Dennis Mwangi Nginyi v Alphope Holdings Limited & others [2021] KEELC 1387 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant made out a case for grant of leave to apply for judicial review
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
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.
Whether the applicant was required to exhaust alternative remedies before approaching the court
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
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.
Whether leave if granted should operate as a stay of the approval and of construction
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)
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.
Legal principles established
#- 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
#- 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.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.The order shall not prevent the 1st respondent from employing security guards to protect the property
- 4.The judicial review application to be filed within 21 days from the date of the ruling
- 5.Costs of the application to abide the outcome of the judicial review application
- Jurisdiction invoked
- Fair Administrative Action Act and order 53 rule 1(1)(4) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.