[2025] KEELC 48 (KLR)

Republic v Nairobi City County; Ibrahim (Exparte Applicant) (Environment and Land Judicial Review Case 4 of 2023) [2025] KEELC 48 (KLR) (16 January 2025) (Judgment)

Neutral citation: [2025] KEELC 48 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Judicial Review Case 4 of 2023

MD Mwangi, J

January 16, 2025

Between

Republic

Applicant

and

Nairobi City County

Respondent

and

Abdullahi Abdirahman Ibrahim

Exparte Applicant

Judgment

Background 1. Vide the Notice of Motion dated 12th January 2024, brought under the provisions of Section 8 and 9 of the Law Reform Act, Order 53 rule 1 of the Civil Procedure Rules and part III of the Fair Administrative Action Act, the ex parte Applicant prays for orders;a.That an order of certiorari do issue to remove to this Honourable Court the enforcement notice dated 21st November 2023 issued by the Respondent (Nairobi City County Government) for purposes of being quashed.b.That an order of prohibition do issue prohibiting the Respondent from proceeding to enforce the enforcement notice dated 21st November 2023. c.That costs of this application be awarded to the ex-parte Applicant.

2. The Notice of Motion is premised on the grounds on the face of it, the Statutory Statement dated 28th November 2023, and the Verifying and Supporting affidavit of Abdullahi Abdirahman Ibrahim.

3. The ex-parte Applicant is a resident and chairman of Utamu Estate. He alleges that the Respondent served him an enforcement notice to remove the developments on L.R. No. 5908/8/180 within 14 days from the date of the enforcement notice dated 21st November 2023. He asserts that the enforcement notice was issued on a non-existent property since L.R. No. 5908/8/180 had changed character on subdivision.

4. In any case, the ex parte Applicant affirms that he and the other residents of Utamu Estate bought the suit property which was already subdivided and went ahead to erect structures therein in conformity with the use of the land which was for residential purposes.

5. The ex parte Applicant asserts that he and the other residents of Utamu Estate were not afforded fair administrative action before a decision was made to issue them the enforcement notice contrary to provisions of Article 47 of the Constitution and Section 4 of the Fair Administrative Action Act. They were not given a hearing by the Respondent before the issuance of the enforcement notice.

6. The ex parte Applicant reiterates that he has been deprived of his right to natural justice and equal protection of the law as guaranteed under Article 27 of the Constitution. He therefore urges the court to grant the orders sought in his application.

Response by the Respondent 7. The Respondent’s response to the Notice of Motion by the ex-parte Applicant was by way of a preliminary objection dated 1st March 2024. The Respondent in the preliminary objection averred that the ex-parte Applicant had not complied with the Sections 61 and 72 of the Physical Land Use and Planning Act (PLUPA), 2019. He had not exhausted the established dispute resolution mechanisms therein before moving to this court.

8. The Respondent asserted that the application was therefore premature and should be struck out.

Court’s direction. 9. The advocate for the Respondent on two occasions sought leave of the court to file a substantive response to the application by the ex parte Applicant in form of a replying affidavit. That was on 15th April 2024 and on 20th June 2024. He however, despite the Court’s indulgence, did not manage to file the replying affidavit owing to what he referred to as lack of substantive instructions from his client.

10. The court proceeded to give directions on 17th September 2024 directing that the application be canvassed by way of written submissions. Only the ex parte Applicant complied with the directions on filing of submissions. I have had the opportunity to read and consider the submissions filed by the Applicant which form part of this court’s record.

Issues for determination. 11. Considering the pleadings filed in this matter including the preliminary objection by the Respondent and the submissions filed, the issues for determination in this court’s view are;a.Whether the court has jurisdiction to determine this matter.b.Whether the ex –parte Applicant’s Notice of Motion is merited.c.Whether ex –parte Applicant is entitled to the orders of certiorari and prohibition.d.What orders should issue on courts?

Analysis for determination a. Whether the court has the jurisdiction to entertain and determine this matter. 12. As pointed out earlier on, the Respondent raised a preliminary objection against the Notice of Motion by the ex-parte Applicant. The basis of the preliminary objection was that the ex-parte Applicant had not exhausted the statutory dispute resolution mechanisms as provided under Section 72 of PLUPA. The application, according to the Respondent is therefore premature and the court lacks jurisdiction to entertain it.

13. The issue raised in the preliminary objection by the Respondent is an issue that this court had raised with the ex-parte Applicant at the stage of seeking leave to file these judicial review proceedings. The issue was addressed in the further affidavit of the ex-parte Applicant filed on 11th December 2023.

