[2021] KEELC 4471 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KISII

MISCELLENEOUS CIVIL APPLICATION NO 3 OF 2019 (JR)

IN THE MATTER OF: APPLICATION BY ALLOYS MATAYA MOSETI FOR JUDICIAL REVIEW

AND

IN THE MATTER OF: CLOSURE/STOP USE NOTICE

AND

IN THE MATTER OF: LR NO. KISII MUNICIPALITY/BLOCK/III/566

IN THE MATTER: INTERFERENCE WITH FREE POSSESSION, OCCUPATION AND USE

AND

IN THE MATTER: BREACH AND INTENDED INFRINGMENT OF COURT ORDERS

AND

IN THE MATTER: PUBLIC HEALTH ACT, CHAPTER 242, LAWS OF KENYA

AND

IN THE MATTER: FAIR ADMINISTRATIVE ACT, 2015

AND

IN THE MATTER OF: BREACH AND/OR INFINGMENT OF

THE FUNDAMENTAL AND/OR CONSTITUTIONAL RIGHTS OF THE APPLICANT

IN THE MATTER OF: ARTICLES 2(2), 10(2), 20(1) & (2), 23,27(1),

29(a), 48, 50(1), 165 & 258 OF THE CONSTITUTION 2010

BETWEEN

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

VERSUS

THE DIRECTOR OF PUBLIC HEALTH AND SANITATION, KISII COUNTY............1ST RESPONDENT

THE EXECUTIVE COMMITTEE MEMBER, PUBLIC HEALTH, KISII COUNTY....2ND RESPONDENT

KISII COUNTY GOVERNMENT.........................................................................................3RD RESPONDENT

JUDGMENT

1. By Notice of Motion Application dated 9th May 2019,the Ex parte Applicant brought this Judicial Review proceedings seeking for orders that;

1. …

2. The Honourable Court be pleased to grant an order of Judicial Review in the nature of certiorari to issue to remove unto the High Court and Quash the Decision and/or Recommendation of the Respondents herein and in particular, the 1st Respondent contained vide letter dated 3rd May 2019, ordering the closure/stop use of the premises situate and/or located on LR NO. KISII MUNICIPALITY/BLOCK III/566, which lawfully belongs to the Ex-parte Applicant, on the basis of allegations concerning the dispute on (sic) the approval of the Building Plans which were submitted to and approved by the Respondents.

3. The Honourable Court be pleased to grant an Order of Judicial Review in the nature of Prohibition, to issue prohibiting the Respondents, whether jointly and or severally from issuing any further Closure/Stop Notice to and in respect of premises situate on LR NO. KISII MUNICIPALITY/BLOCK III/556, which lawfully belongs to the Ex-parte Applicant, on the basis of the inter-alia Dispute on the approval of the Building Plans, which were submitted by the Applicant and duly approved by the Respondents, in accordance with the relevant laws.

4. Cost of this Application be borne by the Respondents jointly and severally.

5. Such further and/or other Orders be made as the court may deem fit and expedient.

2. According to the Applicant he is the lawful and bona-fide registered proprietor in respect of the property known as LR NO. KISII MUNICIPALITY/BLOCK III/566 (‘suit property’). He commenced construction of a massive developmental project by first drawing up a building plan and causing it to be approved by the Respondents as well as the Physical Planning Office in Kisi County. The building plans were similarly approved by the National Environmental Authority (NEMA). Following approvals by the relevant authorities the Applicant commenced and thereafter concluded the developmental project on the Suit Property. It is the Applicant’s case that he subsequently opened up the development project for business after obtaining requisite licenses including a single business permit from the Respondents. The Applicant also obtained licenses from the Directorate of Liquor licensing, Kisii County and further paid for the inspection of the premises by the 1st Respondent.

3. The Applicant avers that despite the foregoing compliance he has been issued with a Closure/Stop Use Notice which is calculated to interfere with the use and occupation of the Suit Property. He advanced that the 3rd Respondent has persistently threatened to disrupt the Applicant’s business on the suit property.

