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)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#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
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.
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.
Whether the Enforcement Notice was tainted with illegality, irrationality and procedural impropriety warranting judicial review
Yes; the notice was ultra vires, illegal, irrational and procedurally improper, and a candidate for quashing.
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.
Which reliefs should issue
Certiorari and prohibition issued; mandamus refused as superfluous and academic.
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.
Legal principles established
#- 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
#- 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.The impugned Enforcement Notice dated 16th October 2023 quashed
- 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.The Preliminary Objection dated 16th November 2023 dismissed with costs to the Ex-parte Applicants
- 5.Costs of the substantive Notice of Motion to be borne by the Respondent
- 6.Any other order not expressly granted declined
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.