Republic v Director of Public Health and Sanitation,Kisii County & 2 others [2021] KEELC 4471 (KLR)
The bottom line
#The High Court quashed Kisii County's closure notice because the property owner was never given a hearing before the decision was made.
What this practically means
#Executive summary
#Key legal issues
#Whether the closure/stop use notice was an administrative action attracting Article 47 protections
The decision culminating in the closure notice was an administrative action arrived at without considering the views of the Applicant, infringing the right to fair administrative action
The notice impugned the authenticity of the approved building plans and questioned the legality of the business permit. Having earlier issued a business permit based on those approvals, the Respondents were obliged, before any fresh decision, to notify the Applicant and invite his response in observance of natural justice. No hearing was afforded, so the decision was unlawful and procedurally unfair.
Scope of judicial review jurisdiction
Judicial review challenges the process, not the merits; the court does not act as a court of appeal over the decision maker
Relying on the Court of Appeal's decision in Municipal Council of Mombasa v Republic & Umoja Consultants, the court confined itself to whether the decision maker had jurisdiction, whether affected persons were heard, and whether relevant/irrelevant matters were considered, rather than the sufficiency of evidence of forgery.
Appropriate remedy where a flawed decision has already been made
Certiorari, not prohibition, is the efficacious remedy against a decision already made; prohibition lies only against contemplated decisions
Citing Kenya National Examinations Council v Republic Ex parte Geoffrey Gathenji Njoroge, the court held that only certiorari can quash a decision already made where the rules of natural justice were not complied with, and refused the prohibition order as speculative.
Legal principles established
#- Judicial review is concerned with the decision-making process, not the merits of the decision
- An administrative body must afford an affected party a hearing before arriving at a decision affecting that party's interests
- A decision taken without hearing the affected person infringes the right to fair administrative action under Article 47
Court orders
#- 1.An order of certiorari issued to bring to the Court for quashing the closure/stop use notice dated 3rd May 2019 requiring the Applicant to close/stop using premises on LR NO. KISII MUNICIPALITY/BLOCK III/566
- 2.The Applicant to have the cost of the suit
- Jurisdiction invoked
- Supervisory/judicial review jurisdiction of the High Court; Article 47 of the Constitution of Kenya, 2010; Fair Administrative Action Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director of Public Health and Sanitation,Kisii County & 2 others [2021] KEELC 4471 (KLR)", Case Analysis (2021). Judicial Review Application (Notice of Motion) dated 9th May 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4471/eng@2021-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.