4. The Applicant’s contends that the issuance of closure notice is outside the jurisdiction or mandate of the Respondents. He alleges that he was not afforded an opportunity to be heard and the closure notice which was founded on allegation of fraud was not sufficiently investigated. He advanced that the Respondents are influenced by extraneous factors with the sole purpose of harassing the Applicant and the notice therefore constitutes to abuse of due process of the law.

5. It was the Applicant’s case that the actions of the Respondent amount to violation of the Applicant’s fundamental rights and freedom pursuant to Article 10, 20(1), 27, 29 (d) and 50 (1) of the Constitution 2010.

APPLICANT’S SUBMISSION

6. The Applicant identified three issues for determination:

i. Whether the Honourable Court has jurisdiction to entertain the instant Judicial Review suit?

ii. Whether the Respondents’ decision vide letter dated 3rd May 2019 is susceptible to Judicial Review as sought by the ex-parte applicant?

iii. Which orders are available to the ex-parte applicant?

7. On the first issue it was submitted that the letter dated 13th May 2019 which emanated from the 1st Respondent who occupies a public office and is bound to exercise public functions such as quasi judicial functions. They advanced that section 13 of the Public Health Act Chapter 242 Laws of Kenya prescribes the general duties of health authorities. They also cited the case of Republic v Secretary of firearms Licensing Board & 2 others ex-parte Senator Johnson Muthama [2018] eKLR where the court held that;

“…it thus goes without saying that where a public officer has been granted statutory powers, the exercise of such power is subject to the supervisory jurisdiction of the court…”

The Applicant submitted he was condemned unheard and thus the decision by the 1st Respondent was in contravention with Article 50 of the Constitution of Kenya.

8. On the second issue, it was submitted that the Respondent had not availed an opinion by a handwriting expert to verify their allegations contained in the letter dated 3rd May 2019. They relied on the cases of Kenya Revenue Authority & 2 Others v Darasa Investments Limited [2018] eKLR. It was submitted that in the case of Republic v Commissioner for Investigations & Enforcement Ex-parte Wananchi Group Kenya Limited [2014] eKLRthe court relied on the principle established by the Court of Appeal in Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001that:

“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…The court should not act as a Court of Appeal over the decider which would involve going into the merits of the decision itself-such as whether there was or there was not sufficient evidence to support the decision…

9. The Applicant contends that the decision by the Respondent was thus illegal, irrational and un-procedurally hence the decision ought to be quashed forthwith. Although the Public Health Act accords the 1st Respondent the authority to take necessary steps to safeguard public health, the decisions made must be lawful.

THE RESPONDENTS’ CASE

10. On 6th June 2019 the Respondents entered appearance and filed a Replying Affidavit deposed by Melitus Kabar, a Public Health Officer at Kisii County. He confirmed that the department of public health issued a closure/stop use notice as provided in the Building Code of the Local Government (Adoptive by-laws) (Building) Order 1968 and the Local Government Adoptive by-laws (Grade11 building) Order 1968.

11. It was their case that the Applicant never submitted building plans for review, verification and approval in accordance to the Building Code of the Local Government (Adoptive by-laws ) (Building) Order of 1968. They also advanced that the Respondent had never used the rubber stamp appearing on AMM2 and this essentially meant that the Applicant forged documents. They also took issue with the date of 4th November 2012 appearing on the documents as the day in question was a Sunday and not an official government working day.

12. They explained that the Applicant did not have a Completion Certificate and therefore could not obtain a license under the Food Drugs and Chemical Substance (Food Hygiene) Regulations 1978 Cap 254. The Applicant neither possessed a Health and Occupation Certificate which is required under the Public Health Act Cap 254 for premises to be operational. It was averred that because he lacked the two certificates he could not operate a public eatery and such operation would endanger the health of the members of public.

