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ELCPartially AllowedEnvironment & Land Petition 49 of 2018· [2023] KEELC 20465 (KLR)

Shree Visa Oshwal Community Nairobi Registered Trustees v Nairobi City County & 2 others

Environment and Land Court of Kenya
5 October 2023
14,575 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~58 min to read original · ~4 min brief

The bottom line

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Nairobi's Environment and Land Court stopped the demolition of the Oshwal Religious Centre, ruling the county violated the community's right to be heard before acting.

What this practically means

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Executive summary

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The Petitioner, registered trustees of the Oshwal Religious Centre on LR. No.1870/1/119 Ring Road Nairobi, challenged an Enforcement Notice dated 11th July 2018 issued by Nairobi City County requiring it to stop alleged illegal occupation and remove structures on top of a river within seven days, and complained of a subsequent partial demolition of its perimeter wall on 11th August 2018. The Petitioner proved it acquired the land in 1985, that survey plans from 1921 onwards depicted a canalized stream or anti-malaria drain rather than a river, and that its development, including canalization, was approved by the then Nairobi City Council (plans DC 785 of 18th April 1997 and P.D.S 1185) with a certificate of occupation issued in 2007. The Respondents contended the Petitioner should have appealed to the Physical Planning Liaison Committee, that the approvals were illegally obtained, and that public interest in riparian conservation prevailed. The court framed four issues: propriety of the petition, legality of the canalization and development, infringement of constitutional rights, and costs. It held the statutory appeal was futile because demolition was driven by a presidential directive to a multi-agency team and the Liaison Committee could not award damages; that the Respondents failed to plead and prove the alleged illegality of the approvals to the required standard; and that issuing the notice without a hearing and with an unreasonably short notice period violated Articles 47 and 40. The petition was allowed: conservatory and declaratory orders issued, certiorari quashed the Enforcement Notice, and costs were awarded to the Petitioner, with the 2nd Respondent exempted from paying costs.

Key legal issues

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01

Whether the petition was properly before the court despite failure to appeal to the Physical Planning Liaison Committee

Holding

The petition was properly before the court; the exceptional circumstances of a presidential directive to a multi-agency demolition team and the Liaison Committee's lack of power to award damages made the statutory appeal futile

Reasoning

The court accepted that sections 13 and 38 of the Physical Planning Act provide an appeal route, but found that the demolition directive emanated from the National Government via presidential directive, so a Liaison Committee appeal could not have prevented demolition. Further, the repealed Act gave the Committee no power to award recompense, so the remedy was neither efficacious nor adequate.

p. 17
02

Whether the Petitioner's canalization and development were illegal

Holding

The development was not shown to be illegal; the approvals of 1997 and the certificate of occupation stood, and the Respondents failed to plead and prove the alleged illegality or fraud

Reasoning

Survey plans from 1921 onwards showed a canalized stream/anti-malaria drain, not a river. The Petitioner produced approved plans (DC 785 of 18.4.1997), a certificate of occupation, and uncontradicted evidence. The Respondents merely asserted the approvals were illegal without particulars or evidence, failing the required standard of proof for fraud/illegality.

p. 22
03

Whether the Petitioner's constitutional rights were infringed

Holding

Yes - rights to fair administrative action under Article 47 and to property under Article 40 were violated by the notice issued without a hearing and the partial demolition

Reasoning

The Petitioner was never summoned or heard before the Enforcement Notice issued; the seven-day notice was unreasonable; a bulldozer partially demolished the perimeter wall. Rescinding approvals without hearing contravened Article 47 and Article 40 and section 25 of the Land Registration Act. The Petitioner met the Anarita Karimi Njeru precision threshold.

p. 21

Legal principles established

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  • A public authority that has granted development approvals cannot rescind them as illegal without notice and a hearing; doing so violates fair administrative action and property rights
  • A party alleging fraud or illegality of approvals must specifically plead, particularize and prove it to a standard above balance of probabilities but below beyond reasonable doubt
  • Exhaustion of statutory remedies is excused where the statutory appeal would be futile, such as where demolition is directed by a presidential directive through a multi-agency team beyond the appeal body's control, and where the appeal body lacks power to award damages
  • A seven-day enforcement notice to demolish massive, long-completed structures does not meet the reasonableness threshold of Article 47 and denies fair hearing