14. In the said affidavit, the ex-parte Applicant deposed that he was aware that the first part of call by a person aggrieved by an enforcement notice as the one issued by the Respondent herein was to the relevant county Physical and Land use Planning Liaison Committee as provided for under Section 72 of PLUPA. However, at the moment of filing the application, the Nairobi County Physical and Land use Planning Liaison Committee was not duly constituted after the terms of some of its members expired in June 2023.

15. The deponent further deposed that though the acting County Secretary of the Nairobi City County had gazetted the members of the Liaison Committee on 7th December 2023 vide Gazette Notice No. 16924, the committee was yet to be operationalized and there was no information to the public communicating when it was to commence its sittings. That according to the deponent, justified the ex-parte Applicant’s decision to seek relief before this court.

16. The Fair Administrative Action Act allows an aggrieved person, aggrieved by any administrative action or decision to apply for review by way of judicial review of such administrative action or decision before the court in accordance with Section 8 of the Act or a tribunal in exercise of its jurisdiction conferred in that regard under any written law.

17. The grounds upon which an application for judicial review may be premised on are set out under Section 7(2) as follows;a.the person who made the decision-i.was not authorized to do so by the empowering provision;ii.acted in excess of jurisdiction under any written law;iii.acted pursuant to delegated power in contravention of any law prohibiting such delegation;iv.was biased or may reasonably be suspected of bias; orv.denied the person to whom the administrative action or decision relates, a reasonable opportunity to state the person’s case;b.a mandatory and material procedure or condition prescribed by any empowering provision was not complied with;c.the action or decision was procedurally unfair;d.the action or decision was materially influenced by an error of law;e.the administrative action or decision in issue was taken with an ulterior motive or purpose calculated to prejudice the legal rights of the applicant;f.the administrator failed to take into account relevant considerations;g.the administrator acted on the direction of a person or body not authorized or empowered by any law to give such directions;h.the administrative action or decision was made in bad faith;i.the administrative action or decision is not rationally connected to-i.the purpose for which it was taken;ii.the purpose of the empowering provision;iii.the information before the administrator; oriv.the reasons given for it by the administrator;j.there was an abuse of discretion, unreasonable delay or failure to act in discharge of a duty imposed under any written law;k.the administrative action or decision is unreasonable.l.the administrative action or decision is not proportionate to the interests or rights affected;m.the administrative action or decision violates the legitimate expectations of the person to whom it relates.n.the administrative action or decision is unfair; oro.the administrative action or decision is taken or made in abuse of power.

18. Though Section 9, of the Fair Administrative Actions Act requires an Applicant for purposes of judicial review to first exhaust the mechanisms, including internal mechanisms for appeal and review and all remedies available under any written law, Sub-section (4) allows the court in exceptional circumstances and on an application by the Applicant to exempt a person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.

19. In the case of Kenya Bureau of Standards and 4 others; Ex-parte United Millers Limited; Department of Health Services, Nakuru County (interested party), Mativo J (as he then was ), stated that,“What constitutes exceptional circumstances depends on the facts of each case and it is not possible to have a closed list. Article 4 of the Constitution is heavily borrowed from the South African Constitution. In addition the FAA Act is heavily borrowed from the South African equivalent legislation, hence, jurisprudence from South African Courts interpreting similar circumstances and provisions are of greater value, relevance and may be useful guidance.”

20. The judge proceeded to cite with approval the decision in the South African case of MV Ais Mamas Seatrans Maritime – vs- Owner MV Ais Mamas & ano 2002(6) SA at 156H, where the court stated as follows;i.“What is ordinarily contemplated by the words ‘exceptional circumstances’ is something out of the ordinary and of an unusual nature; something which is accepted in the sense that the general rule does not apply to it; something uncommon, rare or different…ii.To be exceptional the circumstances concerned must arise out of, or be incidental to, the particular case.iii.Whether or not exceptional circumstances exist is not a decision which depends upon the exercise of a Judicial discretion; their existence or otherwise is a matter of fact which the court must decide accordingly.iv.Depending on the context in which it is used, the word ‘exceptional’ has two shades of meaning; the primary meaning is unusual or different; the secondary meaning is markedly unusual or specially different.v.Where, in a statute, it is directed that a fixed rule shall be departed from only under exceptional circumstances, effect will generally speaking, best be given to the intention of the legislature by applying a strict rather than a liberal meaning to the phrase, and by carefully examining any circumstances relied on as allegedly being exceptional. In a nutshell the context is essential in the process of considering what constitutes exceptional circumstances.”

