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ELCDismissedJudicial Review Application (Notice of Motion dated 19th January, 2024)· [2024] KEELC 4423 (KLR)

Republic v County Executive Committee Member Nakuru County, Department of Land, Physical Planning, Housing & Urban Development; Njoka & 3 others (Interested Parties); Njoka (Exparte) (Environment and Land Judicial Review Case 1 of 2024) [2024] KEELC 4423 (KLR)

High Court of Kenya
30 May 2024
4,123 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to force Nakuru County to act against an illegal builder because the county had already issued enforcement orders.

What this practically means

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Executive summary

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The Ex-parte Applicant, Elizabeth Wanjiku Njoka, sought an order of mandamus compelling the County Executive Committee Member for Nakuru County (Land, Physical Planning, Housing & Urban Development) to enforce sections 57 and 72 of the Physical and Land Use Planning Act, 2019 against the Interested Parties, who had allegedly constructed a house on Njoro/Ngata/Block 1/65 without development permission. She sought orders that an enforcement notice be issued requiring stoppage of construction, demolition within thirty days, and prosecution of the developer under section 57(2). The Respondent opposed, deposing that the application was premature and that it had not failed to discharge its statutory mandate; it had in fact issued a stay order on 27th November 2023 and an enforcement notice on 25th January 2024. The Interested Parties argued forum shopping, sub judice (citing parallel proceedings in Nakuru Succession Cause No 497 of 2013) and lack of jurisdiction, pointing to the County Physical and Land Use Planning Liaison Committee under section 78. The court, per A.O. Ombwayo J, framed a single issue: whether the Applicant was entitled to mandamus. Relying on the Gathenji Njoroge decision and Shah v Attorney-General (No 3), the court held that mandamus does not lie as of course and cannot compel immediate performance of a general statutory duty. Satisfied that the Respondent had performed its duty under section 72, the court dismissed the Notice of Motion dated 19th January 2024 with costs.

Key legal issues

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01

Whether the Ex-parte Applicant is entitled to an order of mandamus

Holding

The application was dismissed because the Respondent had already undertaken the enforcement process mandated by section 72 of the Physical and Land Use Planning Act, 2019

Reasoning

The court examined the Respondent's replying affidavit showing that a stay order was issued on 27th November 2023 and an enforcement notice on 25th January 2024 after the 1st Interested Party failed to comply. Since the Respondent had taken the statutory enforcement steps, there was no failure or neglect of duty to justify mandamus. Further, mandamus cannot command a duty be performed in a specific way where the statute leaves discretion as to the mode of performance.

p. 9
02

Scope and limits of the remedy of mandamus

Holding

Mandamus is a command of extensive remedial nature directed at performance of public duties, but it must command no more than the party is legally bound to perform and cannot dictate the manner of performing a discretionary duty

Reasoning

Relying on the Court of Appeal's decision in Kenya National Examinations Council v Republic ex parte Geoffrey Gathenji Njoroge quoting Halsbury's Laws of England, and on Shah v Attorney-General (No 3) quoting Prem's Law of Writs, the court held that courts proceed with extreme caution in granting mandamus against executive officers and it does not lie as a matter of course.

p. 7

Legal principles established

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  • Mandamus will not issue against a public authority that is already discharging the statutory duty sought to be enforced, particularly where the statute imposes the duty without prescribing timelines

Court orders

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  1. 1.The Notice of Motion application dated 19th January, 2024 is dismissed with costs
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act, Cap 26, and Order 53 of the Civil Procedure Rules

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 Executive Committee Member Nakuru County, Department of Land, Physical Planning, Housing & Urban Development; Njoka & 3 others (Interested Parties); Njoka (Exparte) (Environment and Land Judicial Review Case 1 of 2024) [2024] KEELC 4423 (KLR)", Case Analysis (2024). Judicial Review Application (Notice of Motion dated 19th January, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4423/eng@2024-05-30

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