Mwawasi v County Executive Committee Member, Lands, Physical Planning, Mining & Energy Taita Taveta County & 4 others (Judicial Review Application E002 of 2024) (Environment and Land) [2025] KEELC 1056 (KLR)
The bottom line
#Kenya's Environment and Land Court quashed Taita Taveta County's rejection of building plans because the county never heard the applicant or gave written reasons.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction vis-à-vis exhaustion of alternative remedies
The court has jurisdiction notwithstanding the existence of internal review mechanisms under the Fair Administrative Action Act and the Physical and Land Use Planning Act
The court accepted the exhaustion doctrine as sound but adopted the nuanced approach endorsed by the Supreme Court in Nicholus, holding that alternative mechanisms postpone rather than oust the court's jurisdiction, and that Section 9(4) of FAA Act permits exemption in the interest of justice. The Applicant also alleged constitutional violations.
Whether the right to fair administrative action was violated
Yes - the Applicant was not heard and no written reasons were given for the rejection of the building plans
Applying Article 47, the court found the decision to dismiss the building plans was made without affording the Applicant an opportunity to be heard and without written reasons, only oral communication via a county official, breaching fair administrative action and the right to be heard.
Entitlement to the judicial review remedies sought
Certiorari granted; mandamus and prohibition refused as framed
Relying on KENYA National Examination Council v Gathenji and mandamus authorities, the court held mandamus as framed would usurp statutory powers and prohibition is ineffective against a completed decision; the proprietary road-reserve dispute requires a suit with evidence. Only certiorari was appropriate.
Legal principles established
#- The existence of an alternative statutory dispute resolution mechanism does not deprive the court of jurisdiction; it only postpones invocation of that jurisdiction
- The exhaustion doctrine applies only where the alternative forum is accessible, affordable, timely and effective
- A decision made without hearing the affected person and without written reasons violates the right to fair administrative action and warrants certiorari
Court orders
#- 1.An Order of Certiorari issued to call into the Court and quash the decision of the County Director of Physical and Land Use Planning Taita Taveta of 28th April 2023 dismissing the Exparte Applicant's application for building plans approval for title No. CR. 46572
- 2.Each party to bear own costs of the application
- 3.Any other relief not expressly granted is deemed as declined
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwawasi v County Executive Committee Member, Lands, Physical Planning, Mining & Energy Taita Taveta County & 4 others (Judicial Review Application E002 of 2024) (Environment and Land) [2025] KEELC 1056 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1056/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.