Maina v Nairobi City County; Muthaiga North Resident's Association (Interested Party) (Judicial Review Application E001 of 2023) [2024] KEELC 4022 (KLR)
The bottom line
#Kiambu County wrongly cancelled a building permit without a hearing, and Kenya's Environment and Land Court quashed that cancellation.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction/exhaustion of alternative remedies
The Court has jurisdiction; Section 61(3) and (4) of the Physical and Land Use Planning Act does not oust it because the challenge concerns cancellation of an already granted permission without notice and a violation of Article 47 rights, and the alternative remedy was inadequate.
The Court accepted the Supreme Court's guidance in Nicholus v Attorney General that a nuanced approach applies: alternative remedies do not bar constitutional relief where inadequate. The Applicant pleaded violation of Article 47 fair administrative action; section 61(3) does not cover appeals against cancellation of a granted permission, and the statutory mechanism could not afford interim relief such as a stay. The application was therefore properly before the Court.
Right to fair administrative action
The Respondent violated the Applicant's right to fair administrative action by cancelling the development permission without prior notice or hearing.
Article 47 guarantees administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, and the right to written reasons. The permission was granted on 6th January 2023 and cancelled on 11th January 2023 without any prior notice or opportunity to be heard. No evidence to the contrary was adduced by the Respondent or Interested Party, so the right was violated.
Entitlement to certiorari
Certiorari issues to quash the cancellation letter since the decision was made in breach of natural justice.
Relying on Kenya National Examination Council v Republic Ex-Parte Geofirey Gathenji Njoroge, certiorari issues where a decision is made without or in excess of jurisdiction or where the rules of natural justice are not complied with. Having found a violation of the right to be heard, the Court held the Applicant made out a case for the order sought.
Legal principles established
#- Jurisdiction is the lifeline of a case; a court without jurisdiction must down its tools.
- The exhaustion doctrine applies only where the alternative forum is accessible, affordable, timely and effective.
- An alternative remedy does not necessarily bar constitutional relief where it is inadequate.
- Certiorari will issue where a decision is made without or in excess of jurisdiction or where rules of natural justice are not complied with.
- Cancelling a development permission without prior notice or hearing violates the right to fair administrative action under Article 47.
Court orders
#- 1.An order of certiorari to remove to the Court and quash the respondents' decision communicated vide letter Ref: UP/UD & P/Vol. 1/03/2023 dated 11th January 2023 cancelling and/or withdrawing the development permission granted to the Exparte Applicant
- 2.Each party to bear own costs of the application
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina v Nairobi City County; Muthaiga North Resident's Association (Interested Party) (Judicial Review Application E001 of 2023) [2024] KEELC 4022 (KLR)", Case Analysis (2024). Not stated in the judgment (Judicial Review Notice of Motion dated 16th January 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4022/eng@2024-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.