[2017] KEHC 3530 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

(JUDICIAL REVIEW DIVISION)

JUDICIAL REVIEW CASE NO. 436 OF 2016

IN THE MATTER OF AN APPLICATION BY NYOIKE ISAAC, CHIEF VALUER

NAIROBICITY COUNTY GOVERNMENT FOR JUDICIAL REVIEW

ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF THE FINDINGS AND RECOMMENDATIONS IN THECINVESTIGATION

REPORT OF THE COMMISSION OF ADMINISTRATIVE JUSTICE (SERIAL NO. CAJ

NO. 33/2016)ON THE ALLEGED IRREGULAR ALLOCATION OF EASTLEIGH MARKET

TOPRIVATEDEVELOPERS TOUCHING ON THE APPLICANT

AND

IN THE MATTER OF THE FAIR ADMINISTRATIVE ACT 2015, THE CIVIL PROCEDURE

ACT AND RULES, AND THE COMMISSION ON ADMINISTRATIVE JUSTICE ACT, 2011

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

VERSUS

COMMISSION ON ADMINISTRATIVE JUSTICE.......RESPONDENT

NYOIKE ISAAC...............................................EX PARTE APPLICANT

JUDGEMENT

Introduction

1. The ex parte applicant herein moved this Court vide a Motion on Notice dated 22nd September, 2016 seeking the following orders:

1. That an order of Certiorari do issue to remove into the High Court and to quash all the findings and recommendations in the investigation report of the Commission of Administrative Justice (SERIAL NO. CAJ NO. 33/2016) on the alleged Irregular Allocation of Eastleigh Market to private developers touching on the Ex parte Applicant, Nyoike Isaac, Chief Valuer Nairobi City County, and further quashing the entire report for being a nullity in law.

2. That costs of this motion be borne by the Respondent.

Applicants’ Case

2. According to the ex parte applicant, the Chief Valuer of the Nairobi County Government, what provoked these proceedings was the publication of a report by the Respondent, hereinafter referred to as “the Commission” titled as “An Investigation Report on the Alleged Irregular Allocation of Eastleigh Market to Private Developers”issued in August, 2016.

3. According to the applicant the said report was to the effect that the applicant was culpable of abuse of power and breach of public trust for stating that Farah Mohamed Barrow and Ali Sheikh Mohamud were the registered and rateable owners of L. R. No. 36/VII/1037 (hereinafter referred to as “the suit property”) while the lease given the said persons had been revoked vide Gazette Notice No. 11951 of 19th December, 2008.

4. As a result the Commission recommended that the ex parte applicant be removed as the Chief Valuer of the County.

5. It was the ex parte applicant’s case that the said investigation was contrary to the statute due to the act that the Commission was expressly barred by section 30(c) of the Commission on Administrative Justice Act (hereinafter referred to as “the Act”) from undertaking the said investigation. This, it was contended was due to the fact that the entire dispute relating to the suit property was the subject of active court proceedings which the applicant enumerated.

6. It was contended that the Commission arrived at the said decision without considering relevant factors or by taking into account irrelevant ones. According to the applicant, its role is to carry out valuation on all registered properties within the jurisdiction of the county for the purposes of payment of rates and not to register properties. To him the suit property was registered in the names of the said third parties. It was therefore his case that he was not involved at all in the registration of the property and only became involved in the valuation thereof for the purposes of payment of land rates after the registration had been effected at the lands registry.

7. The applicant averred that there were numerous cases challenging the decision by the Registrar to cancel the lease in favour of the said third parties.

8. The applicant disclosed that despite is recommendation that the property be reverted to the Nairobi County Council, the Chief Valuer insisted that the status be maintained. It was contended that the said third parties filed Judicial Review Application No. 37 of 2009 a obtained stay orders in respect of cancellation of their lease hence the lese in their favour was not cancelled and the valuation roll was hence required to conform to the records kept at the Lands Registry which still reflected that the said parties were the registered owners of the suit property.

9. It was the ex parte applicant’s case that these factors were never considered by the Commission despite being notified of the same by the applicant.

