Republic v County Government of Laikipia Exparte Mohamed Asafa Woche [2020] KEELC 3281 (KLR)
The bottom line
#A Kenyan court quashed a county's stop-work notice and awarded damages because the landowner was never heard and approval was deemed granted by law.
What this practically means
#Executive summary
#Key legal issues
#Whether the enforcement notice issued by the Respondent violated the ex-parte Applicant's right to fair administrative action
The enforcement notice was unlawful and un-procedural as it was issued without affording the Applicant a hearing and by a works officer rather than the county executive committee member
The court found the issuance of the enforcement notice was undisputed administrative action, attracting the duty to act expeditiously, lawfully and procedurally fairly. The notice stopped construction already approved without any opportunity to be heard, breaching Article 47 and Section 4 of the Fair Administrative Actions Act. The notice was also signed by a works officer not authorised under the Physical and Land Use Planning Act, rendering it ultra vires.
Whether development permission was deemed granted under Section 58(6) of the Physical and Land Use Planning Act
Having received no written response from June 2019 to the filing of the application, the Applicant's development permission was assumed granted by operation of law
The Applicant applied for development approval between June and August 2019, secured approvals from NLC, NEMA, Public Health, Land and Physical Planning, the County Engineer and Ministry of Infrastructure, and paid all fees. No written response came within sixty days as required, so Section 58(6) deemed permission granted, making the later enforcement notice to stop the approved construction unlawful.
Whether the Court had jurisdiction to entertain the judicial review application
The Court had jurisdiction under Section 93 of the Physical and Land Use Planning Act, which vests disputes relating to physical and land use planning in the Environment and Land Court
Counsel relied on Section 93 of the Physical and Land Use Planning Act which provides that all disputes relating to physical and land use planning, before establishment of the national and county liaison committees, shall be heard and determined by the Environment and Land Court. The court accepted this submission; the Respondent filed no response or appearance and did not contest jurisdiction.
Whether the Court could award damages in judicial review proceedings
General damages were awarded for the unfair disruption of the Applicant's construction works
The Applicant relied on Republic v County Government of Laikipia [2019] eKLR where damages were granted in a similar matter. The court found the contravention of Section 58(6), 60 and 61 of the Act infringed the Applicant's Article 47 rights, and in the final orders compelled the Respondent to pay general damages for the disruption from 4th September 2019 to the date of judgment.
Whether the Petition disclosed a violation with the precision required by Anarita Karimi Njeru
The Applicant satisfied the Anarita Karimi Njeru standard by identifying the specific Articles infringed and availing affidavit evidence of the violation
Applying the Anarita Karimi Njeru standard, the court found the Applicant clearly identified the relevant and specific constitutional provisions (Article 47 and Section 4 of the Fair Administrative Actions Act) and set out with reasonable precision the provision infringed, the manner of infringement, and supported the claim with affidavit evidence of the enforcement notice and approvals obtained.
Legal principles established
#- Where an applicant does not receive a written response to a development permission application within sixty days, permission is by law assumed to have been granted
- An administrative body adversely affecting a person's interests must afford a hearing before taking its decision; failure to do so violates Article 47 and Section 4 of the Fair Administrative Actions Act
- A decision in breach of natural justice cannot be cured by showing the same decision would otherwise have been reached
- Judicial review is concerned with the decision-making process, not the merits of the decision
Court orders
#- 1.An order of certiorari quashing the Enforcement Notice dated 4th September 2019 requiring the ex-parte Applicant to stop further works
- 2.An order of prohibition against the County Government of Laikipia, its agents, employees and any person acting on its behalf from stopping further works on L.R. No. 10422/98 and L.R. No. 10422/96 - Trench Farm
- 3.An order of mandamus compelling the County Government of Laikipia to unconditionally issue the development permission for the ex-parte Applicant's construction works
- 4.General damages payable by the Respondent for the unfair disruption of the ex-parte Applicant's development and construction works from 4th September 2019 to the date of judgment
- 5.Costs of the proceedings to the Applicant
- Jurisdiction invoked
- Section 93 of the Physical and Land Use Planning Act, 2019 read with Order 53 of the Civil Procedure Rules, 2010 and the Law Reform Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v County Government of Laikipia Exparte Mohamed Asafa Woche [2020] KEELC 3281 (KLR)", Case Analysis (2020). Judicial Review No. 7 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3281/eng@2020-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.