Republic v County Government of Meru & another Ex parte Theresa Stephen M’ Ikiunga [2020] KEELC 2432 (KLR)
The bottom line
#A Kenyan court forced Meru County to formally consider a landowner's building plans after it made its decision in secret, and to pay the legal costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's failure to communicate its decision on the building plans violated fair administrative action
Yes; the Respondent never informed the applicant of the decision, denied him prior and adequate notice and an opportunity to be heard, so the decision (if any) is null and void
The court found no evidence that the Respondent informed the applicant of any decision regarding approval of the plans or the refusal to accept land rent. The respondent's reliance on the sewer line went to the merits, which judicial review does not examine. Article 47 and section 4(3) of the Fair Administrative Action Act entitle a person to prior, adequate notice, reasons, and a hearing; these were denied, so the decision was declared null and void.
Whether the court can compel approval of the building plans
No; mandamus can only compel the Respondent to consider and determine the application, not to approve it
Applying the principles in Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge, the court held that where a statute vests discretion in a decision maker, mandamus can compel only the consideration and determination of an application, not a particular outcome. Approval or refusal of plans is for the Respondent; the applicant is entitled to a clear response either way and can then pursue remedies under the Physical Planning Act.
Whether the claim for prohibition is res judicata given the decree in Meru ELC No. 68 of 2014
Prohibition was nonetheless issued restraining interference pending consideration of the plans
The Respondent argued that prohibitory orders in ELC Suit No. 68 of 2014 rendered the prohibition claim res judicata. The court did not sustain that objection and proceeded to issue a conditional order of prohibition, restraining interference with the applicant's peaceful and quiet use of the plot unless and until the Respondent considers the application as ordered.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision itself
- A decision reached in violation of natural justice is void regardless of whether the same result would have been reached
- Mandamus compels performance of a public duty but cannot dictate the outcome of a discretionary decision
- Notice under Article 47 read with section 4(3) of the Fair Administrative Action Act must be prior, adequate, and disclose the nature and reasons for the proposed action
Court orders
#- 1.An order of mandamus compelling the Respondents to CONSIDER the request and/or plans to put up a temporary structure on the plot and to accept all land rent as and when paid, in line with relevant laws and procedures, particularly under the Physical Planning Act
- 2.An order of prohibition prohibiting the Respondents from interfering with the Ex-parte applicant's peaceful and quiet use of the plot unless and until consideration is made in terms of order (1)
- 3.Compliance period of six (6) months given to the Respondent, failure to which the Ex-parte applicant may commence contempt proceedings
- 4.The Respondent condemned to pay the costs of the suit
- Jurisdiction invoked
- Judicial review under Order 53 of the Civil Procedure Rules; Article 47 of the Constitution and the Fair Administrative Action Act, 2015; Physical Planning Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Government of Meru & another Ex parte Theresa Stephen M’ Ikiunga [2020] KEELC 2432 (KLR)", Case Analysis (2020). Meru High Court Judicial Review (ELC) – Ex-parte Applicant Stephen Michuki M’Kiunga; leave granted 22/10/2018, motion filed 26/10/2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2432/eng@2020-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.