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ELCDismissedELC JR Case No. 10 of 2020· [2021] KEELC 1110 (KLR)

Republic v County Government of Mombasa Ex parte Emdund Kirigha Malusha; Fahmi Hussein Swaleh (Interested Party) (Environment and Land Judicial Review Case 10 of 2020) [2021] KEELC 1110 (KLR)

Environment and Land Court
9 November 2021
NMN.A. MATHEKA
2,703 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Mombasa court threw out a challenge to a demolition notice because the landowner never used the appeal route provided by law first.

What this practically means

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Executive summary

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The ex-parte applicant, registered owner of Plot No. MSA/BLOCK XVI/1404, sought an order of certiorari to quash an enforcement notice dated 19th November 2020 issued by the County Government of Mombasa directing him to demolish an unspecified structure on his plot within seven days on grounds of trespass, allegedly following a complaint by the interested party, the owner of the neighbouring Parcel No. Msa/Block XVI/1406. He argued that the decision was made without hearing him, without communicating the complaint, without a site visit, and was ultra vires the respondent's powers. The respondent countered that it considered the survey report, inspection report and 1994 building plans, and that judicial review concerns the decision-making process, not the decision's merits. The court, N.A. Matheka J, reaffirmed that judicial review is a discretionary remedy concerned with legality, irrationality and procedural impropriety. It held that the dispute fell within powers conferred under the Physical and Land Use Planning Act, 2019, which under Section 72 provides for enforcement notices and under Section 80 an appeal to the County Physical and Land Use Planning Liaison Committee. No such appeal was filed, and the court found no exceptional circumstances under section 9(4) of the Fair Administrative Actions Act to exempt the applicant from exhausting that remedy. Concluding that the suit offended the exhaustion doctrine and that no grounds for certiorari were established, the court dismissed the application dated 10th December 2020 with costs to the respondent.

Key legal issues

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01

Exhaustion of statutory remedies

Holding

The application was barred because the applicant did not appeal to the County Physical and Land Use Planning Liaison Committee as required by the Physical and Land Use Planning Act

Reasoning

The enforcement notice was issued under Section 72 of the Physical and Land Use Planning Act, which prescribes an appeal to the County Physical and Land Use Planning Liaison Committee under Section 80. No appeal was registered. Section 9(3) and (4) of the Fair Administrative Actions Act mandates exhaustion absent exceptional circumstances, none of which the court found.

p. 3
02

Scope of judicial review

Holding

Judicial review concerns the decision-making process, not the merits of the decision

Reasoning

Relying on Tradewise Agencies and Yaya Towers, the court reiterated that relief lies only where the decision is tainted with illegality, irrationality or procedural impropriety per Pastoli vs Kabale District Local Government Council. The applicant did not establish that the respondent acted outside its powers in issuing the enforcement notice.

p. 2

Legal principles established

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  • Where a statute prescribes a procedure for challenging an administrative decision, that procedure must be exhausted before invoking the court's judicial review jurisdiction

Court orders

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  1. 1.The ex-parte applicant's application dated 10th December 2020 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3(1)
  • Law Reform ActSection 8, Cap 26
  • Physical Planning ActSection 91 (repealed by Act No. 13 of 2019)
  • Physical and Land Use Planning ActSections 72, 72(3), 73-89, 80; Part VI; No. 13 of 2019
  • Fair Administrative Actions ActSections 9(3), 9(4)
  • Constitution of KenyaArticle 159

Cases cited (11)

  • Konton Trading Limited vs Kenya Revenue Authority & 3 Others
    (2018) eKLR JR APP No. 646 of 2017
  • Republic vs Kenya Revenue Authority & Another Ex-Parte Tradewise Agencies
    (2013) eKLR
  • Pastoli vs. Kabale District Local Government Council and Others
    (2008) 2 EA 300
  • Republic vs. Kenya Revenue Authority ex parte Yaya Towers Limited
    (2008) eKLR
  • Republic vs. Judicial Service Commission of Kenya Ex Parte Stephen S. Pareno
    Nairobi HCMA No. 1025 of 2003 (2004) 1 KLR 203
  • Welamondi vs The Chairman, Electoral Commission of Kenya
    (2002) 1 KLR
  • Republic vs Chairperson Business Premises Rent Tribunal & another Ex-parte Keiyo Housing Cooperative Society Ltd & Another
    (2014) eKLR
  • Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others
    Civil Application No. 307/2003
  • Speaker of National Assembly vs Karume
    1992 KLR
  • Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 others
    2015 eKLR
  • Matter of the Mui Coal Basin Local Community
    2015 eKLR
Jurisdiction invoked
Order 53 Rule 3(1) of the Civil Procedure Rules and Section 8 of the Law Reform Act, Cap 26

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 Mombasa Ex parte Emdund Kirigha Malusha; Fahmi Hussein Swaleh (Interested Party) (Environment and Land Judicial Review Case 10 of 2020) [2021] KEELC 1110 (KLR)", Case Analysis (2021). ELC JR Case No. 10 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1110/eng@2021-11-09

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