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ELCDismissedJudicial Review Notice of Motion dated 26th June 2023 (Nakuru High Court)· [2024] KEELC 1324 (KLR)

Republic v Kenya National Highway Authority; Shayona Timber Limited (Exparte) (Judicial Review E005 of 2023) [2024] KEELC 1324 (KLR)

High Court of Kenya (Environment and Land Court)
14 March 2024
MNMwangi Njoroge
2,775 words in judgment
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The bottom line

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KeNHA cannot be forced by a court to approve a road access while it has not yet finished considering the application itself.

What this practically means

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Executive summary

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Shayona Timber Limited, the registered owner of LR No 9950/8 Nakuru East Municipality on which it built a commercial development, sought judicial review relief by way of a notice of motion dated 26 June 2023, principally an order of mandamus compelling KeNHA to issue approval for construction of an access to the suit land. The applicant applied online in December 2021 and claimed the application was approved by the Road Asset and Corridor Management Committee but the Deputy Director General refused to sign the approval, citing an ownership dispute between the parties which is pending before the Court of Appeal (Civil Appeal No 156 of 2020, against ELC Case No 149 of 2012 in which the applicant was declared owner). KeNHA filed a preliminary objection and replying affidavit, asserting statutory grounds for refusal and that ownership remained disputed pending appeal. The court framed two issues: whether mandamus should issue, and costs. Applying the principle that judicial review examines process rather than merits, the court held that KeNHA had not undertaken any merits assessment of the application; its letter of 22 May 2023 merely deferred consideration pending the ownership appeal, which was reasonable and consistent with natural justice. Mandamus cannot compel approval since the statute imposes only a duty to consider and decide on the merits. The preliminary objections were not reached. The motion was dismissed with each party bearing its own costs. Judgment delivered at Nakuru on 14 March 2024 by Mwangi Njoroge J.

Key legal issues

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01

Whether the respondent's deferral of the access approval pending determination of the ownership appeal was unreasonable or in breach of natural justice

Holding

No decision on the merits had been made; the respondent only deferred consideration pending the pending ownership appeal, so there was no process to subject to scrutiny

Reasoning

The court read the respondent's letter of 22/5/2023 as showing that no merits assessment had commenced. Ownership verification is only a threshold issue. The respondent gave reasons and did not leave the applicant in the dark, which was reasonable and consistent with natural justice. No ill will or malice was found given the pending Court of Appeal litigation.

p. 5
02

Whether mandamus could issue to compel approval of the access

Holding

No; the statute imposes only a duty to consider the application, not to approve it, and there was no evidence the application had been considered and rejected on unreasonable grounds

Reasoning

Mandamus issues only to compel performance of an existing legal duty. The respondent's statutory duty under the applicable roads legislation is to consider an access application and decide it on its merits. Since no merits assessment had been undertaken, the applicant failed to establish the legal foundation for mandamus and the motion was dismissed.

p. 5
03

Whether the preliminary objection on jurisdiction and procedure should be determined

Holding

Not considered, since there was no process to review

Reasoning

Having found that no decision-making process was embarked upon or completed, the court held it need not examine the respondent's objections, including the argument that the dispute should first have been submitted to the Cabinet Secretary and the objections under the Kenya Roads Act and the Fair Administrative Action Act.

p. 6

Legal principles established

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  • Judicial review concerns the decision-making process, not the merits of the decision
  • Mandamus lies only to compel performance of a duty imposed by law; a public body's statutory duty is to consider an application and decide it on its merits, not necessarily to approve it
  • Where a public body has not yet embarked on or completed any decision-making process, there is nothing that can be scrutinized for reasonableness or breach of natural justice

Court orders

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  1. 1.The judicial review application dated 26/6/2023 is dismissed
  2. 2.Each party shall bear its own costs of these proceedings

Authorities

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Legislation

  • Law Reform Act
  • Kenya Roads Act 2007s 56(1)(i)(b); s 57(ii)
  • Public Roads and Roads of Access Act Cap 399s 10(3); s 16
  • Fair Administrative Action Act No 4 of 2015s 9(2)

Cases cited (2)

  • Republic v Ministry of Roads & another Ex-Parte Vipingo Ridge Limited & another
    [2015] eKLR
  • Chief Constable of North Wales Police v. Evans
    (1982) 1 WLR 1155; [1982] 3 All ER 141
Jurisdiction invoked
Law Reform Act (judicial review); Fair Administrative Action Act raised on jurisdiction

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 Kenya National Highway Authority; Shayona Timber Limited (Exparte) (Judicial Review E005 of 2023) [2024] KEELC 1324 (KLR)", Case Analysis (2024). Judicial Review Notice of Motion dated 26th June 2023 (Nakuru High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1324/eng@2024-03-14

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