13. It was their case that the notice of motion filed by the Applicant should thus be dismissed.

ANALYSIS AND DETERMINATION

14. The crux of the Respondent’s case is that the closure/stop Notice dated 3rd May 2019 was issued because the building plan approval process was not followed, which the 1st Respondent detailed as follows;

“…depositing building plans in Health Office for approval, followed by site visit, then vetting and final County Building plan approval committee endorsement where minutes on approved building plan drawings are produced and filed.”

15. The Appellant on the other hand averred that other than having the building plans approved, he also sought and paid for inspection of the premises by the 1st Respondent so that they could confirm compliance. The Applicant availed a single business permit issued by the 3rd Respondent. The Applicant claims that in any case the 3rd Respondent’s action offends the provisions of the Fair Administrative Act, 2015 and that the Respondent’s issuance of the closure notice was ultra vires.

16. I must now turn to consider whether the Applicant’s right to Fair Administrative Action was infringed. At the onset, I must state that a court sitting on Judicial Review exercises asui generisjurisdiction which is very restrictive indeed, in the sense that it principally challenges the process, and other technical issues, like excessive jurisdiction, rather than the merits of the case, seeRansa Company Ltd vs. Manoa Francesca & 2 others [2015] eKLR). The Court of Appeal in the case of Municipal Council of Mombasa –vs- Republic & Umoja Consultants Limited – Civil appeal No. 158 of 2001 where it was held:

“Judicial review is concerned with the decision making process, not with the merits of the decision itself; that court would concern itself with such issues as to whether the decisions makers had the jurisdiction, whether the persons affected by the decisions were heard before it was made and whether in making the decisions the decision maker took into account relevant matters or did take into account irrelevant matters ...... the court should not act as a court of appeal over the decider which would involve going into the merits of the decision itself such as whether there was or there was not sufficient evidence to support the decision.”

17. Article 47 of the Constitution of Kenya provides:

(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

18. The issue raised by the 1st Respondent in their closure notice revolves around their alleged approval of the Applicant’s building plans and thereby impugning the legality of the Applicant’s business permit. Section 30 of the Physical Planning Act No. 6 of 1996 provides that no person shall carry out development within the area of a local authority without a development permission granted by the local authority. Section 29 (b) of the PhysicalPlanning Actstates that each local authority shall have the powerto consider and approve all development applications and grant all development permissions.The closure notice question, the authenticity of the approved building plans drawings held by the Applicant and the decision in the closure notice was arrived at after the consideration that the stamp appearing on the plans were forged.

19. It is evident that the decision culminating to the closure/stop notice was therefore an administrative action which was arrived at without considering the views of the Applicant.In Republic v Commissioner of Customs Services Ex parte Imperial Bank Limited [2015] eKLRthe court held that;

“50. The purpose of Judicial Review is to check that public bodies do not exceed their jurisdiction and carry out their duties in a manner that is detrimental to the public at large. It is meant to uplift the quality of public decision making, and thereby ensure for the citizen civilized governance, by holding the public authority to the limit defined by the law. Judicial review is therefore an important control, ventilating a host of varied types of problems. The focus of cases may range from matters of grave public concern to those of acute personal interest; from general policy to individualised discretion; from social controversy to commercial self-interest; and anything in between. As a result, Judicial Review has significantly improved the quality of decision making. It has done this by upholding the values of fairness, reasonableness and objectivity in the conduct of management of public affairs. It has also restrained or curbed arbitrariness, checked abuse of power and has generally enhanced the rule of law in government business and other public entities. Seen from the above standpoint it is a sufficient tool in causing the body in question to remain accountable.

51. Judicial Review is a constitutional supervision of public authorities involving a challenge to the legal validity of the decision.”

