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ELCStruck OutELCLJR E002/2023 (Judicial Review)· [2024] KEELC 1453 (KLR)

Ustawi Limited v Municipal Manager, Kapsabet Municipality & 4 others (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 1453 (KLR)

Environment and Land Court
14 March 2024
6,392 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A landowner's judicial review case against Nandi County was struck out because it skipped internal appeal steps and added reliefs beyond the court's original permission.

What this practically means

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Executive summary

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Ustawi Limited, the registered owner of Nandi/Kapsabet/Municipality/417 measuring 1.519Ha, obtained leave on 11th October 2023 to commence judicial review against the County Government of Nandi and associated officers after the 2nd Respondent declined its application for a fencing permit and after a development plan (REF KAP/126/2023/04) proposed to plan the parcel into Government Low Cost Housing. In its substantive motion dated 18th October 2023 it sought declaratory orders of ownership and invalidity of the development plan, orders of prohibition, an order of mandamus compelling issuance of a fencing permit, and costs. The Respondents opposed, contending the land was public land reserved as a slaughter house and later for affordable housing, that the Applicant had failed to exhaust internal dispute mechanisms under Section 61(3) of the Physical and Land Use Planning Act and Section 9(2) of the Fair Administrative Action Act, and that declaratory orders were unavailable on judicial review. The court framed five issues. It held that prayers (a), (b) and (c) exceeded the leave granted and were incompetent and struck out, since a substantive motion under Order 53 is confined to the reliefs for which leave was obtained, and declaratory orders are not traditional judicial review reliefs; invoking Article 23 did not convert the application into a constitutional petition. On jurisdiction, the court found that Veronica Ndunge Musee had been validly delegated the functions of County Director of Physical Planning under Section 20 of PLUPA; a fencing permit is a development permission, so the Applicant had to appeal to the County Liaison Committee and thereafter to the ELC on appeal. The application, having been filed without exhausting that mechanism, was premature and was struck out with costs to the Respondents. The court noted a simmering ownership dispute that the parties should resolve through available means.

Key legal issues

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01

Competence of prayers not covered by the leave granted

Holding

Prayers (a), (b) and (c) (declaratory orders and prohibition not premised on leave) were struck out as incompetent

Reasoning

The court held that under Order 53 rules 1 and 3(1) the substantive motion is confined to the reliefs in respect of which leave was granted. The statutory statement sought only mandamus, prohibition and costs; the declaratory prayers were added later and were outside the leave. Declaratory orders are also not traditional judicial review reliefs, and merely invoking Article 23 does not convert a judicial review application into a constitutional petition.

p. 11
02

Whether the Court had jurisdiction in light of the internal dispute resolution mechanisms

Holding

The Court lacked jurisdiction because the Applicant did not exhaust the internal mechanism under Section 61(3) and (4) of PLUPA and Section 9(2) of the Fair Administrative Action Act

Reasoning

Veronica Ndunge Musee was validly redesignated and delegated to perform County Director of Physical Planning functions under Section 20 of PLUPA; a fencing permit is a development permission under Section 20(j). Any person aggrieved by such a decision had to appeal to the County Physical and Land Use Planning Liaison Committee and thereafter to the ELC on appeal. The application was therefore premature and struck out.

p. 13
03

Whether merit review was available in these proceedings

Holding

Merit review is now possible in judicial review, but only where the pleadings and procedure adopted at inception permit it; on the Order 53 procedure adopted, only traditional reliefs were available

Reasoning

Relying on the Dande decision and the Court of Appeal decisions in Lucy Njora and Super Nova Properties, the court acknowledged the expanded scope of judicial review including proportionality and merit review. However, where a party institutes under Order 53, the court is confined to the process and manner of decision-making; invoking Articles 23, 40 and 47 did not metamorphose the application into a constitutional petition.

p. 10
04

Whether the jurisdiction issue was res judicata following the dismissal of the preliminary objection

