Ngomo Multi-Purpose Co-operative Society Ltd v County Government of Mombasa [2021] KEELC 2828 (KLR)
The bottom line
#The High Court dismissed a co-operative's attempt to block a county enforcement notice because it skipped the cheaper, faster appeal route provided by law.
What this practically means
#Executive summary
#Key legal issues
#Whether the court had jurisdiction to entertain the judicial review application given the statutory appeal mechanism under the Physical and Land Use Planning Act, 2019
The court had no jurisdiction because the applicant had not exhausted the alternative remedy of appeal to the Liaison Committee against the enforcement notice of 30th September 2020
Section 72(3) of the Physical and Land Use Planning Act, 2019 provides that a person aggrieved by an enforcement notice may appeal to the relevant County Physical and Land Use Planning Liaison Committee within fourteen days. The enforcement notice itself informed the applicant of the right of appeal which would suspend its operation. The pendency of the earlier 2016 appeal did not excuse bypassing this procedure for the fresh notice; the complaint about the second notice should have been raised before the Liaison Committee.
Whether the applicant demonstrated exceptional circumstances warranting exemption from exhausting alternative remedies under Section 9(2) of the Fair Administrative Action Act
No exceptional circumstances were shown and no exemption was sought; the applicant lodged no appeal against the 2020 notice
The Fair Administrative Action Act requires an applicant to show that remedies under other written law have been exhausted, and the onus lies on the applicant to demonstrate exceptional circumstances justifying an exemption under Section 9(4). There was no evidence of any complaint or appeal lodged against the 30th September 2020 enforcement notice to the Liaison Committee, the National Liaison Committee or the court, so the judicial review application was incompetent.
Whether judicial review remedies are available where an alternative remedy exists
Judicial review is a relief of last resort and unavailable where an efficacious alternative remedy exists
The court endorsed the principle that judicial review should not be treated as an alternative mode of redress to remedies available under other processes, and that where the Constitution or an Act of Parliament prescribes a procedure for settlement of disputes, that procedure must be followed first, per Articles 50(1) and 159(2) of the Constitution and the Karume principle.
Legal principles established
#- Where a clear procedure for redress of a grievance is prescribed by statute, that procedure must be strictly followed before resort to judicial review
- Judicial review is a remedy of last resort and is unavailable where an alternative efficacious statutory remedy exists
- Under Section 9(2) of the Fair Administrative Action Act, a court cannot review an administrative action unless internal mechanisms for appeal or review and all remedies under other written law are first exhausted, absent exceptional circumstances justifying exemption
Court orders
#- 1.The Notice of Motion dated 3rd November, 2020 is dismissed
- 2.Costs of the application awarded to the Respondent
- Jurisdiction invoked
- Order 53 rules 3 and 4 of the Civil Procedure Rules; Section 8(1) and 9 of the Law Reform Act (cap 26); Section 9 of the Fair Administrative Action Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngomo Multi-Purpose Co-operative Society Ltd v County Government of Mombasa [2021] KEELC 2828 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2828/eng@2021-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.