[2021] KEELC 2828 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT

AT MOMBASA

MISC APP. ELC JR NO. 8 OF 2020

NGOMO MULTI-PURPOSE

CO-OPERATIVE SOCIETY LTD................................APPLICANT (Ex-Parte)

VERSUS

COUNTY GOVERNMENT OF MOMBASA.............................RESPONDENT

JUDGMENT

1. Pursuant to leave granted by the court on 14th October, 2020, the Ex-parte Applicant, Ngomo Multi-purpose Co-operative Society Ltd filed the Notice of motion dated 3rd November 2020 brought under Order 53 rule 3 and 4 of the Civil Procedure Rules, Section 8 (1) and 9 Law Reform Act cap 26 Law of Kenya and Section 9 of the Fair Administrative Action Act, 2015. The Ex-parte Applicant seeks for orders:

I. THAT this Honourable court be pleased to grant to the applicant herein an order of prohibition to prohibit the Respondent from executing or effecting the Enforcement Notice dated 30th September, 2020 purportedly issued under the Physical and Land use Planning Act, 2019 as served upon the Applicant and its tenants.

II. The costs of the application be provided for.

2. The application is based on the grounds set out in the statutory statement dated 14th October, 2020 and the verifying affidavit of Emily Koki Nzioki sworn on 13th October, 2020 and the documents annexed thereto. It is averred that the applicant is the lawful proprietor of an interest in fee simple over the property known as subdivision 1096 (Orig. 66/2) Sec VI MN which property fronts the Changamwe-Mainland Road at Msikiti Noor. That sometime in October 2016, the Respondent threatened to demolish structures standing on a portion of the property on the basis that the same were blocking an access road, a matter the Applicant believes had been instigated at the behest of a third party who began occupying the second row plot from the road-plot No. 182/30/VI MN, abutting on the Applicant’s said property. That the Respondent issued notice under the Physical Planning Act, 1996 which statute has since been repealed and replaced by the Physical and Land Use Planning Act of 2019. That in reaction to the aforesaid notice, the applicant lodged an appeal with the physical planning Liason Committee of the Mombasa County and that the effect of the Appeal was to stay the demolition notice pending a determination of the matter.

3. It is stated that sometime in May 2018, the Applicant was advised by the Respondent to make payment, which payment was made, for purposes of having a survey done to re-establish the Applicant’s beacons. That despite making payment as aforesaid, the Respondent did not deploy any surveyor to the site as was intended despite promises to do so on diverse occasions. That while still awaiting the surveyor’s visit, the Respondent has surprisingly served upon the Applicant yet another notice of intended demolition dated 30th September, 2020, this time purported to be issued under the Physical and Land Use Planning Act, 2019. It is the Applicant’s contention that the aforesaid notice and its intended consequences are arbitrary, capricious, informed by malice and in breach of the rules of natural justice. The Applicant states that it awaits a determination of the boundary issue pursuant to the Respondents own advice to pay survey charges following appeal against the previous notice, and the earlier demolition notice is deemed stayed once an appeal had been filed therefrom. That the Applicant is being denied the right to have a fair determination of the issue in dispute and therefore the Respondent’s conduct is in the circumstances, arbitrary, capricious and steeped in bad faith. That following the threat of demolition, the Applicant has been put to the inconvenience of commissioning an independent survey at further cost to it, which survey has established that the purported offending structures lie within the Applicant’s land. That the Respondent’s actions are in clear breach of the requirements of Section 4 of the Fair Administrative Action Act and especially subsections (4) (1), (4) (4) as set out in the statement filed herein. That there is real possibility of the Applicant’s right to fair administrative action being abrogated, and its property interfered with arbitrarily, may capriciously, thus necessitating this Honourable Court’s intervention. The Ex-parte Applicant has annexed copies of relevant documents, including authority, postal search, notice dated 19th October, 2016, memorandum of Appeal, receipt, letters dated 12th September, 2018, 28th February, 2019 and 4th June, 2019, Enforcement Notice dated 30th September, 2020, and surveyor’s report dated 11th October, 2020.

