[2018] KEELC 2136 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MAKUENI

JUDICIAL REVIEW CASE NO. 5 OF 2017

FORMERLY MACHAKOS JUDICIAL REVIEW CASE NO.98 OF 2014

IN THE MATTER OF: AN APPLICATION BY KONZA RANCHING AND FARMING CO-OPERATIVE SOCIETY LIMITED FOR LEAVE TO COMMENCE PROCEEDINGS IN THE NATURE OF JUDICIAL REVIEW

IN THE MATTER OF: ARTICLES 2, 10, 19, 20, 21, 23, 47, 64(B), 66, 67(H), 73, 258 AND 259 OF THE CONSTITUTION OF KENYA 2010

IN THE MATTER OF: SECTION 8 AND 9 OF THE LAW REFORM ACT, CAP 26, LAWS OF KENYA

IN THE MATTER OF: ORDER 53 OF THE CIVIL PROCEDURE RULES, 2010

IN THE MATTER OF: SECTIONS 4, 5, 24, 25, 26, 27, 28 AND 41 OF PHYSICAL PLANNING ACT, CAP 286 (REV 2012)

IN THE MATTER OF: SECTION 2 ENVIRONMENT MANAGEMENT AND COORDINATION ACT (EMCA) 1999

BETWEEN

REPUBLIC..........................................................................................................APPLICANT

-VERSUS-

HONOURABLE ATTORNEY GENERAL............................................1ST RESPONDENT

NATIONAL LAND COMMISSION....................................................2ND RESPONDENT

DIRECTOR OF PHYSICAL PLANNING...........................................3RD RESPONDENT

PRINCIPAL SECRETARY MINISTRY OF LANDS,

HOUSING AND URBAN DEVELOPMENT.......................................4TH RESPONDENT

NATIONAL ENVIRONMENT MANAGEMENT

AUTHORITY..........................................................................................5TH RESPONDENT

PRINCIPAL SECRETARY MINISTRY OF

INFORMATION AND COMMUNICATION.................................... 6TH RESPONDENT

PRINCIPAL SECRETARY MINISTRY OF INDUSTRIALIZATION

AND ENTERPRISE DEVELOPMENT..................................................7TH RESPONDENT

KONZA TECHONOPOLIS DEVELOPMENT

AUTHORITY.......................................................................................INTERESTED PARTY

EX-PARTE

KONZA RANCHING AND FARMING CO-OPERATIVE SOCIETY LIMITED

RULING

1. On the 19th June, 2014, the Ex-parte Applicant filed the Notice of Motion Application dated the same day for judicial review orders. The decision sought to be reviewed was made by the Director of Physical Planning where the Director degazetted the moratorium of Konza Techno City 10 sq km Buffer Zone area as a special planning area vide the Gazette Notice dated 28th February, 2014. Before the matter could be heard, the third Respondent and the Interested Party moved the Court through their notices of Preliminary Objection dated 21st and 27th October, 2014 and filed in Court on the 22nd and 29th October, 2014 respectively.

2. The third Respondent’s Notice of Preliminary Objection raised the following points:-

a) That the Court has no jurisdiction to entertain this matter in the first instance.

b) That this suit has been filed in total disregard of the provisions of Section 10(2) of the PhysicalPlanning Act Cap 286 of the Laws of Kenya.

3. The Interested Party’s Preliminary Objection raised five (5) points namely:-

a) That the application is misconceived and does not lie.

b) That the application is an abuse of the court process.

c) That the High Court has no jurisdiction to entertain the intended application for reasons that the applicant seeks orders against a decision that was arrived at more than six months after the date of the original notice declaring Konza Techno City and 10 km radius buffer zone as a special planning area.

d) That the application ought to have restricted its description against which the said orders are being sought to the Konza Techno City Buffer Local Physical Development Plan Zone.

e) That the application be struck out with costs.

4. The third Respondent’s submissions were that the Physical Planning Act has provided mechanisms to address disputes such as the one complained of by the Ex-parte Applicant.The mechanisms are according to the Counsel were the National Physical Planning Liaison Committee and other Liaison Committees. That the functions of the former and the latter are provided for under Sections 10(1) and (2) of the Physical Planning Actrespectively. The Liaison Committees also sit in appeal over the decisions of the Director of Physical Planning concerning any physical developments plant as is provided under Section 13 of the Act. Appeals from the Liaison Committees lie with the National Physical Planning Liaison Committee. That by virtue of Section 15(4) of the Act, the role of the High Court sitting as an appellate court for appeals arising from the decisions of the National Physical Planning Liaison Committee is also recognized.