10. The ex parte applicant further contended that he was never given a fair hearing since investigations begun with the result that the investigations were tainted with procedural unfairness.

Respondent’s Case

11. The application was however opposed by the Respondent.

12. According to the Respondent, on 15th December 2015 it received a complaint from representatives of a group of traders who had operated stalls at Eastleigh Market (LR. NO. 36/VII/1037), alleging irregular allocation of the market to private developers in the guise of Public-Private partnership initiative in 2008 by the then Nairobi City Council. Pursuant to the afore-mentioned complaint and in exercise of the investigative powers of the Respondent as set out above under Articles 59 and 252(1) (a) of the Constitution and Sections 8, 26, 27, 28 and 29 of the Act, the Respondent decided to undertake investigations into possible dereliction of duty, abuse of power, unfair treatment and injustice by the defunct City Council Officials in the allocation of land registered as LR 36/VII/1037 to private developers.

13. It was averred that as detailed in the Respondent’s Report titled “An Investigation Report on the Alleged Irregular Allocation of Eastleigh Market to Private Developer August, 2016”, the investigative process entailed the following:-

i. That in consonance with the provisions of Section 37 of CAJA, the Respondent first notified the Governor, Nairobi City County, vide a letter Ref: CAJ/IE/6/41/15 dated 17th December 2015 of its intentions to conduct investigations into the alleged irregular allocation of the market land to private developers.

ii. The Respondent thereafter visited various offices for investigations including the Nairobi City County, Survey of Kenya, Ministry of Lands, Kamukunji Sub-County Administration, Supreme Court, High Court, and the land in dispute at Eastleigh, 1st Avenue.

iii. The Respondent interviewed six Eastleigh Market traders, Senior Chief, Eastleigh North Location, Assistant Chief, Garage Sublocation, Assistant Chief, Eastleigh North, County Executive Committee for Land, Nairobi City Government, Chief Officer for Land, Nairobi City Government, Director, Social Services, Nairobi City Government, Senior Assistant Deputy Commissioner, Kamukunji Sub-County, Registrar of Lands, Director, Urban Planning and Housing, Nairobi City County, Director, Legal Affairs, Nairobi City Government, Former Town Clerk, Nairobi City Council, Former Mayor, Nairobi City Council.

iv. The Respondent recovered various documents in respect of matters in issue including a lease dated 29th January 2007 issued by the City Council of Nairobi to Mr. Ali Sheikh Mohamud and Farah Mohamed Barrow for land LR No. 36/VII/1037, a letter dated 2nd December 2008, from Director, Legal Affairs, City Council of Nairobi to the Chief Land Registrar indicating that the lease issued to Mr. Ali Sheikh Mohamud and Farah Mohamed Barrow for land LR No. 36/VII/1037 was obtained through misrepresentation/mistake and The Gazette Notice No. 11951 dated 19th December 2008 revoking the lease issued to Mr. Ali Sheikh Mohamud and Farah Mohamed Barrow for land LR No. 36/VII/1037.

14. It was averred that the Respondent wrote to the ex-parte Applicant vide a letter Ref: CAJ/IE/6/41/15(18) dated 21st April, 2016 and in response thereto, the Commission received the ex-parte Applicant’s letter Ref: VAL.430/VB.436/8/1/3/NNI/awk dated 4th May, 2016, asserting that his predecessor was responsible for the registration of the land in dispute to private developers. However, when the ex-parte Applicant was requested to provide documentary evidence to substantiate his claim, he failed to do so.

15. According to the Respondent, upon receipt of disclosure by the Applicant of the existing court cases, it did establish the following regarding the stated subject court cases as detailed in page 14 of the Report:

i. High Court of Kenya at Nairobi, Civil Suit No. 24 of 2007 and High Court Civil Suit No. 615 of 2008 were struck out by the ruling of Justice J.M Mutungi, dated 19th February, 2014, and later dismissed on 7th March, 2014.

ii. ELC, Civil Suit No. 782 of 2013 was also dismissed by the court, without proceeding to be heard on merit.

iii. Judicial Review Miscellaneous Civil Application No. 37 of 2009 was withdrawn on 9th September, 2015.

iv. High Court of Kenya at Nairobi, Civil Suit No. 589 of 2008, was withdrawn on 9th September, 2015.

v. Court of Appeal at Nairobi, Civil Appeal No. 129 of 2013, arising from H.C. Misc. C. No. 808 of 2008 was allowed, quashing the award Public Private Partnership tender to Golden Lime International Limited, for being unlawful, irregular and in contravention of the Public Procurement and Disposal Act, 2005.

