Nancy Wangari Kimani v County Executive Member – Lands, Housing, Physical Planning and Urbanization & County Government of Nyeri (? 4 of 2019) [2020] KEELC 1233 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether leave under Order 53 was required before seeking certiorari and prohibition
Yes; failure to obtain leave offended Order 53 Rule 1 and the ground must fail
The court examined Order 53 rules 1, 2 and 3 of the Civil Procedure Rules, which require that no application for mandamus, prohibition or certiorari be made unless leave has been granted ex parte. The Petitioner sought certiorari and prohibition without leave, contravening the statute. The court held that procedure laid down in a statute must be properly observed and that courts will not shy away from ensuring the law is followed.
Whether the Petitioner was required to exhaust statutory remedies under the Physical and Land Use Planning Act
Yes; she ought to have referred the dispute to the National Physical and Land Use Planning Liaison Committee first
The impugned letter temporarily suspending the development approval raised an ownership/planning dispute. Section 32(4) and (5) of the Physical and Land Use Planning Act provides an appeal path to the Liaison Committee and then to the Environment and Land Court. Following Republic v NEMA, judicial review lies only exceptionally where a statutory appeal procedure exists; the Petitioner should have exhausted that mechanism before coming to court.
Legal principles established
#- Applications for certiorari, prohibition or mandamus require prior leave of the Court under Order 53 of the Civil Procedure Rules
- Where Parliament has provided a statutory appeal procedure, judicial review will be granted only in exceptional circumstances
Court orders
#- 1.Dismissal of the Petitioner's Notice of Motion dated 23rd October 2019
- 2.Costs to follow the event
- Jurisdiction invoked
- Articles 47, 50 and 40 of the Constitution; judicial review jurisdiction over suspension of development approval under the Physical and Land Use Planning Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Wangari Kimani v County Executive Member – Lands, Housing, Physical Planning and Urbanization & County Government of Nyeri (? 4 of 2019) [2020] KEELC 1233 (KLR)", Case Analysis (2020). Judicial Review application dated 23rd October 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1233/eng@2020-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.