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High CourtDismissedJudicial Review Application - Notice of Motion dated 11th July 2018

Republic ex parte Cyton Investment Partners Sixteen LLP v County Government of Nairobi & Others

High Court of Kenya
27 January 2020
22,238 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~89 min to read original · ~4 min brief

The bottom line

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Before suing the government over a decision, you must exhaust all mandatory internal appeal options first.

What this practically means

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Executive summary

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Cyton Investment Partners Sixteen LLP obtained approval of architectural plans for the 'Cyton Towers' mixed-use development on LR Nos. 2/85, 2/86 and 2/87 in Kilimani, Nairobi, on 24th July 2017. By a letter dated 30th April 2018, the County Government of Nairobi purported to cancel the approval pursuant to section 10 of the Building Code, citing unresolved objections from Kilimani residents and alleged non-compliance with sections 41(3) and 52 of the Physical Planning Act. The applicant moved the High Court by Notice of Motion dated 11th July 2018 seeking a declaration that the cancellation violated Article 47 and the Fair Administrative Action Act, certiorari to quash it, and prohibition against further cancellation. The Respondent and twenty-two Interested Parties, including Kilimani Project Foundation and Cavina School, opposed, contending the approval breached zoning regulations, public participation requirements and environmental safeguards. Mativo J framed five issues. He held the suit offended the doctrine of exhaustion of statutory remedies: the applicant should have appealed to the Liaison Committee under sections 13 and 15 of the PPA, and section 9(2) and (3) of the FAA Act are mandatory, with no section 9(4) application for exemption having been made. He further held the High Court lacked jurisdiction, the dispute falling within the exclusive sphere of the Environment and Land Court under Articles 162(2)(b) and 165(5)(b) of the Constitution. On the merits, he found no illegality, procedural impropriety or abuse of power, holding that planning is a continuous process and the county government retains power to revoke development permission. The Notice of Motion was dismissed with costs to the Respondent and the Interested Parties.

Key legal issues

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01

Exhaustion of statutory remedies

Holding

The suit offends the doctrine of exhaustion; the applicant ought to have appealed to the Liaison Committee under sections 13 and 15 of the PPA and made no section 9(4) FAA Act application for exemption

Reasoning

The court held refusal or cancellation of development permission is appealable to the Liaison Committee. Section 9(2) and (3) of the FAA Act are mandatory ('shall'). The applicant argued the Committee lacked jurisdiction and was not constituted, but the court held that even so, section 9(4) requires a formal application demonstrating exceptional circumstances, which was never made. No evidence showed the statutory remedy was ineffective or futile.

p. 11
02

Jurisdiction of the High Court vis-à-vis the Environment and Land Court

Holding

The High Court's jurisdiction was improperly invoked because the dispute concerns land use planning and falls within the exclusive sphere of the Environment and Land Court under Article 162(2)(b) and section 13 of the ELC Act

Reasoning

Relying on Article 165(5)(b) and Karisa Chengo, the court held the High Court is precluded from matters reserved to the ELC, which can itself grant prerogative orders and enforce environmental rights under section 13(3) and (7) of the ELC Act. The substratum of the dispute - development permission and land use - falls squarely within section 13(2) of that Act.

p. 14
03

Illegality of the cancellation

Holding

No illegality found; the cancellation fell within the Respondent's mandate under section 29 of the PPA and the Building Code, planning being a continuous process

Reasoning

The court rejected the argument that an approval, once granted, could not be cancelled, holding that planning is continuous and that where approval conditions are breached or crucial material emerges, revocation is mandated. The court found the reasons given for cancellation defensible under the enabling statute and declined to interfere.

p. 20
04

Procedural impropriety / fair administrative action

Holding

No procedural impropriety; the right to fair administrative action is context-sensitive and the cancellation was communicated with reasons citing clear legal provisions

Reasoning

Applying J.S.C. v Mbalu Mutava, the court held fairness depends on context. The cancellation was communicated in writing with reasons citing the Building Code and PPA provisions; the applicant had a statutory right to seek details or challenge the decision in the proper forum and did not do so. The proportionality/suitability-necessity test was met.

p. 20
05

Abuse of power

Holding

No abuse of power demonstrated; a judicial review court does not sit as an appellate court over a statutory body acting within jurisdiction

Reasoning

The court reiterated that once a statutory body acts within its jurisdiction following statutory procedures, the court may only intervene if the decision is so unreasonable it defies logic. The applicant failed to show the Respondent directed itself improperly or took into account irrelevant matters.

p. 21

Legal principles established

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  • Where Parliament has established a statutory dispute-resolution mechanism, judicial review is unavailable until internal remedies are exhausted, unless the applicant formally applies under section 9(4) of the FAA Act and demonstrates exceptional circumstances
  • Section 9(2) and (3) of the FAA Act are mandatory; an exemption under section 9(4) requires a formal application demonstrating exceptional circumstances and that the exemption is in the interest of justice
  • The High Court has no jurisdiction over land use planning and environmental disputes reserved for the Environment and Land Court under Article 162(2)(b) and Article 165(5)(b) of the Constitution
  • The power to grant development permission does not cease upon grant; the county government retains a continuing statutory mandate to revoke or cancel an approval where approval conditions are breached or crucial material justifying cancellation emerges

Court orders

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  1. 1.Dismissal of the applicant's Notice of Motion dated 11th July 2018
  2. 2.Costs of the application to the Respondent and the Interested Parties
Jurisdiction invoked
Articles 23(1) and 165(1) of the Constitution (judicial review and enforcement of Bill of Rights); Fair Administrative Action Act, section 8

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 Cyton Investment Partners Sixteen LLP v County Government of Nairobi & Others", Case Analysis (2020). Judicial Review Application - Notice of Motion dated 11th July 2018. Source: 

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