16. Consequently, the Respondent found no bar to its jurisdiction and proceeded to do the investigations in accordance with the law. It was its case that it thereafter analysed all the statements/information and documentation retrieved during the investigations and came up with, inter alia, the following conclusions:-

i. According to documents recovered by the Respondent, the piece of land, LR. No. 36/VII/1037 measuring 0. 5116 Hectares (approx) is a public land vested in Nairobi City County.

ii. The subject piece of land was allocated by the defunct Nairobi City Council to individual traders allocating them space to operate various businesses on the said piece of land, LR. No. 36/VII/1037.

iii. The Nairobi City Council made double allocation of the said piece of land, LR. No. 36/VII/1037 to Mr. Ali Sheikh Mohamud and Farah Mohamed Barrow trading as Alfa Traders for 99 years starting 16 January 2007, and to Golden Lime International Limited for 45 years under a Public-Private Partnership Agreement starting 24th November 2008.

iv. The Registrar of Titles, Ministry of lands, Nairobi, revoked the lease issued to Mr. Ali Sheikh Mohamud and Mr. Farah Mohamed Barrow on the said piece of land, LR. No 36/VII/1037 vide a Gazette Notice No. 11951 dated 19th December, 2008.

v. The Respondent found the ex-parte Applicant culpable of abuse of power and breach of public trust by confirming that Mr. Ali Sheikh Mohamud and Mr. Farah Mohamed Barrow were the registered and rateable owners of the subject land while there were pending court cases and a Gazette Notice revoking the lease in question.

17. It was the Respondent’s position that it came up with, inter alia, the following recommendations as guided by relevant legislative framework on public land including Article 61(1)(2), 62(1)(d), 62(2)(a)(b) and the Fourth Schedule (Article 185(2), 186(1) and 187(2) of the Constitution; Sections 8(a)(b) and 12((2)(f) of the Land Act No. 6 of 2012; Sections 5(1)(a)(c)(e)(h), 5(2)(b)(c)(d)(e), 6(1)(2)(a)-(c), 6(3)(a) of the National Land Commission Act, 2012; Sections 5(1)(2)(c) of the County Governments Act No. 17 of 2012 and Sections 16(1), 21(2) of the Physical Planning Act.

i. Nairobi City County should issue cessation notice to Mr. Ali Sheikh Mohamud and Mr. Farah Mohamed Barrow directing them to immediately stop construction on the parcel of land, LR. No. 36/VII/1037.

ii. Nairobi City County should retake and develop the parcel of land, LR. No.36/VII/1037 into a modern market and give priority to the 403 traders or their successors.

iii. In the event that the County Government of Nairobi is not able to develop the property, it should legally negotiate for a proper Public-Private Partnership contract that secures the interest of the County Government and the traders.

iv. The Governor, Nairobi City County, should remove from office the ex-parte Applicant for gross abuse of power and breach of public trust.

18. It was averred that on 21st April 2016 after making the above conclusions and recommendations and bearing in mind that the same adversely mentioned various individuals including the ex-parte Applicant herein, the Respondent, in consonance with the provisions of Section 36 and 39(1) (b) of CAJA, notified all the named individuals (the ex-parte Applicant inclusive) of the adverse findings and recommendations and called on them to make presentations thereon before compiling and publishing the Report.

19. According to the Respondent, on the 26th April 2016 the ex-parte Applicant responded and acknowledged that he was fully involved and cooperated in the investigations.Upon conclusion of its investigations and in light of the ex-parte Applicant’s response, the Respondent proceeded and compiled the Report subject of the instant judicial review proceedings in August, 2016.

