Ustawi Limited v Municipal Manager, Kapsabet Municipality & 4 others (Environment and Land Judicial Review Case E001 of 2023) [2024] KEELC 1453 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Competence of prayers not covered by the leave granted
Prayers (a), (b) and (c) (declaratory orders and prohibition not premised on leave) were struck out as incompetent
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.
Whether the Court had jurisdiction in light of the internal dispute resolution mechanisms
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
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.
Whether merit review was available in these proceedings
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
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.
Whether the jurisdiction issue was res judicata following the dismissal of the preliminary objection
No; the preliminary objection was dismissed because facts required ascertainment, so the jurisdiction issue was not heard and determined on the merits
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.
Legal principles established
#- 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
#- 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.The judicial review application is struck out for want of jurisdiction arising from failure to exhaust the internal dispute resolution mechanism
- 3.The Respondents are awarded costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.