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ELCPartially AllowedJudicial Review (Notice of Motion dated 27th March 2024)· [2024] KEELC 6823 (KLR)

Republic v County Executive Committee Member Environment Natural Resources and Urban Planning County Government of Kwale & another; Tajano Limited (Exparte Applicant) (Environment and Land Judicial Review Case E002 of 2024) [2024] KEELC 6823 (KLR)

Environment and Land Court
16 October 2024
10,219 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that Kwale County unlawfully revoked Tajano Limited's building permits without a hearing, but sent the deeper ownership dispute to a full trial.

What this practically means

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Executive summary

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Tajano Limited, the registered owner of title Kwale/Diani Beach Block/983, obtained two development permissions from the County Government of Kwale in 2023 for change of user and construction of a boundary wall, guard house and road network, spending over Kshs 18 million on the project. By a letter dated 17th January 2024 and decision of 18th January 2024, the County revoked both permissions on the ground that the title was invalid, the underlying lease having expired in 2013. Tajano filed an appeal to the County Physical and Land Use Planning Liaison Committee but was informed no committee existed, prompting this judicial review motion seeking exemption from exhaustion, certiorari, prohibition and mandamus. The court found the absence of the Liaison Committee a special circumstance meriting exemption under Section 9(4) of the Fair Administrative Action Act, reinforced by the lapse of the Committee's statutorily timed jurisdiction and Section 93 of the Physical and Land Use Planning Act conferring jurisdiction on the Environment and Land Court. On the merits, the court held the revocation unlawful: the Applicant was denied a prior hearing, violating Article 47 and Section 4 of the Fair Administrative Action Act, and the County had no authority to finally determine title legality, becoming accuser, investigator and prosecutor. However, because the validity of the title is seriously disputed and not a matter for judicial review, the court declined certiorari, prohibition and mandamus, instead declaring the revocation unlawful, directing the parties to an appropriate forum for the title question, and ordering maintenance of the status quo over the property and register pending that determination. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the doctrine of exhaustion barred the application

Holding

The court had jurisdiction; the applicant was exempted from exhausting the Liaison Committee remedy

Reasoning

The applicant first filed an appeal but was informed no Liaison Committee existed. The absence of a forum was a special circumstance meriting exemption under Section 9(4) of the Fair Administrative Action Act. Further, the Committee's statutorily timed jurisdiction under sections 61(3) and 72(4) of the Physical and Land Use Planning Act had lapsed, and under section 93 of that Act, disputes arising before establishment of the Committee fall to the Environment and Land Court.

p. 10
02

Whether the revocation of the two development permissions was lawful

Holding

The revocation was unlawful, procedurally unfair and ultra vires

Reasoning

The Respondents revoked the permissions without prior notice or hearing, violating Article 47 and Section 4(3)(b) of the Fair Administrative Action Act. Condition No. 2 of the permission was a disclaimer barring the County from using ownership disputes as a revocation ground. The Respondents usurped judicial authority by adjudicating title validity, becoming accuser, investigator and prosecutor, rendering the decision ultra vires.

p. 13
03

Whether judicial review was the proper forum for determining the validity of the applicant's title

Holding

No; issues of authenticity and legality of the title must go to a civil suit

Reasoning

Judicial review concerns the decision-making process, not contested questions of fact. Both parties adduced conflicting material on the title's validity, including expiry of the lease. The court, exercising restraint, declined a merit review of the title and directed the parties to an appropriate forum where each may ventilate their case with evidence tested.

p. 16
04

Whether certiorari, prohibition and mandamus should issue

Holding

The court exercised its discretion to refuse the prerogative orders, granting only exemption and declaration with status quo preservation

Reasoning

Judicial review remedies are discretionary. Given the unresolved and serious conflicting issues over the title, granting the orders would implicitly validate the impugned title and leave future conflicts unresolved. The court instead preserved the status quo over the property and register pending determination of title validity in an appropriate forum.

p. 17

Legal principles established

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  • A court may exempt an applicant from exhausting administrative remedies in exceptional circumstances where no forum exists to hear the appeal
  • Jurisdiction is acquired at the commencement of proceedings and is not lost by subsequent constitution of the alternative forum
  • A County Executive Committee Member has no authority to make a final determination on the legality or validity of a title
  • Revocation of development permission without prior notice or hearing violates the right to fair administrative action under Article 47 and Section 4 of the Fair Administrative Action Act

Court orders

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  1. 1.Exemption of the Applicant from the requirement to exhaust the local remedy of first appealing to the County Physical and Land Use Planning Liaison Committee under Section 9(4) of the Fair Administrative Action Act
  2. 2.Declaration that the Respondents acted unlawfully in revoking development permissions DA/CU/O1/O4/2003 and DA/PB/06/09/2023
  3. 3.Parties to take the dispute to an appropriate forum where issues touching on the validity of the Exparte Applicant's title can be determined with finality
  4. 4.Pending that determination, status quo on the suit property and the register over title Kwale/Diani Beach Block/983 to be maintained; Respondents not to interfere with quiet possession; Land Registrar Kwale not to register any detrimental entries
  5. 5.Each party to bear its own costs
Jurisdiction invoked
Order 53 Rule 3 of the Civil Procedure Rules 2010; Section 8(2) of the Law Reform Act Cap 26; Section 9(4) of the Fair Administrative Action Act; Section 93 of the Physical and Land Use Planning Act

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 Environment Natural Resources and Urban Planning County Government of Kwale & another; Tajano Limited (Exparte Applicant) (Environment and Land Judicial Review Case E002 of 2024) [2024] KEELC 6823 (KLR)", Case Analysis (2024). Judicial Review (Notice of Motion dated 27th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6823/eng@2024-10-16

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