[2010] KEHC 3739 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Miscellaneous Civil Application 10 of 2009

IN THE MATTER OF: AN APPLICATION BY LEAH AIDA WAMBETE FOR JUDICIAL REVIEW SEEKING ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF: PHYSICAL PLANNING ACT, CAP 286 LAWS OF KENYA CITY COUNCIL OF NAIROBI BY-LAWS

AND

IN THE MATTER OF: THE ENFORCEMENT NOTICE DATED 30TH JANUARY, 2009 BY THE CITY COUNCIL OF NAIROBI

BETWEEN

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

VERSUS

CITY COUNCIL OF NAIROBI................................................. RESPONDENT

EX-PARTE................................................................ LEAH AIDA WAMBETE

AND

ABIGAIL AYUMA SHIGANGA & 9 OTHERS................ INTERESTED PARTIES

RULING

The Ex-parte applicant herein was granted leave to institute proceedings by way of Judicial Review.

By a Notice of Motion dated 23rd February, 2009, under Section 8(2) of the Law Reform Act, Cap 26 Laws of Kenya and Order LIII Rule 3(1) of the Civil Procedure Rules, the applicant moved the court for the following orders:-

1. An order of certiorari to forthwith remove to the High Court and quash the decision of the Respondent made by way of an Enforcement Notice dated 30th January, 2009 directing the applicant to stop further construction on LR No.72/2212, Uhuru Gardens Nairobi and remove the structures constructed thereon.

2. An Order of Prohibition restricting the Respondent from enforcing the notice dated 30th January, 2009 issued to the applicant commanding the applicant to demolish the development on LR No.72/2212 Uhuru Gardens, Nairobi.

The grounds upon which the application is based are, inter alia, that the impugned decision was made without hearing the applicant and deprives the applicant the right to defend herself.

The Respondents’ decision to issue the said notice is said to be unlawful and/or unreasonable as the developments on the applicant’s said property had been approved by the Respondent and the construction works were being carried out in accordance with the plans duly approved and under the supervision of the Respondent. The conduct of the Respondent in issuing of the said notice was said to be unfair and oppressive to the applicant.

It is also the applicant’s case that the impugned decision was not made for a legitimate purpose of enforcing the law and preventing an illegal or unlawful act. It is also alleged to have been made maliciously for a collateral purpose, to assist the applicant’s neighbour by pre-empting the outcome of legal proceedings in HCCCC No. 558 of 2008 by the said neighbour against both the applicants and the Respondents seeking to stop the said developments.

In addition to the foregoing grounds, the applicant has sworn an affidavit and a statutory statement in support of the application.

The events leading to these proceedings are that, the applicant prepared plans for the development of her property and submitted the same to the Respondent for approval in accordance with the set procedures and the law. The plans were approved and the decision communicated to the applicant. The applicant also paid all the requisite charges.

From the material before me, the approval of the applicant’s plans was made on 29th July, 2008. By a letter Ref.CPD/DC/007231 dated 3rd January, 2009 the Respondent through its Director of City Planning wrote to the applicant in the following terms:-

“RE:CANCELLATION OF APPROVAL OF DEVELOPMENT

APPLICATION LR. NO.72/2212 UHURU GARDENS ESTATE,

LANGATA

I refer to the City Council of Nairobi approval of the development on the above referenced property.

It has been established that the approval was granted inadvertently as you knowingly misrepresented facts to this council to obtain approval. Further construction works have been executed contrary to the inadvertently approved plan.

Site visits have revealed that:-

-The property is located in Uhuru Gardens Estate, Langata area zone 10 where flats are not permissible while you are constructing flats in an area planned for single dwelling unit.

-That the envisaged development would greatly compromise the entire neighbourhood and their privacy since the neighbourhood is characterized by low level/single dwelling units (Maisonettes).

-The intended development is contrary to existing regulations governing development in zone 10 and is against public interest.

-The ground coverage is 50% and plot ratio of 75%. The construction far exceeds these ratios.

-Consequently the approval granted on 29th July, 2008 by this Council vide plan registration No. EL 467 is hereby cancelled under By-Law No.10 and withdrawn from City Council of Nairobi Building files and at no costs to the City Council of Nairobi.

-You are therefore advised to stop further construction forthwith to avoid legal action from the city council.”

On 30th January, 2009, the applicant received an Enforcement Notice from the Respondent ordering her to stop the said development and remove the structures. She was not aware how, when and where the Respondent reached a decision that the said construction works were illegal as referred to ion the Enforcement Notice.

It is the applicants’ case that she was not given a chance by the Respondent to be heard when the decision was made. In paragraph 18 of her verifying affidavit she states:-

“18. The decision is unreasonable, unfair and oppressive as I have incurred a lot of expenses to prepare the said plans, to obtain the Respondents approval and engage a contractor to undertake the works.”

