International Commission of Jurists (Kenya Chapter) v Nairobi City County & another; Nairobi City County Public Service Board (Interested Party) (Petition 36 of 2019) [2022] KEELC 3047 (KLR)
The bottom line
#Nairobi County's enforcement notice failed in court because the County had approved the building itself, and disputes must first go to the Physical Planning Liaison Committee.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is properly before the court given the statutory appeal mechanism under section 38 of the Physical Planning Act
The court assumed jurisdiction because, at the time of the enforcement notice, the relevant Liaison Committee was not demonstrably in place, leaving the petitioner without a forum.
The dispute should ordinarily have been adjudicated under section 38 read with section 13(1) of the Physical Planning Act. The petitioner argued the Nairobi Physical Planning Liaison Committee did not exist since 2010. The court found it had since been operationalized by Nairobi Metropolitan Services but without reliable public notification, so the court still granted prohibition tied to the Committee taking up the dispute.
Whether the petitioner is entitled to the orders sought
Yes in part — the Enforcement Notice infringed the petitioner's article 40 right to property and was issued in bad faith.
The 1st respondent had approved the petitioner's architectural plans in December 2017 and issued a certificate of occupation, meaning its officers had inspected the building and found it met all requirements. Serving an enforcement notice requiring the petitioner to stop occupation was therefore an infringement of the constitutional right to property and done in bad faith.
Costs
Each party to bear own costs, notwithstanding the petitioner's request that the respondents bear them.
Although the petitioner asked that costs be borne by the respondents and the petition succeeded on its principal prayer, the court in its conclusion ordered that each party bear its own costs, without giving reasons for departing from the ordinary costs-follow-the-event rule.
Legal principles established
#- Where the statutory appellate forum contemplated by the Physical Planning Act exists and is functioning, an aggrieved party must pursue the dispute before that Liaison Committee; prohibition operates only until the Committee hears and determines the dispute.
- An enforcement notice issued in bad faith, where the county itself approved the architectural plans and issued a certificate of occupation, infringes the right to property under article 40 of the Constitution.
Court orders
#- 1.An order of prohibition issued against the Respondents from enforcement and/or undertaking any further steps or actions in furtherance of the Enforcement Notice dated July 10, 2019, until such a time as the Nairobi Physical Planning Liaison Committee shall be set up and the general public made aware of its being set up and its discharge of its duties under the Act; and if it has been set up, the order of prohibition shall be in force until the dispute is heard and determined by the said Liaison Committee.
- 2.Each party to bear own costs.
- Jurisdiction invoked
- Article 40 of the Constitution (right to property) and section 38 as read with section 13(1) of the Physical Planning Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "International Commission of Jurists (Kenya Chapter) v Nairobi City County & another; Nairobi City County Public Service Board (Interested Party) (Petition 36 of 2019) [2022] KEELC 3047 (KLR)", Case Analysis (2022). Petition dated July 15, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3047/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.