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ELCDismissedJudicial Review proceedings; Notice of Motion dated 29th September, 2023 (ex parte Applicant's Notice of Motion dated 25th May, 2023)· [2024] KEELC 3561 (KLR)

Oyster Café Ltd v Nairobi City Council Government & another; Nairobi City County, Urban Planning & 2 others (Interested Parties); Kariuki & 6 others (Intended Interested Party) (Environment and Land Judicial Review Miscellaneous Application 1 of 2023) [2024] KEELC 3561 (KLR)

High Court of Kenya
11 April 2024
1,513 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that residents cannot join a judicial review case over a restaurant licence because judicial review examines government process, not private grievances.

What this practically means

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Executive summary

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This ruling by A. Omollo J of the High Court at Nairobi, delivered on 11th April 2024, determined a notice of motion dated 29th September 2023 filed by seven residents seeking to be enjoined as interested parties in judicial review proceedings commenced by the operator of Oyster Bay Restaurant against the Nairobi County Government and the Nairobi City County Alcoholic Control Board. The Intended Interested Parties, residing less than 20 metres from the establishment, sought joinder, leave to file submissions, transfer of the suit to the Environment and Land Court, an order for closure of the restaurant for non-compliance with environmental and noise control laws, and dismissal of the Applicant's own Notice of Motion dated 25th May 2023. The prayer for transfer had already been dealt with in a ruling of 23rd November 2023 by Chigiti (SC) J. The court, guided by the Court of Appeal's exposition in Municipal Council of Mombasa v Republic, held that judicial review is concerned with the decision-making process rather than the merits, and that the ex parte Applicant's challenge concerned only whether the Respondents acted within their powers and accorded fair administrative process. The residents' environmental rights grievances, though constitutionally cognisable under Article 42, fall outside the limited remedial scope of judicial review. The court declined joinder, held that the closure prayer did not lie for non-parties, and dismissed the motion with costs.

Key legal issues

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01

Joinder of interested parties in judicial review proceedings

Holding

The Intended Interested Parties are not necessary parties under Order 1 of the Civil Procedure Rules because the suit concerns the lawfulness of the Respondents' decision-making process, and no relief is sought against the Intended Parties

Reasoning

The court applied the Municipal Council of Mombasa principle that judicial review examines process, not merits. The ex parte Applicant's challenge concerned whether Respondents acted beyond their powers and afforded fair administrative process. The Intended Parties' environmental-rights grievances, though constitutionally protected, fall outside the limited remedial scope of judicial review and can be pursued elsewhere.

p. 4
02

Availability of closure orders against the Applicant's establishment

Holding

The prayer for closure could not be entertained because the applicants for it were not joined as parties

Reasoning

Having declined the joinder, the court held the intended parties could not seek affirmative relief such as closure of the establishment or dismissal of the pending application. The court did not engage with the merits of the environmental or licensing complaints, as these fall outside judicial review's province.

p. 4

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision itself
  • Judicial review proceedings are not a forum in which private citizens claiming environmental rights violations can ventilate their grievances

Court orders

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  1. 1.The Intended Interested Parties are declined joinder as interested parties
  2. 2.Prayer (e) seeking closure of the Applicant's establishment does not lie
  3. 3.The Intended Interested Parties are not entitled to dismissal of the application dated 25th May, 2023
  4. 4.The notice of motion dated 29th September, 2023 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10
  • Constitution of Kenya, 2010Articles 22, 23(1), 27(1), 42, 43, Fourth Schedule Part 2 Clause 3
  • Environmental Management and Coordination Act, 1999Not specified (EIA and noise control licensing requirements)

Cases cited (2)

  • Municipal Council of Mombasa v Republic & Umoja Consultants Ltd
    Nairobi C.A. No. 185 of 2002 (2002) eKLR
  • Kenya National Examination Council v Republic Ex Parte Geoffrey Gathenji Njoroge & 9 Others
    Civil Appeal No. 266 of 1996
Jurisdiction invoked
Judicial review jurisdiction; motions premised on Order 1 Rule 10 of the Civil Procedure Rules and Articles 22, 23(1), 27(1) and 42 of the Constitution

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, "Oyster Café Ltd v Nairobi City Council Government & another; Nairobi City County, Urban Planning & 2 others (Interested Parties); Kariuki & 6 others (Intended Interested Party) (Environment and Land Judicial Review Miscellaneous Application 1 of 2023) [2024] KEELC 3561 (KLR)", Case Analysis (2024). Judicial Review proceedings; Notice of Motion dated 29th September, 2023 (ex parte Applicant's Notice of Motion dated 25th May, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3561/eng@2024-04-11

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