20. According to the Respondent:

i. The ex-parte Applicant’s averments are on merits and thus not subject of Judicial Review proceedings.

ii. In any event the ex-parte Applicant’s lease was cancelled and there is no court order in place invalidating the Registrar of Titles, Ministry of lands, Nairobi, revocation of the lease issued to Mr. Ali Sheikh Mohamud and Mr. Farah Mohamed Barrow on the LR. No 36/VII/1037 vide a Gazette Notice No.11951 dated 19th December, 2008.

iii. The subject of the Respondent’s investigations herein was not ELC Petition No. 482 of 2015 but the alleged maladministration by various public officers in the irregular and illegal alienation of Eastleigh Market to private developers.

iv. There was no pending court case relating to issues raised in in the report because the report was concerned maladministration and abuse of office by public servants.

v. The powers of the Respondent under section 31 of CAJA are not limited by any other provisions of law.

vi. The Report is lawful as it was compiled by the Respondent pursuant to its mandate outline earlier in this affidavit.

21. The Respondent asserted that the ex-parte Applicant was accorded an opportunity to be heard.

22. It was submitted on behalf of the Respondent that in the instant case, the Applicant has not demonstrated to this Court the elements of subjudice as provided in section 6 of the Civil Procedure Act. In the Respondent’s submission:-

i. The investigations that the Respondent did in relation to the ex-parte Applicant are not subject of any ongoing Court cases. The subject of the Respondent’s investigations was the alleged maladministration by the ex-parte Applicant as a public officer. The issues raised in Nairobi Constitutional Petition No. 482 of 2015 (now ELC Petition No. 1127 of 2015) are different from the subject of the investigations.

ii. The ex-parte Applicant is not a party to any of the cited cases being Nairobi Constitutional Petition No. 482 of 2015 (now ELC Petition No. 1127 of 2015).

iii. Section 30(c) of the Commission on Administrative Justice Act, 2011, was enacted to limit the jurisdiction of the Respondent to conduct investigations when there is pending Court case that is similar to the subject of the investigations. But in the instant case, there has not been exhibited any case pending in Court against the ex-parte Applicant for abuse of office. The cases exhibited have nothing touching on abuse of office by the ex-parte Applicant.

23. The Respondent’s case was that to uphold the ex-parte Applicant’s contention on sub judice would mean that the Respondent’s mandate to, amongst other things, investigate any conduct in state affairs or any act or omission in public administration in any sphere of Government, and complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct and further to deal with maladministration through conciliation, mediation and negotiation where appropriate, would be stultified by a party implicated in wrongdoing filing suits in which the Respondent was not a party and impleading those suits as defensive mechanisms to the Respondent power to do investigations. Again, bearing in mind that the Respondent was not a party to all Court cases that have been brought to the attention of the Court, the Court was urged to be persuaded by Majanja J’s holding in Dry Associates Limited v Capital Markets Authority & Another Interested Party Crown Berger (K) Ltd [2012] eKLR, at paragraph 77 where he stated that:-

“…The petitioner has also raised the issue that the investigation and decision by the CMA are subjudice in so far as there are civil proceedings pending in the High Court. CMA is not party to those proceedings hence the sub judice argument is devoid of merit. To uphold it would mean that the regulatory authority of CMA would be stultified by a party implicated in wrongdoing filing suits in which CMA was not party and impleading those suits as a defence to regulatory investigation. The mere existence of High Court civil suits cannot prevent CMA from carrying out its statutory duties.”

24. It was thus submitted that the case must fail under this head.

25. According to the Respondent, in consonance with the provisions of Section 36 and 39(1) (b) of CAJA, the ex-parte Applicant was given an opportunity to take part in the investigations and to respond to the findings and recommendations before they were included in the report.

26. To the Commission, the circumstances under which the investigation was conducted and the statutory mandate under which the Respondent acted clearly indicate that the ex-parte Applicant was given an opportunity to be heard. In so submitting it was guided by this Court holding in Jeremiah Gitau Kiereini vs. CMA & Another, Petition No. 371 of 2012, where Majanja J, stated at that:-

“The application of the substance of the rules of natural justice depends on the facts of each case and I would adopt the words of Lord Morris of Borth-y-Gest in Furnell v Whangarei High Schools Board [1973] AC 660 where he stated:

“There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the inquiry is acting, the subject matter and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice that have been used from time to time, but whatever standard is adopted, one essential is that the person must have a reasonable opportunity of presenting his case.”

