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ELCAllowedJudicial Review application, motion dated 11th August 2023· [2024] KEELC 6423 (KLR)

Republic v Nairobi City County Physical Land Use Planning Committee & 2 others; Dulu (Exparte) (Environment and Planning Judicial Review 1 of 2024) [2024] KEELC 6423 (KLR)

Environment and Land Court
26 September 2024
2,745 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered Nairobi's planning committee to accept a landowner's appeal against an enforcement notice, protecting property owners' right to be heard.

What this practically means

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Executive summary

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This is a first-instance judicial review judgment in which the ex-parte applicant, George Abaleka Dulu, sought an order of mandamus compelling the Nairobi County Physical and Land Use Planning Liaison Committee to accept, file, number and give directions for his appeal dated 20th July 2023 against an enforcement notice issued by the 2nd Respondent on 17th July 2023, together with a conservatory order staying enforcement of that notice. The applicant deposed that despite lodging appeal documents, the committee repeatedly refused to receive the appeal, citing lack of offices for payment, internal administrative issues and the need to wait for the Chairperson. He argued the enforcement notice violated Article 47 of the Constitution and the Fair Administrative Action Act, and relied on authorities on mandamus and conservatory orders. The respondents filed no replying affidavit. The court, A. Omollo J, restated that judicial review concerns the legality of the decision-making process, not its merits, and found that although Section 72(3) of the Physical and Land Use Planning Act provides an avenue of appeal against enforcement notices, the respondents had set no mechanism for receiving appeals or neglected to act on the complaint lodged, denying the applicant access to justice. The court held the mandamus should issue and that conservatory orders were warranted because, without a registered appeal, the applicant would have no forum to renew leave-stage stay orders. The application dated 11th August 2023 was allowed: mandamus was issued with 14 days for compliance, enforcement was stayed pending determination of the appeal, a default certiorari order quashing the enforcement notice was included, and costs were awarded to the applicant. Judgment delivered at Nairobi on 26th September 2024.

Key legal issues

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01

Whether mandamus should issue to compel the Liaison Committee to accept the applicant's appeal

Holding

Yes. The statute provides an appeal to the County Physical and Land Use Planning Liaison Committee, and the respondents failed to receive or act on the appeal, denying the applicant access to justice.

Reasoning

Section 72(3) of PLUPA entitles an aggrieved person to appeal an enforcement notice to the Liaison Committee within 14 days. The applicant attempted to lodge such an appeal but was met with excuses. The respondents filed no replying affidavit to contradict the facts. The committee is under a statutory public duty to receive the appeal, enforceable by mandamus.

p. 6
02

Whether conservatory orders should issue staying the enforcement notice

Holding

Yes. Without registration of the appeal, the applicant would have no forum in which to seek extension or renewal of stay orders, exposing him to enforcement.

Reasoning

Applying the principles in Board of Management of Uhuru Secondary School, the court found the applicant had an arguable case, that granting the orders would enhance constitutional values of access to justice and the right to be heard, and that without them the applicant would be prejudiced once leave-stage stay orders lapsed.

p. 6

Legal principles established

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  • Judicial review courts are concerned with the legality of the decision-making process, not the merits of the decision
  • Where a statute provides an avenue of appeal against an enforcement notice and the respondent authority fails to provide a mechanism to lodge such appeal, mandamus lies to compel performance of that public duty
  • Conservatory orders may issue where, absent registration of an appeal, the applicant would have no forum to seek renewal of stay orders

Court orders

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  1. 1.An order of mandamus directed at the 1st Respondent to accept, file, issue a case number and directions for hearing of the appeal dated 20th July 2023 within 14 days of service
  2. 2.A conservatory order staying enforcement, and any further enforcement, of the 2nd Respondent's notice of enforcement dated 17th July 2023 pending acceptance, filing, issuance of case number, directions and final determination of the appeal dated 20th July 2023
  3. 3.In default of compliance with the mandamus, an order of certiorari removing into the court the enforcement notice dated 17th July 2023 as null and void and in breach of the applicant's constitutional right to be heard
  4. 4.Costs of the application/suit awarded to the ex-parte applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 23, 40, 47, 48, 50
  • Fair Administrative Action ActSections 3, 4, 6
  • Physical and Land Use Planning Act No. 13 of 2019Sections 57, 67, 72(3), (4), 78, 79(1), 80, 87

Cases cited (9)

  • Odd Jobs Vs. Muhia
    (1970) EA 476
  • Great Lakes Transport Co. (u) Ltd Vs. Kenya Revenue Authority
    (2009) eKLR
  • Mbaki & Others Vs Macharia & Another
    (2005) 2 EA 206
  • Alfred N. Mulwa Vs. Ethics & Anti-Corruption Commission and 4 Others
    (2016) eKLR
  • Municipal Council of Mombasa Vs. Republic U Umoja Consultants Ltd
    CA Civ. App. No. 185 of 2001
  • Patroli vs. Kabale District Local Government Council and Others
    (2008) 2 EA 300
  • R vs Kenya Broadcasting Corporation exparte Musikari Kombo
    (2018) eKLR
  • Shah vs A.G
    (1970) EA 543
  • Board of Management of Uhuru Secondary School vs City County Director of Education and 2 Others
    (2015) eKLR
Jurisdiction invoked
Judicial review jurisdiction (order of mandamus and conservatory orders) over administrative action under the Physical and Land Use Planning Act and Article 47 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, "Republic v Nairobi City County Physical Land Use Planning Committee & 2 others; Dulu (Exparte) (Environment and Planning Judicial Review 1 of 2024) [2024] KEELC 6423 (KLR)", Case Analysis (2024). Judicial Review application, motion dated 11th August 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6423/eng@2024-09-26

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