4. In his submissions dated 6th May, 2021 and filed in court on 7th May, 2021, Mr. Mwakisha, Advocate for the Ex-parte Application reiterated the grounds in support of the applicant. He pointed out that the Respondent has only filed grounds of objection to the application and submitted that the factual foundation of the applicant’s case is uncontroverted and that the facts are settled. Counsel cited the provisions of Section 38 of the Physical Planning Act, 1996 as repealed by Section 72 of the Physical and Land Use Planning Act, 2019 and stated that whereas the Respondent contends that the application before court contravenes the said provisions, it was the Applicant’s submission that in issuing a fresh notice when there was still a pending appeal on a previous notice, the Respondent was acting arbitrarily, irrationally and in disregard of the precepts of fairness. That the respondent cannot, in the circumstance, expect that a second appeal should be taken against the self-same matters that are the subject matter of the subsisting appeal. That it would not only be unfair, oppressive, arbitrary and punitive, but a waste of resources, and would also be quite illogical that the applicant should abandon the subsisting appeal and file a second appeal on the same matter. It was submitted that the jurisdiction point taken by the respondent, is misplaced and overlooks the point that judicial review, and fair Administrative Action challenges are concerned with processes, and not an application to have the substantive merits of the subsequent notice examined per se. On the objection that the application contravenes Section 9 (2) of the Fair Administrative Action Act, the applicant’s submission is that the internal mechanism envisaged by the law is the appeal which is pending, yet the applicant is now faced with what is a double jeopardy. That the effect of the appeal was to stay the intended enforcement measures whilst the appeal is pending. That in truth, the merits of the enforcement notice have already been subjected to the legally intended internal mechanism, and it would be something akin to sub judice if the applicant were to present yet a similar appeal on the same subject matter. That any internal mechanisms for appeal or review as envisaged by Section (2) cannot then be the alternative remedial platform, or the proper place to cure the mischief brought by the 2019 enforcement notice. That to file a new appeal within the regime created under Section 72 of the New Act would be to invite that body to consider substantive arguments that it is already seized of vide the pending appeal, arguing that the transitional status is such that appeals previously filed with the old Liason Committee now fall within the purview of the physical Planning Land Use Planning Liaison Committee. The Applicant’s counsel further submitted that they have rightly invoked the provisions of Section 4 (1) and 4 (3) of the Fair Administrative Action Act and Article 47 of the Constitution. It is submitted that the objection taken under the Fair Administrative Action Act is without merit. The Applicant’s counsel urged the court to consider the totality of the uncontested facts and allow the application with costs.

5. In opposing the application, the Respondent filed grounds of opposition dated 10th February, 2021 on the grounds that:

I. The application amounts to abuse of the court process and should thus be dismissed with costs.

II. The application violates the provisions of Section 38 of the Physical Planning Act of 1996 as repealed by Section 72 of the Physical and Land Use Planning Act of 2019.

III. The application contravenes Section 9 (2) of the Fair Administrative Action Act.

IV. The application does not warrant issuance of orders of Judicial Review sought against the Respondent for failing to satisfy the conditions required to grant of such orders.