20. In this case the Respondent had already issued the Applicant with a business permit based on the approvals held by the Applicant. If there was any issue subsequently arising then the Respondents were required to notify the Applicant of the issue and call for his response thereto in strict observance of the rules of natural justice, before arriving at any decision. The Court of Appeal inRepublic vs. The Honourable Chief Justice of Kenya & Others Ex Parte Moijo Mataiya Ole Keiwua Nairobi HCMCA No. 1298 of 2004 held as follows:

“The content of natural justice is therefore flexible and variable. All that is fundamentally demanded of the decision-maker is that his decision in its own context be made with due regard for the affected parties’ interests and accordingly be reached without bias and after giving the party or parties a chance to put his or their case. Whereas some judges prefer to speak of a duty to act fairly rather than a duty to observe the rules of natural justice, often the terms are interchangeable. But it is now perhaps the case while a duty to act fairly is incumbent on every decision-maker within the administrative process whose decision will affect individual interests, the rules of natural justice apply only when some sort of definite code of procedure must be adopted. However flexible that code of procedure may be and however, much the decision-maker is said to be master of his own procedure, the rules of procedure are generally formulated as the rule against bias(nemo judex in sua causa) and in respect of the right to a fair hearing(audi alteram partem).”

In Justice Amraphael Mbogholi Msagha v Chief Justice & 7 Others Nairobi HCMCA No.1062 of 2004, [2006] 2 KLR 553the court expressed itself as follows:

“A decision is unfair if the decision maker deprives himself of the views of the person who will be affected by the decision. If indeed the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from essential principle of justice.”

21. In the end I find that the Applicant’s right to fair administrative action was thus infringed and will now proceed to consider the remedies available to the Applicant.

22. The Applicant seeks an order of certiorari quashing the decision of the Respondent contained in the notice dated 3rd May 2019 and an order of prohibition against the Respondents prohibiting them from issuing further closure/stop use notice in respect of the premises and cited and Republic v Commissioner for Investigations & Enforcement Ex-parte Wananchi Group Kenya Limited (supra) and Joram Mwenda Guantai v Chief Magistrate Nairobi [2007] eKLR.

23. In Kenya National Examinations Council vs. Republic Ex parte Geoffrey Gathenji Njoroge Civil Appeal No. 266 of 1996the court addressed various remedies available to as regards the grant of the said orders:

“Prohibition looks to the future so that if a tribunal were to announce in advance that it would consider itself not bound by the rules of natural justice the High Court would be obliged to prohibit it from acting contrary to the rules of natural justice. However, where a decision has been made, whether in excess or lack of jurisdiction or whether in violation of the rules of natural justice, an order of prohibition would not be efficacious against the decision so made. Prohibition cannot quash a decision which has already been made; it can only prevent the making of a contemplated decision…Prohibition is an order from the High Court directed to an inferior tribunal or body which forbids that tribunal or body to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. It lies, not only for excess of jurisdiction or absence of it but also for a departure from the rules of natural justice. It does not, however, lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings……………………….

……….Only an order ofcertiorarican quash a decision already made and an order ofcertiorariwill issue if the decision is without jurisdiction or in excess of jurisdiction, or where the rules of natural justice are not complied with or for such like reasons. In the present appeal the respondents did not apply for an order ofcertiorariand that is all the court wants to say on that aspect of the matter.

24. In Republic v Attorney General; Law Society of Kenya (Interested Party); Ex-parte: Francis Andrew Moriasi [2019] eKLRthe court held that;

“However, the Court cannot restrain the Respondent from making similar Circulars in future, so long as it undertakes its functions within the law, and the prayers seeking prohibition of similar Circulars is thus not merited and is speculative.”

25. Consequently, I find Application dated the 9th May 2019 partly meritorious and grant the following orders:

1. An order of certiorari is herein issued to bring to this Court for the purposes of quashingthe closure/stop use notice dated 3rd May 2019, requiring the Applicant to close/stop using premises situate and/or located on LR NO. KISII MUNICIPALITY/BLOCK III/566, which lawfully belongs to the Ex-parte Applicant.

2. The Applicant shall have the cost of this suit.

Dated, signed and delivered at KISII this 28th day of January 2021.

............................

J.M ONYANGO

JUDGE