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High CourtPartially AllowedJudicial Review Notice of Motion dated 18th September 2014· [2020] KEHC 5324 (KLR)

Republic ex parte Environmental & Combustion Consultants Limited v County Government of Kajiado & 2 Others; National Environment Management Authority (Interested Party)

High Court of Kenya
8 June 2020
7,453 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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County officials cannot unlawfully destroy your property or interfere with your business without following due process.

What this practically means

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Executive summary

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Environmental & Combustion Consultants Limited, a hazardous waste management company, sought judicial review orders of prohibition and mandamus against the County Government of Kajiado, the Cabinet Secretary for Interior and the National Police Service, following the destruction and burning of its Kajiado property valued at Kshs 200 Million on 21st August 2014, and a subsequent directive by the Kajiado Governor on 26th January 2017 to shut down its incinerator. NEMA was joined as interested party, having issued the Applicant an EIA licence. The County Government argued the dispute was a private law matter, that the MCA who allegedly directed the burning was not its employee, and that the Applicant lacked development approvals. The court, per P. Nyamweya J, framed three issues: attribution of the destruction to the Respondents, the existence of a legal duty to protect the property, and entitlement to relief. The court held that acts of county officials undertaken in their official capacity are attributable to the county government; that the 1st Respondent's interference with the Applicant's operations had no legal basis or due process and was unlawful; and that the Respondents bear constitutional and statutory duties to protect the property under Articles 10, 21(1) and 40 and section 24 of the National Police Service Act, which they partially failed to perform. The court granted prohibition against the County Government and mandamus compelling the police to investigate and protect the Applicant's property upon request, with costs to the Applicant. The Governor had separately been convicted of contempt for disobeying stay orders.

Key legal issues

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01

Attribution of the destruction of the Applicant's property to the 1st Respondent

Holding

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

Reasoning

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.

p. 6
02

Whether the Respondents are under a legal duty to protect the Applicant's property

Holding

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

Reasoning

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.

p. 7
03

Whether the Applicant is entitled to prohibition and mandamus

Holding

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

Reasoning

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.

p. 8
04

Scope of judicial review after the 2010 Constitution and the Fair Administrative Action Act

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 3.The Respondents shall bear the costs of the Notice of Motion dated 18th September 2014

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 21(1), 40, 47, 174, 176, 243
  • Environmental Management and Co-ordination Act (EMCA)section 63
  • Environmental (Impact Assessment and Audit) Regulations, 2003
  • Fair Administrative Action Actsections 3, 4, 7
  • National Police Service Actsections 24, 105
  • Physical Planning Act
  • Public Health Act
  • Local Government Act (repealed)

Cases cited (22)

  • Muigai International (K) Limited v Nairobi City County
    [2016] eKLR

    Prohibition of closure of a business before the person complained against is heard and given opportunity to abate the nuisance

  • Republic Vs Attorney General & 4 Others ex Parte Diamond Hashim Lalji And Ahmed Hasham Lalji
    [2014] eKLR

    Judicial review is a public law remedy concerned with decision-making process, not the merits

  • Ezekiel Misango Mutisya vs National Lands Commission & 6 Others
    [2014] eKLR

    Disputes requiring determination of disputed issues of fact are not suitable for judicial review

  • Re Bivac International SA (Bureau Veritas)
    (2005) 2 EA 43

    Criteria for judicial review: illegality, impropriety of procedure and irrationality

  • Pastoli v Kabale District Local Government Council and Others
    [2008] 2 EA 300

    Grounds for judicial review - illegality, irrationality and procedural impropriety

  • Republic v Kenya Revenue Authority Ex-Parte Yaya Towers Limited
    [2008] eKLR

    Purpose of judicial review is to ensure fair treatment by the authority

  • Seventh Day Adventist Church (East Africa) Limited v Permanent Secretary, Ministry of Metropolitan Development and Another
    [2014] eKLR

    Court should not address the merits of the decision being challenged

  • Suchan Investment Limited vs. Ministry of National Heritage & Culture & 3 others
    (2016) KLR

    Article 47 and section 7 of FAAA shift judicial review to include merit review of administrative action

  • R v. The Commissioner of Coop. Ex p. Kirinyaga Tea Growers Coop. Savings and Credit Society Ltd
    [1999] 1 EA 245

    A body with power to regulate must act reasonably and rationally

  • Gullid Mohamed Abadi vs O.C.P.D Isiolo Police Station & 2 Others
    (2006) eKLR

    Duties of the Kenya Police Service

  • Republic vs. Kenya National Examinations Council ex parte Gathenji & Others
    Civil Appeal No. 266 of 1996

    Threshold for judicial review orders

  • Prabhulal Gulabchand Shah vs. Attorney General & Erastus Gathoni Miano
    Civil Appeal No. 24 of 1985

    Applicant must demonstrate breaches of law or procedure to warrant intervention

  • Shah vs. Attorney General (No. 3)
    Kampala HCMC No. 31 of 1969 [1970] EA 543

    Threshold for judicial review intervention

  • The Republic v. Director-General of East African Railways Corporation, ex parte Kaggwa
    (1997) KLR 194

    Threshold for judicial review intervention

  • Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge & 9 others
    [1997] eKLR

    Principles on when orders of prohibition and mandamus issue

  • Patrick Kariungi vs The Commissioner of Police & Anor
    [2014] eKLR

    Judicial review remedies are discretionary and the applicant's conduct is relevant

  • Republic vs Lake Victoria South Water Services Board & Another
    [2013] eKLR

    Discretionary nature of judicial review remedies

  • Environmental & Combustion Consultants Ltd vs Kenya Pipeline Company Limited & 2 Others
    [2016] eKLR

    Definition of the public interest

  • Council of Civil Service Union v Minister for the Civil Service
    [1985] AC 2

    Grounds of illegality, irrationality and procedural impropriety in judicial review

  • Francis Bahikirwe Muntu and others v Kyambogo University
    High Court, Kampala, miscellaneous application number 643 of 2005 (UR)

    Grounds for judicial review

  • Re An Application by Bukoba Gymkhana Club
    [1963] EA 478

    Irrationality as gross unreasonableness in decision-making

  • Al-Mehdawi v Secretary of State for the Home Department
    [1990] AC 876

    Procedural impropriety as failure to act fairly

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

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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 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.