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ELCPartially AllowedNot stated in the judgment (substantive Notice of Motion dated 20th November 2023)· [2024] KEELC 3734 (KLR)

Gatabaki & 2 others (Suing as the Administrators of the Estate of the Late Dr. Samuel Mundati Gatabaki) v Director Planning Compliance & Enforcement, Nairobi City County Government (Environment and Land Judicial Review Case 3 of 2023) [2024] KEELC 3734 (KLR)

Environment and Land Court
6 May 2024
7,297 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Ex-parte Applicant, claiming to be the lawful proprietor of L.R No. 5980/1 on Kiambu Road, Nairobi, obtained leave in November 2023 to institute judicial review proceedings challenging an Enforcement Notice dated 16th October 2023 issued by the Director, Planning, Compliance and Enforcement, Nairobi City Council, which directed removal of structures including a petrol station and vacation of the land with immediate effect. The substantive Notice of Motion sought certiorari, prohibition and mandamus. The Respondent filed a preliminary objection contending that the applicant ought first to have appealed to the County Physical and Land Use Planning Liaison Committee under Section 72(3) of the Physical and Land Use Planning Act, 2019, that the proceedings were premature, misconceived and an abuse of process, and that the applicant held no lawful rights over the suit property. The court framed three issues: jurisdiction, sufficiency of the material, and reliefs. It held that the existence of an alternative statutory forum only postpones, and does not oust, the court's jurisdiction, and that exceptional circumstances - the notice's zero-day appeal window, threatened eviction, and breach of Articles 47 and 48 - justified direct access, applying the Supreme Court's decision in Nicholus. On the merits, the notice was found ultra vires, illegal, irrational and procedurally improper for failing to afford reasonable notice, a hearing or access to a forum, and for seeking eviction without compliance with Section 152 of the Land Act. The preliminary objection was dismissed; certiorari quashed the Enforcement Notice and prohibition issued against demolition and eviction; mandamus was refused as superfluous and academic. Costs were awarded to the Ex-parte Applicant.

Key legal issues

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01

Whether the ELC had jurisdiction despite the alternative remedy of appeal to the County Physical and Planning Liaison Committee under Section 72(3) of the Physical and Land Use Planning Act, 2019

Holding

The court has jurisdiction; the alternative mechanism postpones rather than ousts jurisdiction, and exceptional circumstances (zero days to appeal, threatened eviction, breach of Articles 47 and 48) justified direct access to the court.

Reasoning

The court held the doctrine of exhaustion is sound but only defers, not removes, the court's jurisdiction. The Enforcement Notice gave zero days to lodge an appeal and demanded immediate vacation, breaching fair administrative action and access to justice. The Committee, not being a court, could not issue injunctions or conservatory orders, and the claims engaged fundamental rights which only a court can vindicate, following the Supreme Court in Nicholus.

p. 7
02

Whether the Enforcement Notice was tainted with illegality, irrationality and procedural impropriety warranting judicial review

Holding

Yes; the notice was ultra vires, illegal, irrational and procedurally improper, and a candidate for quashing.

Reasoning

The notice gave no reasonable time to remove what were permanent developments including an operational petrol station, afforded no avenue to challenge it before any forum, and sought eviction for which the Respondent lacks mandate; evictions must comply with Section 152 of the Land Act, 2012. These failures breached natural justice and Articles 10, 27, 47, 48 and 50 of the Constitution.

p. 12
03

Which reliefs should issue

Holding

Certiorari and prohibition issued; mandamus refused as superfluous and academic.

Reasoning

Having found the notice ultra vires, certiorari lay to quash it and prohibition to prevent re-issuance or enforcement. Mandamus was unnecessary because quashing and prohibition fully vindicated the applicants, and compliance with the law is an obligation on all state organs which courts do not enforce by orders issued in vanity.

p. 13

Legal principles established

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  • The existence of an alternative statutory dispute resolution mechanism does not deprive the court of jurisdiction; it only postpones invocation of the court's jurisdiction, making the court a port of last resort.
  • A party may bypass an alternative forum where fundamental rights and freedoms are primarily at stake, provided the constitutional violations are not mere bootstraps.
  • An administrative decision requiring demolition of permanent developments must be preceded by due process, including reasonable notice and an opportunity to be heard.

