Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Judicial Review No. 7 of 2020· [2022] KEELC 2004 (KLR)

Republic v Narok County Government & 2 others Ex Parte Mara Ngenche Safari Camp [2022] KEELC 2004 (KLR)

Environment and Land Court
26 January 2022
4,090 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

A Kenyan court stopped Narok County from demolishing a Mara safari camp because the business was never given a fair hearing before the removal decision.

What this practically means

#

Executive summary

#
Mara Ngenche Safari Camp, a licensed tourism operator in the Maasai Mara Game Reserve, moved the Environment and Land Court at Narok by way of notice of motion dated 11th September 2020 seeking judicial review orders of certiorari, prohibition and mandamus following tweets by the Cabinet Secretary for Tourism and Wildlife and directives by the Narok County Governor for the removal of its camp, after a video circulated showing the applicant's staff diverting wildebeests from crossing the Mara River. The applicant contended that the decision to demolish or remove the camp was made without notice, consultation or a hearing, contrary to Article 50(1) of the Constitution and the Fair Administrative Action Act. The 1st respondent opposed, arguing the action was premature and speculative as only a fact-finding exercise had been initiated, that official government business is not conducted through tweets, and that public interest in conserving the Mara outweighed private interests. The court framed the single issue as whether the application met the threshold for judicial review orders. It held that judicial review concerns the decision-making process, not the merits, and found that the applicant was denied a hearing during the fact-finding exercise, rendering the respondents' actions unlawful, irrational, unreasonable and procedurally unfair. The court granted prohibition against demolition and certiorari quashing the 8th and 9th September 2020 decisions, but declined prayers 2, 3 and 5 (mandamus on the lease and social media-related orders) as delving into the merits. Each party was ordered to bear its own costs. The application partially succeeded.

Key legal issues

#
01

Whether the ex parte applicant was accorded procedural fairness

Holding

The respondents failed to accord the applicant a hearing during the fact-finding exercise; the resultant actions were unlawful, irrational, unreasonable and lacked procedural fairness

Reasoning

The court noted that the 1st respondent undertook a fact-finding exercise after a widely circulated video of wildebeests being diverted at the camp. Despite this exercise and the threatened demolition, the applicant was never summoned or heard. Natural justice precludes condemning a party unheard, and Section 4(3) of the Fair Administrative Action Act requires a fair hearing for persons likely to be adversely affected by a decision. The absence of a hearing rendered the process flawed.

p. 5
02

Whether blanket injunctive orders can issue in judicial review

Holding

Only prayers 1 and 4 (prohibition and certiorari) were grantable; prayers 2, 3 and 5 would require the court to delve into the merits, which is beyond judicial review

Reasoning

The court reiterated that judicial review examines the decision-making process, not the merits. Mandamus to enforce a lease and orders touching on social media communications would involve merits adjudication outside the supervisory jurisdiction. Hence only the prohibitory order against demolition and the certiorari quashing the 8th and 9th September 2020 decisions were granted.

p. 5

Legal principles established

#
  • A party likely to be adversely affected by an administrative decision must be accorded a hearing; failure to hear the affected party during a fact-finding exercise renders the resultant actions unlawful, irrational, unreasonable and procedurally unfair
  • Judicial review is concerned with the decision-making process and not the merits of the decision

Court orders

#
  1. 1.An order of prohibition directed to the 1st and 2nd respondents, their officers and any other authority acting on their instructions, prohibiting them from demolishing, removing and/or interfering with the quiet possession of the ex parte applicant
  2. 2.An order of certiorari to quash the discussions, decisions, directives and/or orders of 8th and 9th September, 2020 of the 1st and 2nd respondents to remove and/or demolish the ex parte applicant
  3. 3.Each party to bear their own costs

Authorities

#

Legislation

  • Constitution of KenyaArticles 165(6) & (7); Article 50(1)
  • Law Reform Act (Cap 26)Sections 8 and 9
  • Tourism Act No. 28 of 2011Part 3
  • Fair Administrative Action Act, 2015Sections 4(3)(a)-(g), 7 and 7(2)(a)(v)
  • Occupational Safety and Health Act, 2007not specified
  • Environmental Management and Coordination Act, Cap 387not specified
  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure Rules, 2010Order 53 Rules (1) and (2)
  • County Government Actnot specified

Cases cited (13)

  • Accounting Officer Kenya Ports Authority (ex parte) v Republic Procurement Administrative Review Board & 3 others (interested parties)
    [2019] eKLR
  • Onyango Oloo v Attorney General
    (1980-1989) EA 456
  • Pashito Holdings Ltd and Another v Paul Nderitu
    (1997) eKLR
  • Republic v Public Procurement Administrative Review Board; Shenzhen Insolvent Co. Ltd & Another (interested party) ex parte Kenya Power & Lighting Co. Ltd
    (2019) eKLR
  • Keroche Industries Ltd v Kenya Revenue Authority
    (2007) eKLR
  • Republic v Kenya Revenue Authority ex parte Cosmos Ltd
    (2016) eKLR
  • Republic v K.S Bunyasi, the Principal-Hill High School & 3 others Ex parte Awo
    (2019) eKLR
  • Judicial Service Commission v Mbalu Mutava & another
    (2015) eKLR
  • Ignatius Kabiru Mwariri & 14 others v City Council of Nairobi & another
    (2014) eKLR
  • Municipal Council of Mombasa v Republic & another
    (2002) eKLR
  • Peninah Nandako Kiliswa v Independent Electoral and Boundaries Commission & 2 others
    (2014) eKLR
  • Funzi Island Development Ltd & 2 others v County Council of Kwale & 2 others
    (2014) eKLR
  • Ransa Co. Ltd v Manca Francesco & 2 others
    (2015) eKLR
Jurisdiction invoked
Articles 165(6) & (7) of the Constitution of Kenya; Sections 8 and 9 of the Law Reform Act (Cap 26)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Republic v Narok County Government & 2 others Ex Parte Mara Ngenche Safari Camp [2022] KEELC 2004 (KLR)", Case Analysis (2022). ELC Judicial Review No. 7 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2004/eng@2022-01-26

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