6. Ms Elizabeth Kisingo, learned counsel for the Respondent in submissions filed on 18th May, 2021 noted that the Applicant has not mentioned whether it sought an explanation as to why the case has not been handled to date. That it is trite that equity does not aid the indolent. It was further submitted that the court has no jurisdiction to handle the matter since the Applicant contravened the condition precedent to filing suit as stipulated under the physical planning and Land Use Act. The Respondent’s counsel cited Section 72 of the said Act and relied on the case of Ndiara Enterprises Ltd –vs- Nairobi City County Government [2018] eKLR and urged the court to strike out the application with costs. That the Applicant should have raised the issue before the liaison committee or demonstrate the steps taken in ensuring the pending appeal was heard and determined. It is the Respondent’s contention that the Applicant who has been enjoying stay orders since 2016, feared that the current notice interferes with their enjoyment of the stay. The Respondent’s counsel relied on the case of Republic –v- National Employment Authority & 3 Others Ex-parte Middle East Consultancy Services Limited [2018] eKLRin which the court declined to exercise its discretion in favour of an applicant who had not acted in good faith or where the Judge considers that an alternative remedy would have been pursued. It is the Respondent’s submission that the application is an abuse of the court process for having failed to comply with the provisions of the Physical Planning and Land Use Act and the Fair Administrative Action Act.

7. I have considered the application and the submissions made. In my view, the issues arising for determination are whether the court has jurisdiction to hear and determine these judicial review proceedings and secondly whether the Ex-parte Applicant is entitled to the judicial review order of prohibition sought.

8. The respondent contended that the orders sought are not available to the ex-parte applicant because there is an alternative remedy for the applicant, that of filing an appeal with the Liaison Committee pursuant to the provisions of Section 72 of the Physical Planning and Land Use Act, 2019. Further, that the applicant has not demonstrated what steps it has taken to have appeal filed in 2016 heard and determined.

9. It is trite law that the court in exercising its jurisdiction in Judicial Review proceedings is not acting as an appellate court and judicial review remedies are only available to a party who has no other avenue of redress or where the other available remedies are not efficacious. In Michael Mungai –v- Attorney General & 9 Others [2015] eKLR Odunga J. observed as follows regarding the nature of judicial review orders, and I agree:

...Judicial Review, it has been said time and again is a relief of last resort and ought not to be Treated as an alternative mode of redress to remedies available under the Civil Procedure or process.”

10. I am also persuaded by the observation by R.E Aburih, J. in Republic –v- Nairobi City County Government Ex Parte Ndiara Enterprises Limited [2017] eKLR in which it was stated as follows:-

“… It is also now settled law that where the constitution or any law provides a procedure for settlement of disputes, that procedure shall be followed before resort to the High Court or any other procedure provided by law. That, in essence, is the effect of Articles 50 (1) and 159 (2) of the Constitution which provides that:

“50 (1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent or impartial tribunal or body…”

11. In this case, the ex-parte applicant claims that it is the registered proprietor of that parcel of land known as subdivision 1096 (Orig. 66/2) Sec VI MN, which property abuts on the main Magongo – Nairobi Road. The Ex-parte Applicant states that vide an Enforcement Notice dated 30th September, 2020 issued under the Physical Land Use planning Act, 2019, the Respondent required the Applicant to remove certain illegal structures on its property, blocking access to Plot No. VI MN/182/30, and which were allegedly carried out without the grant of permission or following the conditions required under part IV of the said Act. The Ex-parte Applicant avers that a similar notice was issued previously by the Respondent under the Physical Planning Act 1996 (now repealed). That in reaction to the former notice, the Ex-parte Applicant duly lodged an appeal with the Physical Planning Liaison Committee, thereby staying the intended demolition pending the determination of the matter. The Ex-parte applicant states that the appeal is yet to be determined, but surprisingly, the Respondent has served upon the applicant yet another notice of intended notice of intended demolition dated 30th September, 2020. The Ex-parte Applicant contends that the latter notice and its intended consequences are arbitrary, capricious, informed by malice and in breach of the rules of natural justice. It is alleged by the ex-parte applicant that its legitimate expectation of a logical and fair conclusion of the process triggered by the notice of October 2016 has been stymied if not all together obliterated by the fresh notice of 30th September, 2020. The Ex-parte Applicant therefore seeks an order of prohibition to prohibit the Respondent from executing or effecting the enforcement Notice dated 30th September, 2020 served upon the Applicant and its tenants.

