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ELCDismissedConstitutional Petition No. 6 of 2017 (amended petition dated 12th April 2018)· [2019] KEELC 3042 (KLR)

Athuuri Agikuyu Uasin Gishu County v Uasin Gishu County Government [2019] KEELC 3042 (KLR)

High Court of Kenya
15 May 2019
MOM.A. ODENY
2,452 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's High Court dismissed a group's challenge to a cancelled venue booking because they skipped the county's internal appeals and other required remedies first.

What this practically means

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Executive summary

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The petitioner, a registered community based organization in Uasin Gishu County, sued under Article 22(2)(d) of the Constitution on behalf of its members, challenging the County Government of Uasin Gishu's cancellation of its booking of the Social Hall for a cultural event scheduled for 3rd December 2016. The booking had been approved and fees paid, but on 29th November 2016 the respondent cancelled it on account of an unforeseen county function, with the letter received on 2nd December 2016, the day before the event. The petitioner sought a declaration that the cancellation was a nullity for breach of Articles 1, 10, 40 and 47, damages of Ksh 5,000,000 for breach of fair administrative action, and costs. The respondent argued the mandate over public facilities was theirs under the Fourth Schedule, that alternative remedies had to be exhausted first, and that the suit was motivated by profit and politics. The court framed two issues: whether the decision violated the Fair Administrative Action Act, and whether the amended petition had merit. Applying the grounds of illegality, irrationality and procedural impropriety, and the section 7(2) grounds of review, the court found no breach: the respondent had given reasons and needed the venue for Jamhuri Day celebrations and national festivals. Relying on section 9 of the Fair Administrative Action Act, the court further held that the petitioner should have exhausted internal mechanisms and pursued judicial review rather than a petition. The petition was dismissed with no orders as to costs.

Key legal issues

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01

Whether the cancellation of the Social Hall booking breached Article 47 and the Fair Administrative Action Act

Holding

No breach established - the respondent gave written reasons and no ground of review under section 7(2) was proved

Reasoning

The court applied the grounds of illegality, irrationality and procedural impropriety and reviewed the section 7(2) grounds of review (bias, procedural impropriety, ulterior motive, unreasonableness, legitimate expectation, abuse of power) and found none proved. The respondent had explained that the venue was required for national Jamhuri Day celebrations and the Kenya Music and Cultural Festivals, an event of national importance outweighing the petitioner's undisclosed cultural event.

p. 3
02

Whether the petitioner was required to exhaust alternative remedies before filing the constitutional petition

Holding

Yes - the petitioner should have moved by judicial review and exhausted internal mechanisms first

Reasoning

Section 9 of the Fair Administrative Action Act requires exhaustion of internal mechanisms and remedies under other written law before a court reviews administrative action, save in exceptional circumstances. The petitioner moved to court immediately upon receiving the cancellation letter without attempting the internal mechanisms, which the court held was done in haste; the proper vehicle was judicial review, not a petition.

p. 4

Legal principles established

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  • An administrative decision may only be challenged on grounds of illegality, irrationality and procedural impropriety
  • Under section 9(2) of the Fair Administrative Action Act, a court shall not review administrative action unless internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted

Court orders

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  1. 1.The amended petition is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2(4), 10, 22(2)(d), 22(3), 47, 260 and Fourth Schedule
  • Fair Administrative Action Actsections 4, 7(2), 7(2)(i) and 9(1)-(5)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rulesrule 4(2)(iv)
  • Law Reform Act (Cap 26, Laws of Kenya)judicial review jurisdiction (as referred in Dry Associates quote)

Cases cited (13)

  • Multiple Hauliers East Africa Ltd v. A.G & 10 Ors
    (2013) eKLR
  • Abott v. Sullivan
    (1952) 1 KB
  • Dry Associates Ltd v. Capital Markets Authority and Another
    [2012] eKLR / Ptn no. 328/2011
  • Isaac Gathungu Wanjohi v. A.G & Ors
    High Court Ptn no. 154/2011
  • Benard Murage v. Fine Serve Africa Limited & 3 Ors
    [2015] eKLR
  • Damian Delfonte v. The A.G of Trinidad and Tobago
    CA 84 of 2004
  • Re Hardial Singh & Ors
    [1979] KLR 18, [1976-80] 1 KLR 1090
  • Peter Ochara Anam & 3 Ors v. Constituencies Development Fund Board & 4 Ors
    [2011] eKLR
  • Ashok Kumar Pandey v. State of West Bengal
  • Speaker of the Senate & Anor v. A.G & Anor
    Advisory Opinion Reference no. 2/2013 eKLR
  • R v. A.G & Anor ex-parte Stephen Wanyee Roki
    [2016] eKLR
  • President of the Republic of South Africa and Others v. South African Rugby Football Union and Others
    (CCT16/98) 2000 (1) SA 1
  • Judicial Service Commission v Mbalu Mutava & another
    [2014] eKLR
Jurisdiction invoked
Article 22(2)(d) of the Constitution and the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, original constitutional petition jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Athuuri Agikuyu Uasin Gishu County v Uasin Gishu County Government [2019] KEELC 3042 (KLR)", Case Analysis (2019). Constitutional Petition No. 6 of 2017 (amended petition dated 12th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3042/eng@2019-05-15

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