Holding

No; the preliminary objection was dismissed because facts required ascertainment, so the jurisdiction issue was not heard and determined on the merits

Reasoning

The ruling of 14th December 2023 dismissed the preliminary objection on the basis that it was not a pure point of law, since the court needed to ascertain facts including the exhaustion of internal mechanisms and the authority of the officer. As the issue was never determined on its merits, it could not be res judicata and the court proceeded to evaluate it.

p. 11

Legal principles established

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  • A substantive judicial review motion is limited to the reliefs for which leave was granted; prayers outside the leave are incompetent and a nullity
  • Where an Act provides an internal dispute resolution mechanism, that mechanism must be exhausted before the court is seised; failure to exhaust deprives the court of jurisdiction
  • Declaratory orders are not among the traditional reliefs available on a judicial review application under Order 53; a party who chooses the Order 53 route is limited to the traditional reliefs even where constitutional provisions are invoked

Court orders

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  1. 1.Prayers (a), (b) and (c) of the notice of motion are struck out as incompetent for not being premised on the leave initially granted
  2. 2.The judicial review application is struck out for want of jurisdiction arising from failure to exhaust the internal dispute resolution mechanism
  3. 3.The Respondents are awarded costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticles 6(2), 23, 40, 47; Fourth Schedule Part 1
  • Civil Procedure RulesOrder 4 Rule 1(4); Order 53 rules 1 and 3(1)
  • Fair Administrative Action ActSections 3, 4, 7, 8, 9, 11
  • Physical and Land Use Planning ActSections 20, 41(3) and (4), 61(3) and (4), 78
  • Government Proceedings ActSection 2(1)
  • Office of the Attorney General ActSection 5(1)(ii)
  • Office of the County Attorney ActSection 7
  • Public Service Commission ActSection 40
  • Land Registration ActSections 24 and 26
  • Repealed Constitution of KenyaSections 117 and 118
  • Trust Land Act

Cases cited (15)

  • Spire vs Land Registrar & 2 others
    2019 eKLR
  • David Gitau Thairu vs County Government of Machakos and 2 others
    (2020) eKLR
  • Republic vs Secretary of the Firearms Licensing Board Exparte Senator Johnstone Muthama
    (2018) KLR
  • Katiba Institute vs President of the Republic of Kenya
    (2021) KEHC 442 KLR
  • Municipal Council of Mombasa vs Republic and Umoja Consultants Ltd
    (2002) eKLR; Civil Appeal No. 185/2001
  • Republic vs Commissioner of Mines and another vs Exparte Basu Mining and Cortec Mining Company Ltd
  • Isiolo County Assembly Service Board vs Principal Secretary (Devolution)
    2016 (eKLR)
  • Geoffrey Muthinja Kabiru and 2 others vs Samuel Munga Henry and 1756 others
    (2015) eKLR
  • Republic vs Public Procurement Administrative Review Board and 2 others Exparte Sanitam Services E. A. Limited
  • Super Nova Properties & Another vs District Land Registrar Mombasa & Kenya Anti-Corruption and 2 others
  • Judicial Service Commission & Another vs Lucy Muthoni Njora
  • Dande and 3 others vs Inspector General, National Police Service and 5 others
  • County Government of Nyeri another vs Cecilia Wangechi Ndung'u
    2015 (eKLR)
  • Commissioner General Kenya Revenue Authority vs Silvano Onema Owaki t/a Marenga Filling Station
    2001 (eKLR)
  • Republic vs Chief Magistrates Court Nairobi Exparte Gethi Koinange and 11 others
    2017 (eKLR)
Jurisdiction invoked
Judicial review under Order 53 of the Civil Procedure Rules, with reference to Articles 23, 40 and 47 of the Constitution and the Fair Administrative Action 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, "Ustawi Limited v Municipal Manager, Kapsabet Municipality & 4 others (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 1453 (KLR)", Case Analysis (2024). ELCLJR E002/2023 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1453/eng@2024-03-14

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