Republic v Officer of the County Executive Committee Member Trade, Tourism and Cooperative Development Kilifi & another; Muriungi t/a Mabeshte Sport Bar (Exparte) (Miscellaneous Civil Application 52 of 2021) [2023] KEELC 10 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a county's internal review committee cannot block a business owner from challenging a flawed licensing process in court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Honourable Court has the Jurisdiction to hear and determine the matter
- 2.Whether the Applicant ought to have exhausted alternative remedies through the Review Committee under Section 11 of the Kilifi County Trade Licence Act, 2016 before approaching the court
- 3.Whether the Preliminary Objection dated 10th December 2021 has merit
Key legal issues
#Whether the court has jurisdiction over a judicial review application where the Kilifi County Trade Licence Act, 2016 provides a Review Committee appeal mechanism
The court has jurisdiction; Section 11 of the Act does not oust judicial review jurisdiction over the decision-making process.
The court distinguished between an appeal on the merits, which belongs to the Review Committee under Section 11, and judicial review of the fairness of the process, which belongs to the court. The Applicant challenged the process leading to revocation of its licence, not the merits, so the statutory appeal route was not the appropriate avenue. The existence of an ADR mechanism in a statute does not automatically oust the court's supervisory jurisdiction.
Whether the Applicant was required to exhaust the Review Committee remedy before filing suit
The exhaustion requirement did not bar the suit because the Applicant impugned the very process and institution constituting the Review Committee's foundation.
Where a litigant alleges that the decision-making process was procedurally flawed and conducted in secrecy, requiring it to submit to the same institution would expect a different outcome from a flawed process. Judicial review of administrative action exists precisely for such challenges. The internal remedy is suited for merits appeals, not process challenges.
Whether the exemption under Section 9(4) of the Fair Administrative Action Act could be granted
No exemption was granted because no application for exemption was made; the argument was ignored.
Section 9(4) permits a court, in exceptional circumstances, to exempt a litigant from exhausting remedies in the interest of justice, but only on application by the applicant. Since no such application had been made, the court declined to consider that route, resting its decision instead on the character of the challenge as a process-based judicial review.
Legal principles established
#- Section 11 of the Kilifi County Trade Licence Act, 2016 does not oust the High Court's jurisdiction to hear a judicial review challenge to the process used to arrive at an administrative decision
- Judicial review is concerned with the decision-making process, not the merits of the decision; where the process itself is impugned, recourse to the internal review mechanism is not required
- The mere existence of an alternative dispute resolution mechanism in a statute does not automatically oust the court's judicial review jurisdiction
Court orders
#- 1.The Preliminary Objection dated 10th December 2021 is dismissed
- 2.Costs of the Preliminary Objection awarded to the Ex parte Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Judicial review jurisdiction under the Fair Administrative Action Act, 2015 (ss 7(2), 8 and 9(4)) over administrative action of the Kilifi County licensing authority
Relief refused
#Exemption from the obligation to exhaust remedies under Section 9(4) of the Fair Administrative Action Act
No such application for exemption had been made by the Applicant, so the court declined to entertain that line of argument
Costs
The Preliminary Objection is dismissed with costs to the Ex parte Applicant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I have considered the Preliminary Objection, the submissions by counsel and the relevant authorities and come to the conclusion that the court is clothed with the jurisdiction to hear and determine this matter. The upshot is that the Preliminary Objection is dismissed with costs to the Ex parte Applicant.
Section 11 of the Kilifi County Trade License Act 2016 does not oust the jurisdiction of the court to hear a judicial review on the process used to arrive at a decision that afiected the Applicant.
Judicial Review is not concerned with reviewing the merit or otherwise of a decision by a public entity, in respect of which the application for review is made, but the decision, making process itself.
the mere existence of provisions for alternative dispute resolution per se in a statute do not automatically and fully oust the jurisdiction of this court to handle a dispute once lodged before it by an applicant in the form of judicial review as in this case.
Issues in the judgment
#The case number of the judicial review application is not stated anywhere in the judgment provided
The judgment describes the impugned decision variously as a revocation and as a suspension of the licence without reconciling the two
Statute referred to inconsistently as 'Kilifi County Trade Licence Act, 2016' and 'Trade License Act, 201' in the submissions
The court cites Section 9(4) of the Fair Administrative Action Act but the quoted text appears to be as reproduced by counsel rather than from an independent reading
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Officer of the County Executive Committee Member Trade, Tourism and Cooperative Development Kilifi & another; Muriungi t/a Mabeshte Sport Bar (Exparte) (Miscellaneous Civil Application 52 of 2021) [2023] KEELC 10 (KLR)", Case Analysis (2023). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/10/eng@2023-01-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.