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ELCOtherJudicial Review Notice of Motion dated 1.7.2022· [2023] KEELC 361 (KLR)

Republic v Nairobi Physical and Land Use Planning Liaison Committee; Mathu, Chairman, Shah, Vice Chairperson and Ndegwa Secretary (All jointly suing as and on behalf of Kyuna Neighbours Association) (Exparte); Director General, Nairobi Metropolitan Services & 2 others (Interested Parties) (Environment and Land Judicial Review Case E008 of 2022) [2023] KEELC 361 (KLR)

Environment and Land Court
26 January 2023
3,106 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court found both county planning bodies denied residents a fair hearing, and ordered the dispute over Kyuna townhouses reopened with proper hearings within 30 days.

What this practically means

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Executive summary

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By a Notice of Motion dated 1.7.2022, a residents' association sought judicial review orders of certiorari and prohibition against a decision of the Respondent Committee dated 6.4.2022 in Appeal No. NCCG/NMS/PLUPLC/0050 of 2022, by which the Committee quashed an enforcement notice issued by Nairobi Metropolitan Services (NMS) and reinstated building plan approvals for 8 town houses on plots on Kyuna Road, Nairobi. The Applicant alleged the appeal was time-barred under Section 72(3) PLUPA, that it was denied a hearing, and that the Respondent usurped NMS's mandate. The 2nd and 3rd Interested Parties opposed, arguing non-exhaustion of statutory remedies under Section 9(2) and (4) FAA Act and Section 72(4) PLUPA, that their first appeal was filed within 14 days, and that the Respondent was not obliged to notify the Applicant. The Respondent did not file a response. The court framed four issues: jurisdiction, the Respondent's mandate, the right to be heard, and relief. It found it could exercise supervisory jurisdiction since both administrative bodies disregarded natural justice under Article 47 and Section 4 FAA Act; that the Respondent had statutory mandate to hear the appeal under Sections 72(3) and 78(d) PLUPA; and that the Applicants were deprived of their right to be heard. Finding both the enforcement notice process and the appeal process procedurally flawed - two wrongs cannot make a right - the court declined to simply quash, instead remitting the appeal back to the Respondent for hearing and determination according to law within 30 days, with each party bearing their own costs.

Key legal issues

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01

Whether the High Court/ELC had jurisdiction despite non-exhaustion of statutory remedies under Section 9(2) and (4) FAA Act and Section 72(4) PLUPA

Holding

The court found it had jurisdiction, invoking its supervisory jurisdiction because both the 1st Interested Party and the Respondent failed to follow the law in their decision-making processes.

Reasoning

Section 9(2) FAA Act bars review where remedies under other written law are not exhausted, and Section 9(4) allows exemption in exceptional circumstances. Section 72(4) PLUPA limits appeals to the committee's determination to matters of law. The court held these proceedings were judicial review, not an appeal, and that both administrative bodies disregarded rules of natural justice under Article 47 and Section 4 of the FAA Act, justifying the supervisory jurisdiction.

p. 6
02

Whether the Respondent had statutory mandate to hear the appeal against the enforcement notice

Holding

The Respondent had the statutory mandate to hear the appeal, and the time-bar objection was not made out on the facts.

Reasoning

Section 72(3) PLUPA provides for appeals to the County Physical and Land Use Planning Liaison Committee within fourteen days, and Section 78(d) assigns the committee the function to hear appeals on enforcement notices. The 2nd and 3rd Interested Parties demonstrated they filed a first appeal on 9.12.2021 within time; the Respondent did not appear to contest this account.

p. 6
03

Whether the Exparte Applicants were deprived of their right to be heard

Holding

The Applicants, who triggered the enforcement notice by their complaint, were never notified of the appeal or heard, contrary to Article 47 and natural justice.

Reasoning

The court found both bodies acted with disregard to natural justice: the enforcement notice was issued without hearing the developer, and the Respondent's decision of 6.4.2022 gave the Applicants a 'black out'. Relying on Onyango Oloo v Attorney General and Depar Limited, the court held that decision-makers affecting others must give an opportunity to be heard.

p. 7

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision; the court's role is supervisory
  • A public authority must act within the law and fairly; administrative action must not be taken capriciously, arbitrarily and without due process
  • Where an administrative body deciding an appeal fails to accord a party who triggered the process a hearing, the decision is tainted with procedural impropriety, but the remedy may be remittal rather than quashing where the decision below was likewise flawed

Court orders

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  1. 1.The appeal against the enforcement notice is remitted back to the Respondent for hearing and determination according to the law, to be carried out within 30 days

Authorities

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Legislation

  • Physical and Land Use Planning Act (PLUPA)Section 72(1), 72(3), 72(4), 78(d)
  • Fair Administrative Action ActSection 4, Section 9(1), 9(2), 9(4)
  • Constitution of KenyaArticle 22(3), Article 47, Fourth Schedule Part 2 Para 8 and 10

Cases cited (11)

  • Nairobi City County Government v Nairobi Metropolitan Services & 13 others
    [2020] EKLR
  • Republic v Kenya Revenue Authority Exparte Stanley Mombo Amuti
    [2018] eKLR
  • Aprim Consultants v Parliamentary Service Commission and Another
    Civil Appeal No. E039 of 2021 (COA)
  • R v PPARB and Another Exparte Selex Sistemi Integrati
    [2008] KLR 728
  • Republic v Kenya Revenue Authority Exparte Style Industries Limited
    [2019] eKLR
  • Issa Ahmed & 15 others v Mohamed Al-Sawae
    [2021] eKLR
  • Republic vs. National Environmental Management Authority Exparte Sound Equipment
    [2011] eKLR
  • Jamii Telecommunication Ltd v County Government of Uasin Gishu
    [2020] eKLR
  • Depar Limited v County Executive Committee Member for Lands, Physical Planning, Housing and Urbanization & another
    [2021] eKLR
  • Republic v Director of Physical Planning Ex-Parte Globe Developers Limited & 3 others
    [2017] eKLR
  • Onyango Oloo v Attorney General
    [1986-1989] EA 456
Jurisdiction invoked
Supervisory jurisdiction in judicial review over administrative action under Article 47 of the Constitution and the Fair Administrative Action Act; Article 22(3) of the Constitution referred to in Section 9(1) FAA 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, "Republic v Nairobi Physical and Land Use Planning Liaison Committee; Mathu, Chairman, Shah, Vice Chairperson and Ndegwa Secretary (All jointly suing as and on behalf of Kyuna Neighbours Association) (Exparte); Director General, Nairobi Metropolitan Services & 2 others (Interested Parties) (Environment and Land Judicial Review Case E008 of 2022) [2023] KEELC 361 (KLR)", Case Analysis (2023). Judicial Review Notice of Motion dated 1.7.2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/361/eng@2023-01-26

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