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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 1165 (KLR)

Depar Limited v County Executive Committee Member for Lands, Physical & 2 others [2020] KEELC 1165 (KLR)

Environment and Land Court
30 September 2020
MOM. C. Oundo
2,129 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped a county enforcement notice because authorities must hear you out before halting your approved construction project.

What this practically means

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Executive summary

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The Petitioner, a limited liability company licensed by the Energy and Petroleum Regulatory Authority to operate a liquefied petroleum gas distribution business, purchased LR Aguthi/Gatitu/5642 from Wicos Investment Co-operative Society Limited and obtained change of user approval, development permission, an Environmental Impact Assessment Licence following public participation, and a construction permit from the Energy and Petroleum Regulatory Authority. On 21st May 2020 the 1st Respondent issued an Enforcement Notice stopping further construction, allegedly arising from a public petition, exposing the Petitioner to delay penalties of Kshs 500,000 per week. The Petitioner moved to the Environment and Land Court at Nyeri by application dated 29th May 2020 seeking conservatory orders staying the Enforcement Notice, restraining interference with its development, and production of the alleged public petition. The Respondents, though served, filed no response or submissions. The Court, Oundo J, considered Order 51 Rule 14(4) of the Civil Procedure Rules permitting an ex parte hearing and held that the uncontroverted supporting affidavit stood unrebutted. Applying Giella vs Cassman Brown and the definition of a prima facie case in Mrao vs First American Bank, the Court found that issuing an Enforcement Notice against an approved construction without affording the Petitioner a hearing violated its right to fair administrative action and that, having obtained approvals and public participation, the Petitioner had a right to develop its property without interference. The Court granted injunctions in terms of prayers (iv) and (v), staying the Enforcement Notice and restraining interference with the development, and ordered costs to follow the event. Judgment dated and delivered at Nyeri on 30th September 2020.

Key legal issues

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01

Whether a prima facie case with a probability of success was established for an interlocutory injunction

Holding

Yes - the Enforcement Notice was issued without a hearing despite full approvals, infringing the right to fair administrative action and the right to develop property

Reasoning

Applying Giella vs Cassman Brown, the Court found that the petitioner had obtained change of user approval, development permission, an EIA licence and regulatory permits after public participation. The Enforcement Notice stopping construction issued without any hearing breached the duty of procedural fairness attaching to administrative action. The uncontroverted supporting affidavit meant the averments stood unrebutted, establishing a prima facie case with probability of success justifying injunction in terms of prayers (iv) and (v).

p. 4
02

Consequence of the Respondents' failure to file a response under Order 51 Rule 14(4) of the Civil Procedure Rules

Holding

The application could be heard ex parte; the uncontroverted supporting affidavit evidence was accepted

Reasoning

Order 51 Rule 14(4) permits an application to proceed ex parte where a respondent fails to file a response. The respondents were served but filed neither a replying affidavit nor submissions. The Court nonetheless satisfied itself that the orders sought were justiciable before granting them, and treated the uncontroverted affidavit evidence as establishing the factual basis for the injunction.

p. 4

Legal principles established

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  • An administrative decision affecting a person must not be taken without affording that person an opportunity to be heard; an enforcement notice issued without a hearing violates the right to fair administrative action
  • Having obtained approvals including public participation, a party has the right to develop and use its property without interference, which may be protected by interlocutory injunction

Court orders

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  1. 1.Conservatory order staying execution of the Enforcement Notice dated 21st May 2020 issued by the Respondents pending the hearing and determination of the Petition (prayer (iv))
  2. 2.Conservatory order restraining the Respondents, their officers and agents from any further arbitrary search, entry or interference with the development of the Petitioner's premises otherwise than on the strength of a lawful warrant issued by a court of competent jurisdiction (prayer (v))
  3. 3.Costs to follow the event

Authorities

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Legislation

  • Constitution of the Republic of KenyaArticle 10
  • Constitution of the Republic of KenyaArticles 27, 28, 31, 35, 40(2), 47, 48 and 50
  • Civil Procedure RulesOrder 51 Rule 14(4)
  • Physical and Land Use Planning ActSection 72(3)
  • Physical and Land Use Planning ActSections 76 and 77

Cases cited (3)

  • Giella vs Cassman Brown
    [1973] EA 358
  • Mrao vs First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • E.A. Industries v. Trufoods
    [1972] E.A. 420
Jurisdiction invoked
Original constitutional petition jurisdiction (fundamental rights and freedoms under the Constitution), with interlocutory relief sought under the Civil Procedure Rules

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, "Depar Limited v County Executive Committee Member for Lands, Physical & 2 others [2020] KEELC 1165 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1165/eng@2020-09-30

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