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ELCPartially AllowedJudicial Review Misc. Application No. 51 of 2018· [2019] KEELC 2826 (KLR)

Republic v Nairobi City County & another Ex parte Kenafric Properties Ltd & another [2019] KEELC 2826 (KLR)

Environment and Land Court
3 June 2019
KBK. Bor
2,987 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Nairobi County's enforcement notice stood, but enforcement is frozen until the statutory appeal committee that should hear objections actually exists.

What this practically means

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Executive summary

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The Ex parte Applicants sought certiorari to quash an enforcement notice dated 29/5/2018 issued by Nairobi City County directing the 2nd Applicant to demolish a boundary wall on L.R No. 209/13646 and secure an occupation certificate, and prohibition against further enforcement steps. They argued the notice was issued without a hearing, without service on the registered owner (1st Applicant), and was ultra vires. The Respondents contended the development plans were erroneously approved owing to material non-disclosure of an 8-metre drainage wayleave, and that the suit was premature because Section 13 of the Physical Planning Act provides an appeal to the liaison committee. The court framed four issues and held that the enforcement notice complied with Section 38, described the contravention and remedial steps, and was validly served on the occupier; service on the registered owner was unnecessary. It held the local authority need not communicate before making the decision, and that a party aggrieved should appeal to the liaison committee per the Karume principle that clear statutory procedures must be strictly followed. However, the Respondents failed to show the Nairobi Physical Planning Liaison Committee exists or functions after the abolition of the offices that would constitute it. Certiorari was therefore refused, but the court issued an order prohibiting further enforcement steps until the committee is set up and publicised, and urged the 1st Respondent to constitute it.

Key legal issues

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01

Validity of the enforcement notice

Holding

The notice complied with Section 38 and was validly served on the occupier

Reasoning

The notice described the contravention (boundary wall encroaching on a road reserve) and the required remedial steps, and was served on the 2nd Ex parte Applicant as occupier. Section 38 permits service on the owner, occupier or developer, so non-service on the registered owner did not vitiate the notice.

p. 3
02

Alternative remedy under Section 13 of the Physical Planning Act

Holding

Applicants should ordinarily have appealed to the liaison committee, but none existed in Nairobi, making the appeal unavailable

Reasoning

Following authority cited, a clear statutory procedure must be strictly followed. However, the Respondents failed to demonstrate that the Nairobi Physical Planning Liaison Committee exists or functions since the offices of Provincial Commissioner, Commissioner of Lands and Town Clerk were abolished, so an appeal was not possible.

p. 4
03

Whether certiorari should issue

Holding

Certiorari refused because the notice was valid

Reasoning

Having found the notice valid and properly served, there was nothing to quash. The Applicants' contention of procedural unfairness did not fit the statutory scheme under Section 38, which does not require prior communication before an enforcement notice is made.

p. 4
04

Prohibition pending constitution of liaison committee

Holding

Prohibition granted as a proportionate remedy given the absence of the statutory appeal mechanism

Reasoning

Because no liaison committee exists to hear appeals, enforcement of the notice would leave the Applicants without the statutory redress. The court directed the 1st Respondent to take steps to constitute the committee, and prohibited further enforcement steps until it is operational and publicised.

p. 4

Legal principles established

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  • An enforcement notice under Section 38 of the Physical Planning Act may be served on the owner, occupier or developer of the land, and service on the occupier suffices
  • A local authority need not communicate with an affected party before issuing an enforcement notice
  • Where there is a clear statutory procedure for redress of a grievance, that procedure should be strictly followed before resort to judicial review

Court orders

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  1. 1.Declined to issue the order of certiorari quashing the enforcement notice dated 29/5/2018
  2. 2.Issued an order of prohibition restraining the Respondents from undertaking any further steps or actions in furtherance to the enforcement notice dated 29/5/2018 until the Nairobi Physical Planning Liaison Committee is set up and the public made aware of its operations

Authorities

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Legislation

  • Constitution of KenyaArticles 40, 43, 47
  • Fair Administrative Action ActSection 4(3)(b)
  • Physical Planning Act Cap 254Sections 5, 8, 8(2), 11, 13, 13(1), 29, 30(1), 38, 39(1), 39(2)
  • Building CodeSection 29(1)
  • Nairobi City County Building By Lawsnot specified

Cases cited (3)

  • Republic v Director of Land Housing and Urban Development - Laikipia County Ex Parte Philip King'ori Nderitu & Another
    [2017] eKLR
  • Republic v Attorney General & 7 others Ex-parte Konza Ranching and Farming Co-operative Society Limited
    [2018] eKLR
  • The Speaker of the National Assembly v Hon. James Njenga Karume
    [2008] 1KLR 425
Jurisdiction invoked
Judicial review jurisdiction of the Environment and Land Court under Articles 40, 43 and 47 of the Constitution and the Fair Administrative Action Act and Physical Planning Act

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 Nairobi City County & another Ex parte Kenafric Properties Ltd & another [2019] KEELC 2826 (KLR)", Case Analysis (2019). Judicial Review Misc. Application No. 51 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2826/eng@2019-06-03

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