27. The Respondent further relied on Selvarajan vs. Race Relations Board [1976] 1 All ER 12at 19 where Lord Denning held that:-

“…in all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on the persons affected by it. The fundamental rule is that, if a person may be subjected to pains and penalties, or be exposed to prosecution or proceedings or be deprived of remedies or redress, or in some way adversely affected by the investigation and report, then he should be told the case against him and be afforded a fair opportunity of answering it. The investigating body is however the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad road grounds are given. It need not name its informants. It can give the substance only.”

28. It was argued that the application must therefore fail under this head.

29. To the Respondent, the jurisdiction to grant any Judicial Review orders is discretionary and that depending on the circumstances of the case, the Court may or may not grant the same. The Respondent, being a statutory body, has established that it complied with its mandate in discharge of its functions, thus its decision should be upheld by this Court. As set out in the case of Republic vs. Judicial Service Commission ex parte Pareno (2004) 1 KLR 203 at 219, Nyamu J (as he then was) quoted with approval by the High Court in Republic vs. Kenya National Commission on Humans Rights Ex-Parte Uhuru Muigai Kenyatta [2010] eKLR:-

“…Even if a case falls into one of the categories where judicial review will lie the court is not bound to grant it; the jurisdiction to make any of the various orders available in judicial review proceedings is discretionary, What order or orders the court will make depends upon the circumstances of the case…”

30. The Court was therefore urged not to exercise its discretion in the ex-parte Applicant’s favour and the Respondent prayed that the Application be dismissed with costs.

Determination

31. I have considered the application, the affidavits in support of and in opposition to the application the submissions as well as the authorities relied upon and this is the view I form of the matter.

32. In this case, there are two grounds upon which the applications are based. The first ground is that the Respondent was barred by section 30(c) of the Commission on Administrative Justice Act from proceeding with the subject investigation. The second ground is that the Respondent contravened the rules of natural justice by not afforcing the applicants an opportunity of being heard.

33. That the position is that the Commission has no power to investigate a matter which is the subject of court proceedings was upheld in Republic vs. Commission on Administrative Justice & another Ex Parte Samson Kegengo Ongeri [2015] eKLR,where the Court stated that:

“It was further contended by the applicant that since there were pending proceedings before a Court of law in respect of the same matter, the 1st Respondent was barred from conducting investigations in respect of the same issues. Section 30(c) of the Act bars the Commission from investigating a matter pending before any Court or judicial tribunal. The 1st respondent has attempted to argue that the said provision does not bar investigation but only bars the taking of an action. In my view that position is incorrect. What that provisions bars in express terms is investigation. It has further been contended that since the 1st Respondent was unaware of the existing court proceedings, section 30(c) is inapplicable. With due respect the 1st Respondent is attempting to read into legislation what does not exist. The general rule is that a statute should not, in absence of express provision, be construed so that it deprives people of their accrued rights… I therefore do not see the reason why the word “investigate” used in section 30 of the Act ought to be substituted with the word “act”. The 1st Respondent is barred from investigating matters pending in Court knowledge or otherwise of such proceedings immaterial… Therefore even if the Commission had powers to investigate the nature of the complaints in issue but the Legislation under which it operates restricts its powers as was the case, in the instant case, the Commission would not have jurisdiction to embark on the said voyage unless the statutory bottlenecks had been removed or settled. A tribunal which has no jurisdiction to entertain a matter, it has been held, cannot purport to accord the respondent a fair hearing.”

34. It was the applicant’s case that the Respondent’s decision was based on irrelevant factors or was arrived at as a result of the failure to consider relevant factors. To the applicant, his position did not entail registration of land as his mandate was limited to valuation of properties based on the particulars of the properties. In this case, it was his case that the sit property was registered in the names of the third parties as there was in place an order staying the cancellation of the said parties’ leases.

