Victor Juma Owiti & 4 others v Micheal Abala Wanga & 2 others [2021] KEELC 1342 (KLR)
The bottom line
#Kisumu court suspended a county burial ban notice because the county failed to involve the public before making the decision.
What this practically means
#Executive summary
#Key legal issues
#Threshold for grant of leave to apply for judicial review
Applicants proved sufficient interest/locus standi on a balance of probabilities, raised an arguable public-law case against a public body, and met the threshold for leave
The court applied the five prerequisites from Republic v Kenya Revenue Authority ex parte Keycorp Real Advisory Limited: sufficient interest, being affected by the decision, an arguable case, a public law matter, and a decision by a public body. The Applicants produced IDs and a title deed showing residence; the Respondents produced no contrary evidence. The undenied public participation issue engaged Section 5(1)(b) of the Fair Administrative Action Act.
Whether leave should operate as stay of the impugned Notice
Yes - the Notice is a continuing process amenable to being stopped, and its implementation should be suspended pending determination of legality
Relying on James Opiyo Wandayi v Kenya National Assembly, the court found the notice a continuing order, not a complete decision, and thus stayable at any stage. Prejudice pleaded by the Applicants and the need to preserve the position until legality was established justified the stay.
Public participation in administrative action
The Respondents' suggestion that public participation was not mandatory contradicts section 5(1)(b) of the Fair Administrative Action Act requiring consideration of views before administrative action
The issue of lack of public participation was raised prominently and not denied by the Respondents, who argued it was not mandatory as they were merely performing their duties. The court held this position flew in the face of the statutory duty to consider views submitted before taking administrative action, supporting the arguability of the case for leave.
Legal principles established
#- Leave to apply for judicial review is granted where, without going into depth, the court finds an arguable case fit for further investigation at a full hearing
- A continuing administrative decision may be stayed at any stage of proceedings
Court orders
#- 1.Leave granted to apply for the Judicial Review Order of Certiorari to remove and bring before the Court the Public Notice Reference No. CGK/COK/CM/PHL/VOL.1 dated 2nd March 2021
- 2.The leave granted to operate as stay of the implementation and/or enforcement of the impugned Notice
- Jurisdiction invoked
- Order 53 Rule 1 of the Civil Procedure Rules (leave to apply for judicial review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Victor Juma Owiti & 4 others v Micheal Abala Wanga & 2 others [2021] KEELC 1342 (KLR)", Case Analysis (2021). Judicial Review Application (Application under Certificate of Urgency dated 17th March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1342/eng@2021-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.