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ELCPartially AllowedMeru High Court Judicial Review (ELC) – Ex-parte Applicant Stephen Michuki M’Kiunga; leave granted 22/10/2018, motion filed 26/10/2018· [2020] KEELC 2432 (KLR)

Republic v County Government of Meru & another Ex parte Theresa Stephen M’ Ikiunga [2020] KEELC 2432 (KLR)

Environment and Land Court
20 May 2020
4,119 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The ex-parte applicant, Stephen Michuki M'Kiunga (since deceased and substituted by his legal representative, Theresa Stephen Kiunga), the registered owner of Meru Municipality Block 11/287 as confirmed by a decree in Meru ELC No. 68 of 2014, sought judicial review orders of mandamus compelling the County Government of Meru to approve his building plans for temporary structures and to accept land rent, and of prohibition restraining interference with his use of the plot. The respondent, through the Director of Physical Planning, opposed the motion, contending that the plot sits over sewer lines serving public utilities and that it lawfully resolved not to approve the plans, and argued the prohibition claim was res judicata. The court held that judicial review concerns the decision-making process, not the merits. It found no evidence that the respondent ever communicated any decision to the applicant or afforded him notice and a hearing, contrary to Article 47 of the Constitution and section 4(3) of the Fair Administrative Action Act, and declared the decision null and void. The respondent's sewer-line justification went to the merits and could not be examined. On the relief, applying Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge, the court held it lacked jurisdiction to order approval of the plans; mandamus could only compel consideration and determination of the application. Mandamus and a conditional order of prohibition issued, with six months' compliance period subject to contempt proceedings, and the respondent was condemned to pay the costs. Judgment delivered by Hon. Lucy N. Mbugua, ELC Judge, on 20 May 2020, via electronic mail in line with COVID-19 practice directions.

Key legal issues

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01

Whether the Respondent's failure to communicate its decision on the building plans violated fair administrative action

Holding

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

Reasoning

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.

p. 3
02

Whether the court can compel approval of the building plans

Holding

No; mandamus can only compel the Respondent to consider and determine the application, not to approve it

Reasoning

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.

p. 4
03

Whether the claim for prohibition is res judicata given the decree in Meru ELC No. 68 of 2014

Holding

Prohibition was nonetheless issued restraining interference pending consideration of the plans

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 3.Compliance period of six (6) months given to the Respondent, failure to which the Ex-parte applicant may commence contempt proceedings
  4. 4.The Respondent condemned to pay the costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 47(1) and (2); Article 232
  • Fair Administrative Action Act No. 4 of 2015Sections 2, 3, 4 and 4(3); section 6
  • Physical Planning ActPart 3; Section 15(4)
  • Civil Procedure RulesOrder 53; Order 21 rule 1
  • Liquor Licensing Act, Chapter 121 Laws of KenyaSections 4(1) and 8

Cases cited (15)

  • Kenya Human Rights Commission & another v Non-Governmental Organizations Co-ordination Board & another
    [2018] eKLR
  • Judicial Service Commission vs. Mbalu Mutava & Another
    (2014) eKLR
  • Dry Associates Ltd. Vs. Capital Markets Authority and Another
    (2012) eKLR
  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR
  • Republic v Nairobi City County Government & another Ex Parte Simon Mukuria Kamau T/A City Clothing
    [2017] eKLR
  • Eliud Nyauma Omwoyor vs. Kenyatta University & 3 Others
    (2016) eKLR; Nairobi H.C Petition no. 408 of 2015
  • Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd
    Civil Appeal No. 185 of 2001
  • Republic vs. The Registrar of Companies Ex Parte Transglobal Freight Logistics Limited
    Nairobi HCMA No. 711 of 2005
  • Republic v Director of Physical Planning Ex-Parte Globe Developers Limited & 3 others
    [2017] eKLR
  • Ridge vs. Baldwin
    [1963] 2 All ER 66
  • General Medical Council vs. Spackman
    [1943] 2 All ER 337
  • R vs. Vice Chancellor JKUAT
    Misc. Appl. No. 30 of 2007
  • National Land Commission & 2 others Ex Parte Archdiocese of Nairobi Kenya Registered Trustees (St. Joseph Mukasa Catholic Church Kahawa West Welfare Association
    Nairobi JR 266 of 2017
  • Geothermal Development Company Limited vs. Attorney General & 3 Others
    [2013] eKLR
  • Wainaina Kenyanjui & 2 others v Andrew Ng'ang'a
    [2013] eKLR
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

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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, "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.