12. I have perused the said Enforcement Notice dated 30th September, 2020 marked as annexture “G” attached to the verifying affidavit. The court notes that the notice was to take effect on 14th October, 2020. The court further notes that the said notice expressly stated that if the applicant was aggrieved by the notice, the applicant “may appeal to the High Court as the case may be under the provisions of part IV of the Act before the aforesaid 14th day of October 2020, in which case the operation of the notice shall be suspended pending the final determination or withdrawal of the appeal.”

13. It is not in dispute that the impugned notice was issued pursuant to the Physical and Land Use Planning Act 2019. Section 72 (3) and (4) of the said Act provides as follows:

“(3) Where a person on whom an enforcement notice has been served is aggrieved by the notice, that person may appeal to the relevant County Physical and Land Use Planning Liaison Committee within fourteen days of being served with the notice and the committee shall hear and determine the appeal within thirty days of the appeal being filed.

(4) Any person aggrieved with the determination of the County Physical and Land Use Planning Liaison Committee may appeal to the court only on a matter of law and the court shall hear and determined the appeal within thirty days.”

14. From the above, it is clear that there is a clear procedure for redress provided under the Act where one is aggrieved with the issuance of a notice such as the one in this case. Thus, the Act provides for a forum for ventilation of grievances where one is aggrieved by an enforcement notice. In this case the applicant complains that a fresh notice was issued when an appeal on a previous notice is still pending. In my view, and I am in agreement with the Respondent’s submission, that the proper thing to do was to raise that issue before the Liaison Committee.

I am not persuaded that the pendency of the previous appeal would entitle the applicant to disregard the clear procedure provided for under the Act. In my view, the issue is not one for adjudication by way of judicial review proceedings as in the present case.

15. In Samson Chembe Vuko –v- Nelson Kilumo & 2 others [2016] eKLR, the court of Appeal, citing other decisions with approval, among them Speaker of the National Assembly –vs- Karume [2008] IKLR 425 where the court of Appeal held, inter alia:

“…where there is a clear procedure for the redress of any particular grievances prescribed by the Constitution or the Act of Parliament, that procedure should be strictly followed.”

The court of Appeal reiterated the same position in the case of Mutanya Tea & Coffee Company Ltd –vs- Shikara Limited & Another [2015] eKLR.

16. In addition, Section 9 (2) of the Fair Administrative Action Act provides:

(1) The High Court or a subordinate court under subsection (1) is expressly prohibited from and shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.

(3) The High Court or a subordinate court, shall if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under subsection (1).

(4) Notwithstanding subsection (3) the High court or Subordinate court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice…”

17. From the above provisions of the law and decided cases, it is clear that even the Fair Administrative Action Act pursuant to which the application herein has been brought requires that an applicant shows that he/she has exhausted the alternative remedies available under any other written law or avenue before resorting to court by way of judicial review.

The onus is on the applicant to demonstrate to the court that there exist exceptional circumstances to warrant his or her exemption from resorting to the available remedies, and application for such exemptions. In this case, no doubt, the applicant had an avenue for ventilating its grievances where the applicant was aggrieved by the enforcement notice dated 30th September, 2020 issued by the respondent. There is no evidence that the applicant lodged any such complaint or appeal to the Liaison Committee, the National Liaison Committee or to the court. The Physical Planning and Land Use Act provides elaborate mechanisms for resolution of disputes relating to enforcement notices and therefore no party is permitted to bypass those mechanisms and jump into judicial review court to obtain orders which are discretionary.

18. In the result, this court finds that the application herein is incompetent since the court has no jurisdiction to hear and determine the same. The Notice of Motion dated 3rd November, 2020 is hereby dismissed with costs to the Respondent.

DATED SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 14TH DAY OF JUNE, 2021.

____________

C.K. YANO

JUDGE

IN THE PRESENCE OF:

Yumna Court Assistant

C.K. YANO

JUDGE