Republic v Nairobi Physical and Land Use Planning Liaison Committee; Director General, Nairobi Metropolitan, Services & 2 others (Interested Parties); Kimathi Mathu, Chairman, Atul Shah, Vice Chairperson and Chris Ndegwa Secretary All Jointly Suing as and on behalf of Kyuna Neighbours Association (Exparte) (Environment and Land Judicial Review Case E008 of 2022) [2023] KEELC 485 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that residents must be heard before planning decisions affecting them are made, sending the Kyuna townhouses appeal back for a proper hearing.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the court to hear the judicial review suit notwithstanding unexhausted statutory mechanisms
The court had jurisdiction because both the 1st Interested Party and the Respondent had failed to observe natural justice, triggering the court's supervisory jurisdiction
Although Section 9(2) of the Fair Administrative Action Act ordinarily requires exhaustion of internal mechanisms, the court found that the bodies entrusted to resolve the dispute acted in disregard of natural justice under Article 47 and Section 4 of the Act. Since neither the enforcement notice nor the appeal decision was procedurally sound, the court invoked its supervisory jurisdiction, confining itself to the decision-making process and not the merits.
Whether the Respondent had mandate to hear the appeal against the enforcement notice
The Respondent, as the County Physical and Land Use Planning Liaison Committee, had the statutory mandate to hear the appeal
Under Section 72(3) of PLUPA a person aggrieved by an enforcement notice may appeal to the County Physical and Land Use Planning Liaison Committee within fourteen days, and under Section 78(d) the Committee hears appeals with respect to enforcement notices. The court therefore rejected the contention that the Respondent had usurped the powers of the 1st Interested Party.
Whether the Exparte Applicants were deprived of their right to be heard
Yes; they were never notified of the appeal nor given an opportunity to be heard despite triggering the enforcement notice
The Applicants had lodged the complaint that led to the enforcement notice, yet were given no notice of the appeal or of the decision of 6.4.2022. Applying the principle of natural justice from Onyango Oloo v Attorney General as cited in Republic v Director of Physical Planning Ex-Parte Globe Developers Limited, the court concluded the decision was tainted with procedural impropriety.
Appropriate relief where both the original administrative decision and the appeal decision were procedurally flawed
The appeal was remitted to the Respondent for a lawful hearing and determination within 30 days rather than outright quashing
The court found the Respondent's decision irrational and procedurally improper, but noted that the underlying enforcement notice was equally flawed - two wrongs do not make a right. Following Republic v Kenya Revenue Authority Ex Parte Style Industries Limited on remitting cases, the court opted for remittal as the most efficacious remedy.
Legal principles established
#- An administrative body must accord a hearing to parties whose rights are affected; a decision made without such hearing is procedurally improper
- Judicial review is concerned with the decision-making process, not the merits of the decision
Court orders
#- 1.The appeal in Appeal No. NCCG/NMS/PLUPLC/0050 of 2022 is remitted back to the Respondent for hearing and determination according to the law
- 2.The hearing and determination before the Respondent is to be carried out within 30 days
- 3.Each party to bear their own costs of the suit
- Jurisdiction invoked
- Supervisory jurisdiction in judicial review under the Fair Administrative Action Act, Section 9(1) (High Court or subordinate court with original jurisdiction under Article 22(3) of the Constitution); Physical and Land Use Planning Act, 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Nairobi Physical and Land Use Planning Liaison Committee; Director General, Nairobi Metropolitan, Services & 2 others (Interested Parties); Kimathi Mathu, Chairman, Atul Shah, Vice Chairperson and Chris Ndegwa Secretary All Jointly Suing as and on behalf of Kyuna Neighbours Association (Exparte) (Environment and Land Judicial Review Case E008 of 2022) [2023] KEELC 485 (KLR)", Case Analysis (2023). Judicial Review Motion dated 1.7.2022 (Exparte Applicant, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/485/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.