Republic ex parte Environmental & Combustion Consultants Limited v County Government of Kajiado & 2 Others; National Environment Management Authority (Interested Party)
The bottom line
#County officials cannot unlawfully destroy your property or interfere with your business without following due process.
What this practically means
#Executive summary
#Key legal issues
#Attribution of the destruction of the Applicant's property to the 1st Respondent
The actions of the 1st Respondent's officials, including the Governor's closure directive, were attributable to the county government, but there was no evidence of the MCA's participation in the burning; the 1st Respondent's interference with the Applicant's operations had no legal basis and was unlawful
The court held that officials named by the Applicant were members of the county government under Article 176, so their actions in that capacity are attributable to the county. The Governor's undisputed closure directive and the admitted meeting evidenced interference. The 1st Respondent cited the Physical Planning Act and Public Health Act but produced no evidence of the statutory provisions or processes permitting interference, so its actions were unlawful.
Whether the Respondents are under a legal duty to protect the Applicant's property
Yes; the Respondents have constitutional and statutory duties to protect property, and to a certain extent failed to perform them, though the 2nd and 3rd Respondents did act to protect the property on 26th January 2017
Article 40 protects property rights; Articles 10 and 21(1) bind all public officers to respect and protect that right; section 24 of the National Police Service Act imposes duties including protection of life and property and investigation of crimes. The 2nd and 3rd Respondents gave no evidence of any investigation into the 21st August 2014 destruction, though they conceded acting to protect the premises on 26th January 2017.
Whether the Applicant is entitled to prohibition and mandamus
Prohibition issued against the 1st Respondent and mandamus against the 2nd and 3rd Respondents, since the threat to the Applicant's property still exists and no due process or lawful basis for interference was shown
Having found the 1st Respondent's interference unlawful and the threat ongoing, prohibition was appropriate to restrain future unlawful conduct. Mandamus was merited because the 2nd and 3rd Respondents have a constitutional and legal duty to protect the property, took no action on the destruction, and future threats persist.
Scope of judicial review after the 2010 Constitution and the Fair Administrative Action Act
Judicial review now includes merit review of administrative action under Article 47 and section 7 of the Fair Administrative Action Act, though the court cannot substitute its own decision
Following Suchan Investment Limited, the court noted that Article 47 as read with section 7 of the Fair Administrative Action Act introduces grounds requiring review of the substance of decisions - relevant and irrelevant considerations, rationality, proportionality, legitimate expectations and proper purposes - beyond the traditional Pastoli grounds of illegality, irrationality and procedural impropriety.
Legal principles established
#- Actions undertaken by county government officials (Governor, CEC, MCAs) in their capacity as public officials are attributable to the county government
- A public body interfering with a person's operations without any legal basis and without following due process acts unlawfully
- Respondents have a constitutional and legal duty to protect the Applicant's property under Articles 10, 21(1) and 40 of the Constitution and section 24 of the National Police Service Act
Court orders
#- 1.An order of Prohibition prohibiting the 1st Respondent from unlawfully destroying, interfering with and/or carrying out or causing to be carried out any act detrimental and or prejudicial to the Applicant's properties, developments and operations within Kajiado County, and without following the due process of the law
- 2.An Order of Mandamus compelling the 2nd and 3rd Respondents to investigate and take appropriate action on the destruction of the Applicant's properties on 21st August 2014, and upon request to do so, to reasonably protect and secure the Applicant's properties, developments and operations within Kajiado County
- 3.The Respondents shall bear the costs of the Notice of Motion dated 18th September 2014
- Jurisdiction invoked
- Judicial review jurisdiction of the High Court under Article 47 of the Constitution as read with the Fair Administrative Action Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic ex parte Environmental & Combustion Consultants Limited v County Government of Kajiado & 2 Others; National Environment Management Authority (Interested Party)", Case Analysis (2020). Judicial Review Notice of Motion dated 18th September 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/5324/eng@2020-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.