Subsequently, on 27th July, 2009, the Interested Parties herein were joined as parties in these proceedings following a consent between the counsel appearing herein.

The respondent and the Interested Parties having filed their replying affidavits to the applicant’s Notice of Motion, it was agreed that all counsel file skeletal written submissions to address the contentious issues. This was done and I have had time to go through all the said submissions together with all the cited authorities. I do not deem it necessary to cite any or all the said authorities, but that should not be construed to mean they are wanting in substance. Indeed, my gratitude goes to counsel for the time and effort made to assist the court.

The orders such as those sought by the applicant are discretionary and may be granted if the court is persuaded the action(s) of the Respondent were made or reached inter alia, without jurisdiction, ultra vires, in breach of procedure and breach of rules of natural justice.

Judicial Review is also a special jurisdiction which may not be invoked where a party has an avenue to pursue any alleged cause of action through private law.

The Enforcement Notice served upon the applicant herein was under the Physical Planning Act Cap 286 Laws of Kenya. Section 3 of the Act defines Enforcement Notice as “a notice served by a Local Authority under section 38 on the owner, occupier on developer to comply with the provisions of that section.”

Section 38 of the Act sets out an elaborate procedure to be followed in the issuance, execution and determination of any grievances relating to Enforcement Notices. The said provisions read alongside sections 13 and 15 of the same Act reinforces the position that, before a party exhausts the procedure set out therein, any action in the High Court would be premature.

The question that arises is – is an Enforcement Notice a decision that compels a party to move the court to apply for the orders of Judicial Review? The Notice contains what the local authority considers to be the breach by the addressee. It also contains the requirements the addressee is supposed to undertake. It also sets out the timeline for compliance. More significant however is that part of the Enforcement Notice which reads:-

“If you are aggrieved by this notice you may appeal to liaison committee or High Court as the case may be under provisions of Part II of the Act...”

After filing this action, the applicant learnt that the Respondent had made a decision on 3rd January, 2009 cancelling the approval of the development plans. That decision is contained in the latter that I have cited hereinabove. It would appear the applicant received the letter on 9th February, 2009 after the Enforcement Notice had been served. This appears in the submissions filed on behalf of the applicant.

It is the plaintiffs’ case that there were two decisions. The first was made on 3rd January, 2009 to cancel the approved plans and the second on 30th January to enforce the decision of 3rd January, 2009.

The contents of the letter dated 3rd January, 2009 ere unequivocal. They left no doubt as to the position taken by the Respondent and the reasons therefor. On the other hand, the Enforcement Notice dated 30th January, 2009 provided avenues for redress. It is more of process as opposed to a decision. It was a process because the applicant was advised to take specified steps if she was aggrieved. A liberal construction of the contents of the two documents would lead one to logically conclude that whereas the letter of 3rd January, 2009 is clearly a decision, the Enforcement Notice of 30th January, 2009 cannot be said to be one.

It follows that, the decision of 3rd January, 2009 may be actionable while the Enforcement Notice of 30th January, 2009 may not. Having become aware of the Respondents decision of 3rd January, 2009 it is not clear why the applicant continued with the challenged of the Enforcement Notice. Granted, she was already in court and leave had been granted on the basis of the Enforcement Notice so served, there is always room for an amendment and/or withdrawal of pleadings.

Be that as it may, having observed that the said Enforcement Notice is a process and not a decision, it follows that Judicial Review jurisdiction is not available to the applicant. If however, I were to hold it was a decision, the averment of the applicant that she was not heard would not hold because the right to be heard was reserved in the same notice.

I am of the view that the applicant should have addressed the decision of 3rd January, 2009. The reasons she has decided not to peg her pleadings on the said notice may be discerned from the contents of the said letter. The decision by the Respondent incriminated the applicant for knowingly misrepresenting facts to the Respondent to obtain approval of her plans. As a party may not be allowed to benefit from his or her own wrongs, the applicant must have elected to proceed with this cause.

The applicant having failed to exploit and/or exhaust the mechanisms provided to address the Enforcement Notice, has no ground upon which to stand in Judicial Review Jurisdiction. If on the other hand she has any claim to raise as against the Respondent, there are avenues she may follow in private law. In that regard she is in safe hands of legal counsel.

On my part, I find that the Notice of Motion lacks merit. The Enforcement Notice has to be complied with. It cannot be ignored without resultant injustice on the other parties including the Interested Parties enjoined in these proceedings.

It follows the application by way of Notice of Motion dated 23rd February, 2009 is hereby dismissed with costs to the Respondents and the Third Parties.

Orders accordingly.

Dated, signed and delivered at Nairobi this26th dayofFebruary, 2010.

A. MBOGHOLI MSAGHA

JUDGE