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ELCDismissedNotice of Motion dated 15th May 2019 (Judicial Review)· [2024] KEELC 7165 (KLR)

Kuria & 5 others (Suing on their own Behalf and on Landlords, Letting Agents and Property Owners Association in Nyeri) v County Government of Nyeri (Environment and Land Judicial Review Miscellaneous Application 03 of 2019) [2024] KEELC 7165 (KLR)

Environment and Land Court
31 October 2024
JOJ. O. OLOLA
3,625 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The court dismissed Nyeri property owners' challenge to a valuation roll because they skipped the statutory Valuation Court process before going to court.

What this practically means

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Executive summary

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Six applicants, suing on their own behalf and on behalf of landlords, letting agents and property owners in Nyeri County, moved the court by Notice of Motion dated 15th May 2019 seeking certiorari to quash the decision to publish the Nyeri Draft Valuation Roll 2018/2019 and prohibition against levying rates under it, contending non-compliance with the Valuation for Rating Act (Cap 266), lack of public participation, overvaluations and financial discrimination among neighbouring residents. The County Government of Nyeri opposed the Motion and raised a preliminary objection on five grounds: filing out of time contrary to the leave order, non-exhaustion of remedies under section 10 of Cap 266, the matter having been overtaken by events (publication of the roll in March 2019 and hearing of 1,135 objections by a Valuation Court whose sittings concluded on 30th January 2024), absence of an administrative decision capable of being quashed, and defective filing not in the name of the Republic. The court held that under section 7 of the Fair Administrative Actions Act, 2015, leave is no longer required for judicial review, so the timing objection failed. However, on exhaustion, the court found that the Applicants had lodged objections and participated in the Valuation Court proceedings and were bound to await the Valuation Court's determination before coming to court; courts are fora of last resort. The Motion was found premature and misconceived and dismissed, with each party bearing their own costs.

Key legal issues

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01

Whether failure to file the substantive motion within the 21 days granted under leave rendered the application incompetent

Holding

No - leave is no longer required for judicial review under section 7 of the Fair Administrative Actions Act, so the delay was not fatal

Reasoning

The court held that following the Constitution of Kenya, 2010 and Article 47, the Fair Administrative Actions Act, 2015 radically altered the judicial review landscape. Section 7 of that Act allows any aggrieved person to apply for review without leave. Since leave was unnecessary, non-compliance with the leave timelines could not invalidate the Motion or justify striking it out.

p. 4
02

Whether the judicial review application contravened the doctrine of exhaustion

Holding

Yes - the Applicants filed objections to the draft roll and participated in the Valuation Court sittings but did not await its determination before moving to court, so the application was premature

Reasoning

Sections 10 and 16 of the Valuation for Rating Act provide a clear mechanism: objections are lodged with the town clerk and determined by a Valuation Court, which may confirm or amend the draft roll. The Applicants lodged objections and some attended the Valuation Court sittings which concluded on 30th January 2024. Having invoked that mechanism, they were obliged to await its outcome before seeking judicial review, and courts are fora of last resort.

p. 7

Legal principles established

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  • Under section 7 of the Fair Administrative Actions Act, 2015, leave is no longer required before instituting judicial review proceedings, so non-compliance with leave timelines does not render such an application incompetent
  • Where a statute provides a dispute resolution mechanism, it must be exhausted before the court's jurisdiction is invoked; the Valuation Court is the proper forum for objections to a draft valuation roll

Court orders

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  1. 1.The Notice of Motion dated 15th May 2019 was found premature and misconceived and dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 23(3)(f)
  • Constitution of KenyaArticle 47
  • Constitution of KenyaArticle 47(3)
  • Constitution of KenyaArticle 159
  • Fair Administrative Actions ActSection 7
  • Valuation for Rating Act (Cap 266)Sections 9(3), 10, 12, 16, 17

Cases cited (4)

  • John Githiri –vs- Trustees Nakuru Golf Club
    (2019) eKLR
  • Republic –vs- IEBC. Ex Parte NASA- Kenya & 6 Others
    (2017) eKLR
  • Speaker of National Assembly –vs- Karume
    (1992) KLR 21
  • Geofirey Muthinja Kabiru & 2 Others –vs- Samuel Munga Henry & 1756 Others
    (2015) eKLR
Jurisdiction invoked
Judicial review under Article 47 of the Constitution and the Fair Administrative Actions Act, 2015

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, "Kuria & 5 others (Suing on their own Behalf and on Landlords, Letting Agents and Property Owners Association in Nyeri) v County Government of Nyeri (Environment and Land Judicial Review Miscellaneous Application 03 of 2019) [2024] KEELC 7165 (KLR)", Case Analysis (2024). Notice of Motion dated 15th May 2019 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7165/eng@2024-10-31

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