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ELCDismissedJudicial Review Application (Notice of Motion dated 1st December, 2023)· [2024] KEELC 1494 (KLR)

Republic v County Director Land & Physical Planning Officer, Nakuru & 2 others; Wanjigi (Ex parte Applicant) (Environment and Land Case Judicial Review Application E009 of 2023) [2024] KEELC 1494 (KLR)

Environment and Land Court / High Court of Kenya at Nakuru
14 March 2024
3,988 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The High Court in Nakuru dismissed a family's bid to force county approval of a boundary wall, ruling judicial review challenges process, not decisions.

What this practically means

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Executive summary

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This was a judicial review application by John Mbugua Wanjigi, representative of the estate of Paul Wanjigi Njoroge (deceased), registered owner of Naivasha Town Block 2/859 through transmission. He sought mandamus compelling the County Government of Nakuru and its physical planning office to approve construction of a perimeter wall and to honour the decree in Nakuru ELC No. 258 of 2016; prohibitory orders restraining interference with his possession; and monetary compensation of Kshs. 1,551,600 for demolition of a partially built wall allegedly carried out by county askaris, purportedly instigated by the 3rd respondent, an MCA. The respondents denied involvement in the demolition, denied issuing verbal approvals, and explained that the technical committee deferred the development application pending submission of the Part Development Plan, which was never availed, and noted there were no records of the plot's original allocation. The court, applying Five Forty Aviation and Gathenji, held that judicial review examines process, not merits, and that the applicant had attacked the merits of the committee's decision. Mandamus lies only to enforce statutory public duty and could not enforce an ELC decree against non-parties; prohibition was unavailable because the committee acted within jurisdiction; and damages required factual inquiry beyond judicial review's restrictive remedies. The application was dismissed with costs. A.O. Ombwayo J delivered the judgment at Nakuru on 14th March 2024.

Key legal issues

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01

Whether mandamus could issue to compel approval of development application

Holding

It could not; the applicant attacked the merits of the technical committee's decision rather than the process.

Reasoning

The technical committee considered the application, found the Part Development Plan unavailed, and communicated this. Judicial review examines procedure, not merits. Since the applicant's grievance was with the substantive decision itself, mandamus to compel approval was unavailable in these proceedings.

p. 6
02

Whether mandamus could enforce the ELC decree in favour of the applicant's deceased father

Holding

No; mandamus compels statutory public duty and the respondents were not parties to the ELC suit, which also determined no ownership issue.

Reasoning

Mandamus requires a specific legal right and a public duty imposed by statute left unperformed. The Nakuru ELC 258 of 2016 decree granted eviction and injunction against other defendants; ownership was not determined and the county respondents were strangers to that suit.

p. 7
03

Whether prohibition could issue against the respondents

Holding

No; prohibition restrains bodies exceeding jurisdiction, but the committee was lawfully awaiting the Part Development Plan.

Reasoning

Prohibition forbids an inferior tribunal continuing proceedings in excess of jurisdiction or in breach of natural justice. Here the technical committee had not acted ultra vires; it simply could not proceed until the applicant supplied the Part Development Plan, which he never did.

p. 8
04

Whether the court could award monetary compensation for the demolition

Holding

No; damages require evidentiary inquiry beyond judicial review's restrictive remedies.

Reasoning

An award of compensation would require tendering documentary evidence to establish whether the wall was demolished, by whom, and the quantum. Those are factual determinations outside the supervisory jurisdiction of judicial review, whose remedies are limited in nature.

p. 8

Legal principles established

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  • A court sitting on judicial review is concerned with the decision-making process, not the merits of the decision
  • Mandamus compels performance of a public duty imposed by statute, not compliance with a court order against non-parties
  • Prohibition lies only against tribunals acting in excess of jurisdiction or in contravention of the law

Court orders

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  1. 1.The ex parte Applicant's application dated 1st December, 2023 is dismissed with costs
Jurisdiction invoked
Order 53 Rule 3 of the Civil Procedure Rules and Sections 8 and 9 of the Law Reform 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, "Republic v County Director Land & Physical Planning Officer, Nakuru & 2 others; Wanjigi (Ex parte Applicant) (Environment and Land Case Judicial Review Application E009 of 2023) [2024] KEELC 1494 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 1st December, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1494/eng@2024-03-14

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