Court orders

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  1. 1.Conservatory and declaratory orders restraining the 1st and 2nd Respondents and any other public officers acting on their instructions from entering, breaking, demolishing, destroying, evicting, defacing, flattening or in any way interfering with the Petitioner's Oshwal Religious Centre on LR. No.1870/1/119 Ring Road Nairobi
  2. 2.An order of Certiorari quashing the 1st Respondent's Enforcement Notice dated 11th July 2018
  3. 3.A declaration that the Enforcement Notice dated 11th July 2018 violated the rights of the Petitioner and its members and that the Respondents' actions and threatened actions are unconstitutional, invalid and an abuse of mandate, power and due process
  4. 4.A declaration that the threatened demolition of the whole or part of the Oshwal Religious Centre constitutes a violation of the Petitioner's constitutional rights to use and occupation of property and freedom from arbitrary loss of property or peaceful occupation
  5. 5.A declaration that the threatened demolition pursuant to the Enforcement Notice constitutes a violation of the Petitioner's constitutional rights to fair administrative action and fair hearing
  6. 6.Costs of the Petition awarded to the Petitioner

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 40, 47, 60, 62(1)(i), 69, 174
  • Physical Planning Act Cap 286 (repealed)Sections 7-10, 13, 29, 30, 35, 38
  • Fair Administrative Action Act, 2015Sections 4, 7, 9(2)
  • Environmental Management and Co-ordination Act, 1999Section 58
  • Land ActSection 2, 12(2)(c)
  • Land Registration ActSections 24, 25
  • Water Act (No. 43 of 2016)Section 2
  • Evidence ActSections 109, 112
  • Urban Areas and Cities Act No. 13 of 2011general
  • Physical Planning (Subdivision) Regulations, 1998Regulation 15(c)
  • Survey Regulations of 1994Regulations 40, 88, 111
  • Environmental Management and Co-ordination (Water Quality) Regulations, 2006Rule 6(c)
  • Environmental Management and Co-ordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations 2009definitions of high and low watermark
  • Water Resources Authority Rules, Schedule 7 of 2017general
  • Sessional Paper No. 17 of 2017 on the National Land Use PolicyChapters 3(3.16(ii)) and 4(4.66)
  • County Government of Nairobi by-lawsgeneral

Cases cited (35)

  • Gitirau Peter Munya vs Dickson Mwenda Kithinji & 2 others
    [2014] eKLR

    Standards for constitutional petitions (cited by 3rd Respondent)

  • Republic vs Kenya Revenue Authority Ex parte KSC International Limited (In Receivership)
    [2016] eKLR

    Exhaustion of internal remedies (cited by Petitioner)

  • William Odhiambo Ramogi & 3 others vs Attorney General & 4 Others and Muslims for Human Rights & 2 Others (Interested Parties)
    [2020] eKLR

    Exceptions to exhaustion doctrine (cited by Petitioner)

  • Whitehorse Investments Ltd vs Nairobi City County
    [2019] eKLR

    Exceptional circumstances for bypassing statutory appeal; relied on by both parties

  • Japheth Nzila Muangi vs Minister for Lands and Environment of County Government of Mombasa & Another
    [2017] eKLR

    Cited by Petitioner on environmental evidence

  • Serah Mweru Muhu vs Commissioner of Lands & 2 Others
    [2014] eKLR

    Legitimate expectation (cited by Petitioner)

  • Anthony Miano & others v Attorney General & others
    [2021] eKLR

    Exhaustion doctrine (cited by 1st Respondent)

  • R vs Independent Electoral and Boundaries Commission (IEBC) Ex Parte National Super Alliance (NASA) Kenya and 6 others
    [2017] eKLR

    Exhaustion doctrine lineage (quoted within Anthony Miano)

  • Speaker of National Assembly v Karume
    [1992] KLR 21

    Strict adherence to special procedures for redress

  • KKB v SCM & 5 others
    (Constitutional Petition 014 of 2020) [2022] KEHC 289 (KLR)

    Principle of constitutional avoidance (cited by 1st Respondent)

  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR

    Constitutional avoidance (cited by 1st Respondent)

