also on the principle that judicial review lies notwithstanding alternative remedies where unreasonableness, unfairness or breach of natural justice is alleged, the court held it had jurisdiction and dismissed the preliminary objection with costs. The substantive notice of motion remained pending; leave earlier granted continued to operate as a stay of the enforcement notice.

Key legal issues

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01

Whether the requirement to exhaust the Section 38 Physical Planning Act appeal mechanism barred the judicial review application

Holding

The Preliminary Objection was dismissed; the court had jurisdiction because the circumstances made the statutory appeal mechanism impracticable and the exemption under Section 9(4) of the Fair Administrative Actions Act applied.

Reasoning

Under Section 38(3) of the Physical Planning Act an enforcement notice takes effect on expiry of the period specified. Here the notice, served on 21st November 2018, required compliance the same day. The liaison committee's physical address was uncertain and its sittings sporadic, so the Applicant could not practically lodge an appeal. Section 9(4) of the Fair Administrative Actions Act permits exemption from exhaustion in exceptional circumstances in the interest of justice, which these facts satisfied. Judicial review is also the more convenient and appropriate procedure where unreasonableness and breach of natural justice are alleged.

p. 2

Legal principles established

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  • Under Section 9(4) of the Fair Administrative Actions Act, a court may in exceptional circumstances exempt an applicant from the obligation to exhaust alternative remedies where the exemption is in the interest of justice.
  • Availability of other remedies is no bar to judicial review reliefs where unreasonableness, unfairness, irrationality or breach of natural justice is alleged.

Court orders

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  1. 1.The Respondent's Preliminary Objection dated 5th February, 2019 is dismissed
  2. 2.Costs of the Preliminary Objection awarded to the Ex-parte Applicant

Authorities

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Legislation

  • Physical Planning ActSections 13, 15, 38 (including 38(3), (4) and (5))
  • Fair Administrative Actions Act, No. 4 of 2015Sections 9(2) and 9(4)
  • Civil Procedure RulesOrder 53

Cases cited (6)

  • Speaker of the National Assembly vs. James Njenga Karume
    (1992) eKLR
  • Thuku Kirori & 4 others vs. County Government of Murang'a
    (2014) eKLR
  • Diana Kethi Kilonzo & Anor. vs. Independent Electoral & Boundaries Commission & others
    (2013) eKLR
  • Republic vs. The Commissioner of Lands, Ex-parte Lake Flowers Limited
    Nairobi HC Misc. Application Number 1235 of 1998
  • Republic vs. Secretary of the Firearms Licensing Board & 2 others, Ex-parte Senator Johnson Muthama
    (2018) eKLR
  • John Fitzgerald Kennedy Omanga vs. The Postmaster General Postal Corporation of Kenya & 2 others
    Nairobi HCMA No. 997 of 2003
Jurisdiction invoked
Judicial review jurisdiction under Order 53 of the Civil Procedure Rules, the Fair Administrative Actions Act and the Constitution

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 Machakos Exparte Hotel Connections Limited [2019] KEELC 2781 (KLR)", Case Analysis (2019). Not stated in the judgment (Judicial Review application; Notice of Motion dated 13th December, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2781/eng@2019-06-21

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