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ELCPartially AllowedJudicial Review E043 of 2021· [2021] KEELC 1387 (KLR)

Dennis Mwangi Nginyi v Alphope Holdings Limited & others [2021] KEELC 1387 (KLR)

Environment and Land Court
18 October 2021
2,595 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi resident won court permission to challenge an apartment project approved without public notice, and the finished flats cannot be sold or occupied for now.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (S. Okong'o, J) determined a Chamber Summons application dated 20th April, 2021 in which the applicant, proprietor of L.R No. Nairobi/Block 139/706 in Maruri Estate, Roysambu, sought leave to apply for judicial review orders of certiorari and prohibition against a change of user approval granted on 13th September, 2018 to the 1st respondent in respect of the adjoining property, L.R No. Nairobi/Block 139/705. The estate leases restricted user to one private dwelling house, yet the 1st respondent was constructing multi-dwelling apartments. The applicant contended that the approval was granted without public notice, had lapsed, and that the development lacked the requisite environmental impact assessment licence and Commissioner of Lands approval, violating his rights to privacy, enjoyment of land and a clean environment. The 1st and 2nd respondents raised preliminary objections premised on failure to exhaust alternative statutory remedies. The court framed two issues: whether a case for leave was made out, and whether leave should operate as a stay. Applying the arguable case test, the court found a prima facie case established, noting the absence of published notice, the lapse of the approval without extension, and the inaction of the statutory regulators. On exhaustion, the court held the applicant could not have pursued statutory remedies since the approval was granted without notice and the appeal window had closed before he knew of it. Leave was granted to operate as a stay of leasing, sale or occupation of the constructed houses, though construction itself was not halted given its advanced stage. The judicial review application was to be filed within 21 days, with costs to abide its outcome.

Key legal issues

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01

Whether the applicant made out a case for grant of leave to apply for judicial review

Holding

The applicant established a prima facie case for leave to apply for certiorari and prohibition, having demonstrated that decisions affecting him were made without according him an opportunity to be heard, and that the change of user approval had expired without extension

Reasoning

The court found that the applicant demonstrated a prima facie case of violation of his constitutional and statutory rights. The change of user approval issued on 13th September, 2018 had lapsed, and there was no evidence of extension. Further, no notice of the application for change of user was published in a daily newspaper or placed on the suit property, denying the public an opportunity to object.

p. 3
02

Whether the applicant was required to exhaust alternative remedies before approaching the court

Holding

The applicant was not required to exhaust alternative remedies as the change of user approval was granted without notice and the statutory appeal period had expired by the time the applicant learnt of the approval

Reasoning

The court acknowledged the general rule of exhausting alternative remedies but found it inapplicable. The applicant could not have pursued the dispute resolution mechanism in the Physical Planning Act because no notice was published. By March 2021 when he learnt of the 2018 approval, the statutory appeal period had lapsed. Similarly, he could not appeal to the National Environmental Tribunal as no evidence existed of an environmental impact assessment licence.

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03

Whether leave if granted should operate as a stay of the approval and of construction

Holding

Leave granted did operate as a stay but only in respect of occupation of the constructed houses, not the approval itself (which had expired) nor the ongoing construction (already at an advanced stage)

Reasoning

The court distinguished between the change of user approval, the construction and the occupation of the constructed houses. The approval had already been granted and had expired, so it could not be stayed. The construction was at an advanced stage, so the court found it more appropriate to stop occupation of the houses rather than halt construction.

p. 3

Legal principles established

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  • The test for grant of leave for judicial review is whether there is an arguable case, that the reliefs might be granted on the hearing of the substantive application
  • The purpose of an application for leave to apply for judicial review is to eliminate frivolous, vexatious or hopeless applications at an early stage and to ensure only fit cases proceed to substantive hearing

Court orders

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  1. 1.Leave granted to apply for judicial review orders (certiorari and prohibition) as per prayers 4 and 5 of the Chamber Summons dated 20th April, 2021
  2. 2.Leave granted to operate as a stay of leasing, sale or occupation of the multi-dwelling houses or apartments or any of them being constructed by the 1st respondent on the suit property pending the hearing of the judicial review application
  3. 3.The order shall not prevent the 1st respondent from employing security guards to protect the property
  4. 4.The judicial review application to be filed within 21 days from the date of the ruling
  5. 5.Costs of the application to abide the outcome of the judicial review application

Authorities

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Legislation

  • Physical Planning Actdispute resolution mechanism
  • Constitution of Kenya, 2010Article 47 (fair administrative action)
  • Fair Administrative Action Actgenerally
  • Civil Procedure RulesOrder 53 rules 1(1) and 1(4)
  • Environmental Management and Co-ordination Actgenerally (environmental impact assessment)

Cases cited (2)

  • Njuguna v Minister for Agriculture
    [2000] 1 E.A 184
  • Republic v County Council of Kwale & Another Ex Parte Kondo & 57 Others
    [1998] 1 KLR (E&L)
Jurisdiction invoked
Fair Administrative Action Act and order 53 rule 1(1)(4) of the Civil Procedure Rules

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, "Dennis Mwangi Nginyi v Alphope Holdings Limited & others [2021] KEELC 1387 (KLR)", Case Analysis (2021). Judicial Review E043 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1387/eng@2021-10-18

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