  • Republic v Kenya Revenue Authority; Proto Energy Limited (Exparte)
    (Judicial Review Application E023 of 2021) [2022] KEHC 5 (KLR)

    Legitimate expectation cannot override statute (cited by 1st Respondent)

  • Aloys Mataya Moseti v National Environment Management Authority & Another
    [2020] eKLR

    Environmental conservation duty (cited by 1st Respondent)

  • Michael Mwaura Njoroge v Peter Kamau Munene; Beatrice Kori (Interested Party)
    [2019] eKLR

    Riparian/environmental protection (cited by 1st Respondent)

  • Abdille Abdiaziz Sabriye vs Nairobi City County
    (2021) eKLR

    Enforcement notices may issue after approvals where conditions breached (cited by 1st Respondent)

  • Republic v Benjamin Jomo Washiali, Majority Chief Whip, National Assembly & 4 others Ex-parte Alfred Kiptoo Keter & 3 others
    [2018] eKLR

    Statutory remedies first (cited by 2nd Respondent)

  • Mutanga Ten & Coffee Company Limited v Shikara Limited & Another
    (2015) eKLR

    Exhaustion doctrine (cited by 2nd Respondent)

  • Speaker of National Assembly vs Njenga Karume
    [2008] 1 KLR 425

    Exhaustion doctrine (cited by 2nd Respondent)

  • Joseph Owino and Another Vs NEMA & Africa Plysack Ltd
    Busia Petition No. 1 of 2014 [2014] eKLR

    Constitutional redress is in addition, not a substitute, to other remedies

  • Benson Ambuti Adega & 2 Others v Klboa Distillers Limited & 5 Others
    [2020] eKLR

    Judicial abstention where issues fall to tribunals (cited by 2nd Respondent)

  • International Centre for Policy & Conflict & 5 Others Vs Attorney General & 4 Others
    [2013] eKLR

    Mere citation of Constitution does not raise constitutional issue (cited by 2nd Respondent)

  • Re Application by Bahadur
    [1986] LRC (Const)

    Ordinary remedies must be pursued in ordinary manner (cited by 2nd Respondent)

  • Milimani Splendor Management Limited v National Environment Management Authority & 4 others
    [2019] eKLR

    Legislation on riparian reserves, quoted extensively by the court

  • Anne Wambui Ndiritu -v- Joseph Kiprono Ropkoi & Anor
    Civil Appeal No. 345 of 2000, [2005] 1 EA 334

    Legal and evidentiary burden of proof

  • Jyoti Hardware Limited v National Environment Management Authority
    [2021] eKLR

    Purpose and legality of canalization

  • Urmila w/o Mahendra Shah v Barclays Bank International Ltd & another
    [1979] eKLR

    Onus to prove fraud lies on the party alleging it

  • Vijay Morjaria v Nansingh Madhusingh Darbar & another
    [2000] eKLR

    Fraud must be specifically pleaded and distinctly proved

  • Central Bank of Kenya Limited v Trust Bank Limited & 4 Others
    [1996] eKLR

    Standard of proof for fraud - above balance of probabilities but not beyond reasonable doubt

  • C N M v W M G
    [2018] eKLR

    What constitutes a constitutional question

  • Fredericks & Others vs MEC for Education and Training, Eastern Cape & Others
    (2002) 23 ILJ 81(CC)

    Definition of constitutional matters

  • S vs Boesak
    (2001)(1)SA 912(CC)

    Constitutional matters gleaned from the Constitution itself

  • Onyango Oloo vs Attorney General
    (1986-1989) EA 456

    Denial of right to be heard renders decision null and void ab initio

  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR

    Standard of proof and precision in constitutional petitions (Anarita Karimi Njeru rule)

  • Thorp v Holdsworth
    (1876) 3 Ch. D. 637

    Object of pleadings to define issues

  • R v Governor of Frankland Prison ex p Russell
    [2000] 1 W.L.R 2027

    Statutory powers presumed subject to fundamental rights

Jurisdiction invoked
Article 165(3) of the Constitution - enforcement of Bill of Rights before the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shree Visa Oshwal Community Nairobi Registered Trustees v Nairobi City County & 2 others", Case Analysis (2023). Environment & Land Petition 49 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20465/eng@2023-10-05

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