5. The Counsel for the third Respondent submitted that the Liaison Committee is the best suited forum in the first instance to preside over the complaints against the Director of Physical Planning arising from the exercise of his duties. The Counsel pointed out that the Ex-parte Applicant has not exhibited any attempt of having approached the Liaison Committee and as such, it would be premature for this Court to assume jurisdiction in the first instance.

6. The third Respondent supported the Interested Party’s Preliminary Objection in that the Application by the Ex-parte Applicant was filed a year after the decision that is sought to be quashed was made contrary to the provisions of Order 53 Rule 2 of the Civil Procedure Rules.

7. The submissions by the Interested Party were that the Ex-parte Applicant’s prayer for certiorari and prohibition orders against decisions of the third and fourth that were made on 20th December, 2013 do not lie since the application is brought to Court after 6 months from the date when the decisions were made. The Counsel cited Section 9(3) of the Law Reform Act and Order 53 Rule 2 of the Civil Procedure Rules which set the timelines of filing of an application for review within six months.

8. The Counsel went on to submit that the prayer for prohibitory orders is predicated on the prayers for orders of certiorari which is time barred. The Counsel added that the Ex-parte Applicant is timed for attempting to prohibit the second, third, fourth and fifth Respondents from restricting the Ex-parte Applicants’ members/shareholders dealings on the 10 sq km Buffer Zone yet the restriction had already taken place on the 22nd June, 2012 and finally on the 20th December, 2013 when the said dealings became subject to the Local Physical Development Plan. The Counsel further submitted that if the Ex-parte Applicant’s prayers are granted, they would be detrimentalto good administration and order as far as Konza Techno City and Buffer Zone is concerned.

9. Regarding the third Respondent’s Notice of Preliminary Objection, the Counsel for the Interested Party submitted that the Ex-parte Applicant’s Application is an abuse of the court process as there was an immediate and alternative remedy provided for which was at liaison committee level. The Counsel added that liaison committees are well versed in the instant dispute and that would have been the best avenue to take before seeking audience before this Court.

10. The submissions by the Counsel for the Ex-parte Applicant were that the Court has jurisdiction. The Counsel went on to submit that what matters in a Preliminary Objection is enunciated in various authorities. The Counsel began with the case ofHon. Uhuru M. Kenyatta Vs. Nairobi Star Ltd in Petition No.187/2012where Isaac Lenaola, J (as he then was) held that a Preliminary Objection has to raise a pure point of law and assumption that the facts are correct. The Counsel added that if the facts are to be ascertained, the same cannot be raised.

11. The Counsel went on to submit that the question is whether the Applicant is entitled to judicial review to quash the third Respondent’s decision in degazetting the moratorium of Konza Techno City Buffer Zone vide a special planning notice of 28th February, 2014. He also posed the question whether jurisdiction can be challenged as a matter of law. The Counsel cited the case of Eunice Kibuja Vs. Mwingi & Ringera Kibunja in Civil Appeal No.103/96 (1996) KLR 489where the Court of Appeal held that the Court will only make a finding upon the evidence before it. The Counsel further cited the case of Omondi Vs. NBK (K) Ltd. [2001] EA 177 where the Court observed that in order to determine a point of law, it will be at liberty to look at the pleadings and all the relevant matter in respect thereof.

12. The Applicant’s Counsel was of the view that in raising the Preliminary Objection, the Respondent ascertains the facts in the Applicant’s Notice of Motion are true.

13. Regarding the alternative mode of how the Applicant should have handled the dispute, the Ex-parte Applicant’s Counsel submitted that Section 10(2) of the Physical Planning Act Chapter 286 provides jurisdiction to the Physical Planning Liaison Committee only on matters touching on merit of the case. The Counsel added that in matters ofquestion of legality and administrative fairness of decision making process, the proposed committee is not the appropriate body or tribunal which can undertake the task. TheCounsel went on to submit that the issue of interpretation of the constitution will arise and are raisedin the application which the committee cannotinterpret.

14. Further the Counsel submitted that the issue of jurisdiction of the Court was dealt with in thecase of Mumias AgriculturalTransporters Ltd. Vs. Chairman Agricultural Contractors in Nairobi HCC No.786/1996 where it was held that the High Court jurisdiction is unlimited and cited the case of Kitololo Vs. KRA in HCC No.1969/1996 where Mbito, J stated that any purported ousting of High Court jurisdiction is null and void. The Counsel went on to submit that in the case of Mukisa Biscuit Manufacturing Ltd Vs. West End Distributors Ltd [1969] EA 696 the Court noted that there is need to exercise extreme caution when dealing with ouster clause. The Counsel went on to say the ouster clause was also considered in the case of Adero & Another Vs. Ulinzi Sacco Ltd (2002) KLR 577where Ringera, J (as he then was) held that a Tribunal is not a Subordinate Court but a quasi-judicial administrative body formed for settlement of specified disputes and reiterated that in the matter before this Court, the liaison committee cannot deal with constitutional matters. He said that the objection on jurisdiction would have been merited if the application was challenging the merit of the decision of the Director of Physical Planning.

