Harji Govind Runda Cockatoos Limited v County Director of Physical Planning & another (Environment and Land Judicial Review Case E004 of 2023) [2024] KEELC 7418 (KLR)
The bottom line
#A Mombasa court quashed county eviction and enforcement notices issued without a hearing or reasonable time to comply, awarding costs to the property owners.
What this practically means
#Executive summary
#Key legal issues
#Whether the judicial review application met the threshold and was filed within time
Yes - the application was dated 25th October 2023, within six months of the impugned decisions of 19th and 23rd October 2023, and was directed against an administrative body.
The court applied Order 53 Rule 2 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act on the six-month limit for certiorari. The impugned notices were issued on 19th and 23rd October 2023 and the application was filed on 25th October 2023. The court also confirmed the applicants had locus standi and invoked the Pastoli threshold of illegality, irrationality and procedural impropriety.
Whether the County Director of Physical Planning's notices were procedurally fair and lawful
The notices were procedurally improper and ultra vires: no prior hearing was given, and the notices required immediate vacatur rather than reasonable time to comply, contrary to Section 38 of the Physical and Land Use Planning Act and Section 4(3)(a) of the Fair Administrative Action Act.
Relying on Pastoli and Section 4(3)(a) of the Fair Administrative Action Act, the court held that a person adversely affected must be given prior and adequate notice of the nature and reasons of the proposed action and an opportunity to be heard. A valid enforcement notice under Section 38 of the Physical and Land Use Planning Act must specify the alleged development, required measures, and allow reasonable time; a notice taking effect immediately is invalid. Uncontroverted by any replying affidavit, the applicants' averments stood.
Costs
Applicants, having succeeded, are entitled to costs borne by the Respondents jointly.
Guided by Section 27(1) of the Civil Procedure Act and authority that costs follow the event, and since the application was found meritorious, the court awarded costs to the Applicants to be borne by the 1st and 2nd Respondents jointly.
Legal principles established
#- An administrative body must afford a person who stands to be adversely affected an opportunity to be heard before issuing an enforcement notice.
- An enforcement notice that takes effect immediately, without reasonable time to comply, is not a valid notice.
- Where a Respondent files no replying affidavit, the Applicant's unchallenged averments are taken at face value.
Court orders
#- 1.An order of certiorari removing into the High Court for quashing the decision made on 19th October, 2023 by the County Director of Physical Planning to evict the Applicants and residents of building on plot no XXVI/187 Kizingo
- 2.An order of certiorari removing into the High Court for quashing the decision made on 23rd October, 2023 by the County Director of Physical Planning to interfere with the Applicants' and residents' quiet possession of building on plot no XXVI/187
- 3.A declaration that the decision and conduct of the Respondents in issuing the notice dated 19th October, 2023 is ultra vires, unlawful, Wednesbury unreasonable, unfair, manifestly unjust and in blatant disregard to the rules of natural justice
- 4.A declaration that the decision and conduct of the Respondents in issuing the notice dated 23rd October, 2023 is ultra vires, unlawful, Wednesbury unreasonable, unfair, manifestly unjust and in blatant disregard to the rules of natural justice
- 5.Costs of the suit awarded to the Applicants, to be borne by the Respondents jointly
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act (Cap. 26), Order 53 of the Civil Procedure Rules, 2010 and Article 47 of the Constitution read with Section 7 of the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harji Govind Runda Cockatoos Limited v County Director of Physical Planning & another (Environment and Land Judicial Review Case E004 of 2023) [2024] KEELC 7418 (KLR)", Case Analysis (2024). Judicial Review suit (Chamber Summons dated 25th October, 2023), Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7418/eng@2024-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.