35. As was held in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 and 55:

“A decision-maker will err by failing to take into account a relevant consideration or taking an irrelevant consideration into account. These grounds will only be made out if a decision-maker fails to take into account a consideration which the decision-maker is bound to take into account in making the decision or takes into account a consideration which the decision-maker is bound to ignore. The considerations that a decision-maker is bound to consider or bound to ignore in making the decision are determined by construction of the statute conferring the discretion. Statutes might expressly state the considerations that need to be taken into account or ignored. Otherwise, they must be determined by implication from the subject matter, scope and purpose of the statute”

36. In Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 was held:

“Judicial review is concerned with the decision making process, not with the merits of the decision itself: the Court would concern itself with such issues as to whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…”

37. In Zachariah Wagunza & another vs. Office of the Registrar Academic Kenyatta University & 2 Others [2013]eKLR this Court held that:

“Concerning irrelevant considerations, where a body takes account of irrelevant considerations, any decision arrived at becomes unlawful. Unlawful behaviour might be constituted by (i) an outright refusal to consider the relevant matter; (ii) a misdirection on a point of law; (iii) taking into account some wholly irrelevant or extraneous consideration; and (iv) wholly omitting to take into account a relevant consideration.”

38. The holding in the locus classicus of Associated Provincial Picture Limited v Wednesbury Corporation [1947] 2 All ER 680; [1948] 1 KB 223best summarizes the situation that has prompted the Ex Parte Applicant to seek the court’s intervention and protection in these proceedings, particularly in the words of Lord Greene MR at pages 681-682 thus:

“If, in the statute conferring discretion, there is to be found, expressly or by implication, matters to which the authority exercising the discretion ought to have regard, then, in exercising the discretion, they must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question; they must disregard these matters...Unreasonableness, attention given to extraneous circumstances, disregard of public policy and things like that has all been referred to as being matters which are relevant for consideration...For instance, a person entrusted with discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from consideration matters which are irrelevant to the matter that he has to consider. If does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably”...Similarly, you may have something so absurd that no sensible person could ever dream that it would lay within the powers of the authority...”

39. Similarly in HC. Misc. App No. 1769/2003 - R vs. Ministry of Planning Exparte Prof Kaimenyi it was held that:

“…where a body uses its power in a manifestly unreasonable manner, acted in bad faith, refuse to take relevant factors into account in reaching its decision or based its decision on irrelevant factors the court would intervene that on the ground that the body has in each case abused its power. The reason why the court has to intervene is because there is a presumption that where parliament gave a body statutory power to act, it could be implied that Parliament intended it to act in a particular manner.”

40. In this case the Respondent’s decision against the ex parte applicant seems to have been informed by the fact that though the Applicant contended that he was not the one who registered the third parties as the proprietors of the suit land, there was no evidence to that effect. With due respect this was not the proper approach. It was incumbent upon the Respondent to satisfy itself as to the role played by the ex parte applicant in the transaction. It was not for the ex parte applicant to prove that he played no role therein. By arriving at its decision the Respondent improperly shifted the burden of proof onto the ex parte applicant.

41. Apart from that the failure to consider the ex parte applicant’s role as a valuer before arriving at its decision in my view amounted to taking into account irrelevant factors and failing to consider relevant ones.

42. In the foregoing premises I find that the applicant’s motion is merited.

Order

43. In the premises the Motion dated 22nd September, 2016 succeeds and I issue an order of Certiorari removing to this Court for the purposes of being quashed and quashing all the findings and recommendations in the investigation report of the Commission of Administrative Justice (SERIAL NO. CAJ NO. 33/2016) on the alleged Irregular Allocation of Eastleigh Market to private developers touching on the Ex parte Applicant, Nyoike Isaac, Chief Valuer Nairobi City County, and further quashing the entire report for being a nullity in law in so far as the said findings, recommendations and the report relate to the ex parte applicant herein.

44. I also award the costs of these proceedings to the Applicant.

45. It is so ordered.

Dated at Nairobi this 18th day of September, 2017

G V ODUNGA

JUDGE

Delivered in the presence of:

Mr Ngatia for Miss Nungo for the Respondent

CA Ooko