15. The Counseltermed the authorities relied upon by the third Respondent asnot being relevant since they are based on the notion that the Application seeks to challenge the merit of decision making culminating in the approval of the plan in question.

16. Regarding the Interested Party’s PreliminaryObjection, the Ex-parte Applicant’s Counseltermed it as one that is against the certiorari reliefs impugning the third Respondent/Cabinet Secretary Ministry of Lands in preparing and approving Konza Techno City 10 kms Buffer Zone area which according to the Counsel is not what the Ex-parte Applicantseeks to review. On the issue of instituting judicial review within six months, the Ex-parte Applicant’s Counsel submitted that PhysicalPlanningassumes full force of the law once it is approved and gazetted. The Counsel pointed out that the approval bythe Cabinet Secretary was done on the 20th December, 2013. TheCounsel went on to submit that the Judicial Review was within time in challenging the process which began over two years prior to filing of the application. The Counsel added that time started to run when the decision was in effect made on 30th December, 2013 and gazetted on a later date. The Counsel was of the view that determination on whether to apply for leave should be made with reference to the approval by the Cabinet Secretary and that whether the Court decides to work with the date of 23rd December, 2013 the Applicant was within time to seek leave to lodge Judicial Review as six months hadn’t lapsed since the decision was made. The Counsel added that in determining when the applicationforleave for order of certiorari was made, the Courtwill takerecognizance of the date of the approval of Konza Techno City Buffer Zone was gazetted as is required by Section 28 of the Physical Planning Act. The Counsel pointed out that since there was no gazette notice, there is no decision to be quashed.

17. In reply the Counsel for the third Respondent referred to the case ofRepublic Vs. Judicial Service Commission Ex-parte Pareno (2004)1KLR 303 a page 219 where Nyamu, J(as he then was) while quoting the Supreme Court Practice 1997 volume 53/1-14/14 which stated thus;

“A Judicial Review Court cannot also assume appellate jurisdiction…… the Court will not, however on judicial review application act as a Court of Appeal from the body concerned”.

The Counsel reiterated that contrary to the submissions that the local liaison committee had no jurisdiction, he was of different view. The Counsel went on to submit that the invocation of the constitution does not clothe this Court with jurisdiction and urged the Court to disregard the Applicant’s submissions. The Counsel also cited the case of the owners of motor vessel ‘Lillian S’ Vs Caltex Oil (Kenya) Ltd [1989] KLR 1 at page Nyarangi JA stated;

“I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step.”

The Counsel submitted that from the Lilian’s case, this court should draw its attention to Section 15(4) of the Physical Planning Act and determine that it can only act as an appeal court. The Counsel went to submit that none of the authorities by the Applicant have addressed the existence and functioning of liaison committees and urged the Court to disregard the same.

18. On his part the Counsel of the Interested Party urged the Court to disregard the Preliminary Objection in as far as it delved into the merits of the application. In that regard, the Counsel submitted that the decision in Uhuru Kenyatta’s case was cited out of context and should therefore be disregarded as the Interested Party has raised pure point of law.

19. On the submission by the Counsel for the Ex-parte Applicant that his client was not affected by the process except at the point of approval, the Interested Party’s Counsel referred to the first gazette notice of 22nd June, 2012 which placed moratorium on the Applicant’s property. The Counsel added that subsequent gazette notices issued by the third Respondent and dated 14thJune, 2013 and 28th February 2013 were notifications of completion of Local Physical Development Plan and that the gazette Notices in question did not lift the moratorium. The Counsel submitted that the Applicant could not do anything because of the moratorium. The Counsel was of the view that even if the approval of the Local Physical Development Plan by the fourth Respondent dated 20th December, 2013, were to be challenged, the moratorium was still in place as land could be dealt with. The Counsel went on to submit that even if the approval by the fourth Respondent was not published, it is still a process which remains valid. The Counsel pointed out that the Applicant has not understood the gazette notice of 14th June, 2013 which was a completion of Physical Development Plan. The Counsel was of the view that even if the Applicant’s arguments that the sixty days began to run from 14th June, 2013 or if it started to run from 25th October, 2013 no objection was filed.