Court orders

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  1. 1.An order in the nature of Certiorari issued to remove into the court and quash the decision of the Director Planning, Compliance and Enforcement, Nairobi City Council to forcefully remove the Ex-parte Applicants from L.R No. 5980/1, Kiambu Road, Nairobi and demolish structures thereon
  2. 2.The impugned Enforcement Notice dated 16th October 2023 quashed
  3. 3.An order in the nature of Prohibition prohibiting the Respondent from proceeding with forceful demolitions of structures on the suit property and evictions of the Applicants from L.R No. 5980/1
  4. 4.The Preliminary Objection dated 16th November 2023 dismissed with costs to the Ex-parte Applicants
  5. 5.Costs of the substantive Notice of Motion to be borne by the Respondent
  6. 6.Any other order not expressly granted declined

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 19(2), 22, 23(3), 27, 47, 48, 50, 70, 162(2)(b)
  • Environment and Land Court ActSection 13(2)
  • Physical and Land Use Planning Act, 2019Sections 72, 72(3)
  • Fair Administrative Action ActSections 9(2), 9(4)
  • The Land Act, 2012 [2016]Section 152
  • Environment Management and Co-ordination Act (EMCA)General reference
  • Energy ActGeneral reference

Cases cited (24)

  • Dominic G Nganga & another vs Director General, National Environment Management Authority & 4 Others
    [2020] eKLR
  • John Kabukuru Kibicho & Another vs County Government of Nakuru & 2 Others
    [2016] eKLR
  • Depar Ltd vs County Executive Committee Member for Lands, Housing, Physical Plain, Housing
    [2021] eKLR
  • Republic vs Kombo & 3 Others Ex-party Applicant
    [2008] 3 KLR 478
  • Agatha Geruto Kimaswayi v Attorney General and 3 Others
  • Taib Investment Ltd vs Fahim Salim Saaid & 5 Others
    [2016] eKLR
  • Municipal Council of Mombasa vs Republic, Ex-party Umoja Consultant Ltd
    [2007] eKLR
  • Pastoli vs Kabale District Local Government Council & Others
    [2008] 2 EA
  • Republic vs Kenya National Examination Council ex-party Geofirey Gathenji & Others
    [1996] eKLR; Civil Appeal No. 266 of 1996
  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & Others
    [2012] eKLR
  • County Government of Turkana vs National Land Commission & Another
    [2019] eKLR
  • Secretary, County Public Service Board & Another vs Hulbhai Gedi Abdille
    [2017] eKLR
  • Alice Anyanzua vs Kwhisero Land Dispute Tribunal & 2 Others
    [2018] eKLR
  • Republic vs Chief Magistrate, Milimani Commercial Court and 2 Others; Ex-parte Fredrick Bett
    [2022] eKLR
  • Republic vs NEMA Ex-parte Sound Equipment Ltd
    [2011] eKLR
  • Geofirey Gathenji & Others vs Stanley Munga Henry & Others
    [2015] eKLR
  • Bethwel Allon Omondi Okal vs Telcom Kenya Ltd
    [2017] eKLR
  • Geofirey Muthinja & another v Samuel Muguna Henry & 1756 others
    [2015] eKLR
  • William Odhiambo Ramogi & 2 others -v- Attorney General & 6 Others
    Mombasa High Court Petition No.159 of 2018 [2020] eKLR
  • Nicholus v Attorney General & 7 others; National Environmental Complaints Committee & 5 others (Interested Parties) (Petition E007 of 2023)
    [2023] KESC 113 (KLR) (28 December 2023)
  • Kenya Revenue Authority & 2 others vs Darasa Investments Ltd
    [2018] eKLR
  • Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 Others
    [2017] eKLR
  • Kenya Revenue Authority & 5 others v Keroche Industries Limited
    CA No 2 of 2008
  • The Speaker, Kisumu County Assembly & Others vs The Clerk, Kisumu County Assembly Service Board & Others
    [2015] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution 2010 as read with Section 13(2) of the Environment and Land Court Act, 2011

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, "Gatabaki & 2 others (Suing as the Administrators of the Estate of the Late Dr. Samuel Mundati Gatabaki) v Director Planning Compliance & Enforcement, Nairobi City County Government (Environment and Land Judicial Review Case 3 of 2023) [2024] KEELC 3734 (KLR)", Case Analysis (2024). Not stated in the judgment (substantive Notice of Motion dated 20th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3734/eng@2024-05-06

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