[2005] KEHC 10 (KLR)
The court found that the mandatory procedures outlined in sections 119 and 120 of the Public Health Act were not followed. No notice was served on the appellant, no formal complaint was lodged before the magistrate, and the appellant was not summoned to appear before the court. Instead, the orders were issued...
Source-derived case information.
- Citation
- [2005] KEHC 10 (KLR)
- Parties
- Appellant: GG Githui; Respondent: FG Wanjohi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 141 of 1996
- Procedural Posture
- Criminal Appeal / Appeal From Magistrate's Order
- Outcome
- appeal allowed; magistrate's orders set aside
- Legal Topics
- Public Health Nuisance, Procedural Fairness, Natural Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
GG Githui
Appellant
FG Wanjohi
Respondent
Procedural Posture
Criminal Appeal / Appeal From Magistrate's Order
Legal Issues
- 1 Whether the procedure under sections 119 and 120 of the Public Health Act was followed before issuing the demolition order.
- 2 Whether the appellant was denied a fair hearing contrary to the rules of natural justice.
Ratio Decidendi
The court found that the mandatory procedures outlined in sections 119 and 120 of the Public Health Act were not followed. No notice was served on the appellant, no formal complaint was lodged before the magistrate, and the appellant was not summoned to appear before the court. Instead, the orders were issued ex-parte, resulting in the appellant being condemned without a hearing. This was a clear violation of both statutory requirements and the rules of natural justice. Consequently, the trial magistrate's orders were set aside for failure to comply with the law and for acting contrary to the principles of fairness and due process.
Court Disposition
appeal allowed; magistrate's orders set aside
Orders
- The appeal is allowed.
- The orders of the trial magistrate made on 6th June 1996 are set aside.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 141 of 1996
The appellant GG Githui is aggrieved by an order which was made on 6th
June 1996 by the then Senior Resident Magistrate Nanyuki ordering the
appellant to demolish structures on Plot No TOL “B” which was alleged
to constitute a nuisance and to further issue an order to the tenants of the
premises to vacate the premises within 14 days.
The orders were issued pursuant to an ex-parte chamber summons stated
to be brought under section 142 as read with section 115 and 118 of the
Public Health Act cap 242. The court only heard one FG Wanjohi a Public
Health Officer who claimed to have inspected the premises owned by the
appellant and found that they constitute a nuisance.
Section 119 and 120 of the Public Health Act provides the procedure to
be followed by the Medical Officer of Health in order to deal with a
nuisance. First a notice should be served on the author of the nuisance or
if he cannot be found on the occupier or owner of the dwelling or on the
on premises on which the nuisance arises to remove the nuisance within a
specified time.
Secondly where the person on whom the notice is served fails to comply
with the notice, the Medical Officer shall cause a complaint to be registered
before a magistrate.
Thirdly the magistrate shall issue a summons requiring the person on
whom the notice was served to appear before his court.
Fourthly the court if satisfied that the alleged nuisance exist shall make
an order requiring the person on whom the notice was served to comply
with the notice.
In this case none of the above mandatory requirements provided in section
119 and 120 of the Public Health Act were complied with. No notice was
served on the appellant. No formal complaint was lodged before the
magistrate nor did the magistrate summon the appellant to appear before
him. Instead a peculiar procedure was adopted through an ex-parte
chamber summons with the result that the appellant was condemned
without being given any hearing.
Clearly the trial magistrate erred in failing to comply with the mandatory
legal provisions and also in acting contrary to the rules of natural justice.
Accordingly I allow the appeal and set aside the orders of the trial
magistrate made on 6th June 1996.