Scorpion Properties Limited v Director of Planning, Compliance & Enforcement Nairobi City County & another [2020] KEELC 548 (KLR)

Section 9(2) of the Fair Administrative Action Act, 2015 made exhaustion of alternative remedies a statutory requirement in tandem with Article 159(2)(c). The court held it has no discretion in the matter save where exceptional circumstances justify exemption under section 9(4). The applicant gave no reason for not pursuing the statutory appeal, and its claim that the notice was invalid was a ground of appeal rather than a basis for judicial review.

The applicant's ownership of the suit property was disputed, the property was listed in the Ndungu Report as illegally allocated public land, and a civil suit over ownership was pending. Determining these contested issues of fact would require viva voce evidence, which judicial review cannot accommodate. The pending civil suit was the better forum to resolve all issues surrounding ownership of the suit property.

Under section 38 of the Physical Planning Act, an Enforcement Notice does not take effect until the statutory appeal process is exhausted. The applicant was entitled to be heard by objecting to the notice and appealing, but did not make use of that mechanism. Accordingly, there was no prima facie evidence that the right to fair administrative action was violated.

The Enforcement Notice was provided for in law, and whether it had any basis could only be interrogated through the statutory appeal process. The court, exercising its discretion, declined leave; consequently it was unnecessary to consider whether leave should operate as a stay.