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ELCStruck OutJudicial Review E022 of 2021· [2022] KEELC 14723 (KLR)

Nginyi v Alphope Holdings Limited & 4 others

Environment and Land Court at Nairobi
3 November 2022
MMM.D. Mwangi
5,675 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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A Nairobi landowner lost his challenge to a neighbour's building approval because he went to court before using the official complaint channel first.

What this practically means

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Executive summary

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The ex parte applicant, owner of LR No Nairobi/Block 139/706 bordering the 1st respondent's parcel LR No Nairobi/Block 139/705, sought judicial review orders of certiorari, prohibition and mandamus to quash the 2nd respondent's approval of a change of user from single dwelling to multi-dwelling units granted in September 2018, together with a permanent injunction and a declaration that Marurui Estate (Block 139) is designated for single dwelling units. He alleged no public notice or participation preceded the approval, that approvals had expired before construction began in March 2021, that no EIA preceded construction, and that the building violated lease conditions and the building code. All respondents opposed; the 1st respondent asserted full compliance including newspaper notice, structural plan approvals, a NEMA licence and an NCA compliance certificate; NEMA denied issuing a licence and stated it issued a stop order; NCA said it issued a compliance certificate after rectification. The 5th respondent raised a preliminary objection that the court lacked jurisdiction because section 78 of the Physical and Land Use Planning Act, 2019 provides a clear procedure before the County Physical and Land Use Planning Liaison Committee. The court upheld the objection, holding that section 9(2) of the Fair Administrative Action Act mandatorily requires exhaustion of internal and statutory remedies, that no exceptional circumstances were pleaded for exemption under section 9(4), and that the application was in substance an appeal on the merits. The application was struck out; because the matter was public interest litigation, each party was ordered to bear its own costs.

Key legal issues

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01

Whether the exhaustion doctrine barred the judicial review application

Holding

Yes - the applicant was required to first pursue the complaint and appeal mechanisms before the County Physical and Land Use Planning Liaison Committee under section 78 of the Physical and Land Use Planning Act, 2019

Reasoning

Section 9(2) of the Fair Administrative Action Act is mandatory: a court shall not review an administrative action unless internal mechanisms and all remedies under other written law are first exhausted. Section 78 of the Physical and Land Use Planning Act, 2019 confers on the County Liaison Committee power to hear complaints and appeals against planning authority decisions. No exceptional circumstances were pleaded and no application for exemption under section 9(4) was made.

p. 11
02

Whether the court had jurisdiction to entertain the matter

Holding

No - the preliminary objection was upheld and the application struck out

Reasoning

Relying on Supreme Court authority that jurisdiction flows from the Constitution or legislation and cannot be assumed, and that where a special procedure is prescribed it must be strictly followed, the court held it could not entertain the matter. Having found no jurisdiction, the court downed its tools per Owners of the Motor Vessel 'Lillian S'.

p. 11
03

The nature of judicial review versus appeal

Holding

Judicial review concerns the decision-making process, not the merits; the applicant's application was framed as an appeal from the administrative decision

Reasoning

Citing Municipal Council of Mombasa v Republic and Peter Kaluma's text, the court observed that judicial review is concerned with the legality of the process rather than the merits, and the applicant's pleadings amounted to an appeal against the administrative decision, which the court could not entertain in that form.

p. 11

Legal principles established

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  • A court shall not review an administrative action unless internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted, per section 9(2) of the Fair Administrative Action Act
  • Where a clear procedure for redress is prescribed by an Act of Parliament, that procedure should be strictly followed
  • A court without jurisdiction must down tools immediately

Court orders

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  1. 1.The preliminary objection by the 5th respondent is upheld
  2. 2.The application by the ex parte applicant is struck out
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 rule 3(1)
  • Law Reform Actsections 8 & 9
  • Constitution of Kenya, 2010Articles 22, 23, 42, 47, 69, 70, 159, 232(1)
  • Fair Administrative Action Actsections 7, 8, 9, 10, 11, 12
  • Physical Planning Act (repealed)sections 30(1), 32
  • Physical and Land Use Planning Act, 2019section 78
  • Environment Management and Coordination Actsection 58(1), 129
  • National Construction Authority Actsections 23(2), 31
  • National Construction Authority Regulations, 2014regulation 17
  • Land Act
  • Environment and Land Court Act

Cases cited (7)

  • Benson Ambuti Adega & 2 others v Kibos Distillers Ltd & 5 others
    (2020) eKLR

    Definition of jurisdiction and affirmation of the exhaustion doctrine

  • R v Karisa Chengo
    (2017) eKLR

    Definition of jurisdiction as the authority a court has to decide matters before it

  • Samuel Kamau Macharia & another v Kenya Commercial Bank Ltd & 2 others
    (2012) eKLR

    A court's jurisdiction flows from the Constitution or legislation and cannot be arrogated

  • Speaker of National Assembly v Karume
    (1992) KLR

    Where a clear procedure for redress is prescribed, it should be strictly followed

  • Geoffrey Muthinja Kabiru & 2 others v Samuel Munga Henry & 1756 others
    (2015) eKLR

    Exhaustion of alternative dispute resolution mechanisms before invoking court jurisdiction

  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    [2002] eKLR

    Judicial review concerns the decision-making process, not the merits

  • Owners of the Motor Vessel "Lillian S"
    (1989) KLR

    A court without jurisdiction must down tools at once

Jurisdiction invoked
Judicial review under Order 53 rule 3(1) of the Civil Procedure Rules and sections 8 & 9 of the Law Reform Act (cap 26); Articles 22, 23, 42, 47, 69, 70 and 232(1) of the Constitution; section 9 of the Fair Administrative Action Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nginyi v Alphope Holdings Limited & 4 others", Case Analysis (2022). Judicial Review E022 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14723/eng@2022-11-03

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