20. I have read the submissions which were filed by the Counselfor the third Respondent and the Counsel for the Interested Party in support of their Notices of Preliminary Objections. I have also read the submissions by the Ex-parte Applicant’s Counsel together with the Proceedings that were recorded by my brother, C. Kariuki, J and I am of the view that the grounds raised in the twoNotices of Preliminary Objection can be condensed into two as follows:-

a) Whether the Court has Jurisdiction to entertain this Application,

b) Whether the Application offends the provisions of Order 53 Rule 2 of the Civil Procedure Rules and,

Whether the Court has jurisdiction to entertain the Application

21. The third Respondent and the Interested Party have submitted that the Ex-parte Applicant bypassed the procedure provided for under the Physical Planning Act. They contend that the Applicant should have pursued the appeal against the decision of the Director of Physical Planning through the National Physical Planning Liaison Committee as provided for under Section 13 of the Physical Planning Act, Chapter 286 of the Laws of Kenya.

22. The above mentioned section provides as follows:-

Section 13(1) Any person aggrieved by a decision of the Director concerning any Physical Development Plan or matters connected therewith, may within sixty days of receipt by way of notice of such decision, appeal to the respective liaison committee in writing against the decision in such manner as may be prescribed.

(2) Subject to subsection (3), the liaison committee may reverse, confirm or vary the decision appealed against and make such order as it deems necessaryor expedient to give effect to its decision.

(3) When a decision is reversed bythe liaison committee it shall, before making any order under sub-section (2), afford theDirector an opportunity of making representations as to any conditions or requirements which in his opinion ought to be included in the order, and shall afford the appellant an opportunity to replying to such representations.

23. Further, Section 15(1) of the same Act provides as follows;

Any person aggrieved by a decision of a liaison committee may, within sixty days of receipt by way of the notice of such a decision, appeal to the National Liaison Committee in writing against the decision in the manner prescribed.

24. It seems to me that the Ex-parte Applicant chose not to follow the procedurelaid down in Sections 13 and 15 of the Physical Planning Act but instead moved the Court following the degazettment of the moratorium of Konza 10 sq km Buffer Zone area as a special planning area by the Director of Physical Planning. In the case of the Speaker of the National Assembly Vs. Hon. James Njenga Karume [2008] 1KLR 425 the Court of Appeal held that;

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

25. In thecase of Owners of Motor Vessel “Lilian S” Vs. CaltexOil (Kenya) Ltd (1989) 1KLR Nyarangi, JA stated thus;

“Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs its tools in respect of the matter before me at the moment it holds the opinion that it is without jurisdiction.”

26. Whether or not the Ex-parte Applicant was afraid that the Liaison Committee would have been biased against him, it is clear that under the provisions of Section 15(4) of the Physical Planning Act, he would have had a chance to move this Court to sit as an appellate court arising from the decision of the National Physical Planning Liaison Committee.

27. I hold that the Ex-parte Applicant ought to have followed the clear procedure provided for under the Physical Planning Act for the redress of his grievance against the Director of Physical Planning.

Whether the Application offends the provisions of Order 53 Rule 2 of the Civil Procedure Rules.

28. TheInterested Partyclaims that the application for judicial review is time barred. He is supported bythethird Respondent. On the other hand, the Ex-parte Applicant contends that the Application was filed within time. A perusal of the proceedings herein shows that the applicants filed their Chamber Summons for leave to apply for orders of certiorari, mandamus and prohibition on the 19th June, 2014. The declaration and/or notice lifting the moratorium on Konza Techno City 10 sq km buffer Zone as a special planning area is dated 28thFebruary, 2014.

29. Under Order 53 rule 2 of the Civil Procedure Rules,it is provided as follows;

Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, decree, convictions or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceedings or such shorter period as maybe prescribed by any Act; and where the proceeding is subject to appeal and a time is limited bylawfor bringing of the appeal, the Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired.

30. My reading of Order 53 Rule 2 of the Civil Procedure Rules clearlyshows that the Application by the Ex-parte Applicant was filed within time. It would have been premature for the Ex-parte Applicant to move the Court before the lifting of the moratorium was done by the Director of Physical Planning. In my view, the arguments by the Interested Party and the third Respondent are therefore misplaced.

31. Arising from the foregoing, my finding is that the Preliminary Objection succeeds in ground one. In the circumstances, I hold that this Court has no jurisdiction to entertain the Application and I proceed to strike it out with costs to the Respondents and the Interested Party.

Signed, Dated and Delivered at Makueni on this 31stDay of July,2018.

MBOGO C.G.,

JUDGE.

In the presence of;

Mr. Orina for the Ex-Parte Applicant

No appearance for the Respondents

No appearance for he Interested Party

Mr. Kwemboi – Court Assistant

MBOGO C.G.,

JUDGE.