21. As stated earlier, this court granted leave to the ex parte Applicant herein to apply for orders of certiorari and prohibition against the enforcement notice issued on 21st November 2023, after he demonstrated that the Nairobi City County Physical Land Use and Planning committee was not duly constituted at the time. The Applicant had no other choice but to seek relief from this court. It was in the interest of justice that he be exempted from the obligation to exhaust the statutory remedy of going to the liaison committee first. The Applicant’s case does not therefore violate the doctrine of exhaustion and this court has the jurisdiction to entertain and determine this matter. The preliminary objection by the Respondent is therefore unmerited and is hereby dismissed.

B. Whether the ex parte Applicant’s Notice of Motion is merited, and if so, whether he is entitled to the orders of certiorari and prohibition 22. The main complaint by the ex parte Applicant is procedural impropriety and violation of his right to natural justice. Procedural impropriety was defined by Chigiti J in the case of Roma School Uthiru –vs- Date Protection Commissioner; Muturi (interested party) Judicial Review E163/2023) (2024) KEHC 3927 (KLR) (Judicial Review) (3rd April 2024) (Judgment), where he cited with approval the decision in Re an application by Tsukoba Gymkhana Club (1963) EA 478 at page 479, which defined it as follows;“Procedural impropriety is when there is failure to act fairly on the part of the decision making authority in the process of taking a decision. The unfairness may be in non-observance of the rules of natural justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision.”

23. The Applicant submits that the Respondent did not follow the laid down statutory procedure as prescribed before issuing the impugned notice. It therefore breached the rules of natural justice and especially the Applicant’s right to be heard after being given reasons for the decision. The decision communicated through the enforcement notice purports to deprive the ex parte Applicant and the other residents of Utamu Estate their right to use their properties without any lawful basis.

24. I associate with the decision on the court in the case of Republic –vs- Principal Registrar of Government Lands and another (2014) eKLR, where the court stated that;-“The decision of the respondent to deprive the applicant of his interest in the suit property without being afforded an opportunity of being heard was not only made in excess of jurisdiction as no finding had been made that the suit property was unlawfully acquired by the applicant but was also tainted with irrationality, illegality and procedural impropriety since it was made in breach of the rules of natural justice. It has been held that where the manner in which the proceedings conducted were appalling as all elementary rules of procedure were flouted, no court worth its salt can allow orders obtained in this manner to stand regardless of the magnitude of the allegations made against any of the litigants.”

25. It is worth pointing out that the facts as pleaded by the ex-parte Applicant herein have not been controverted by the Respondent.

26. In the case of Republic –vs- County Director of Education, Nairobi and 4 others ex parte Abdukadir Elmi Robleh (2018 eKLR, the court stated that;“The notice contemplated under Article 47 of the Constitution as read with Section 4(3) of FAAA must not only be prior to the decision but must also be adequate and must disclose the nature and reasons for the proposed administrative action.”

27. In the case of Geothermal Development Company Limited –vs- Attorney General and 3 others (2013) eKLR, the court observed that;“As a component of the due process, it is important that a party has reasonable opportunity to know the basis of allegations against it. Elementary justice and the law demands that a person be given full information on the case against him and given reasonable opportunity to present a response. This right is not limited only in the case of a court or before a tribunal, but when taking administrative actions as well.”

28. From the affidavit evidence presented before this court, I am persuaded that the Respondent’s decision communicated through the impugned enforcement notice was tainted with procedural improprieties including violating the ex parte Applicant’s right to be afforded a reasonable opportunity to present a response. The decision was made contrary to the rules of natural justice. The Respondent did not further inform the ex parte Applicant the reasons informing its decision to issue the enforcement notice.

29. From the foregoing, the Applicant’s case is merited. The court is satisfied that there is a reasonable basis to justify the issuance of the orders of certiorari and prohibition. Consequently, the court issues an order of certiorari removing to this court the enforcement notice dated 21st November 2023 issued by the Respondent which is hereby quashed. The court further issues an order of prohibition, prohibiting the respondent, Nairobi City County Government from proceeding to enforce the enforcement notice dated 21st November 2023.

30. The court awards the costs of these proceedings to the Ex Parte Applicant against the Respondent.It is so ordered.

DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 16TH DAY OF JANUARY 2025. M.D. MWANGIJUDGEIn the virtual presence of:Mr. Anyoka for the ex parte ApplicantN/A by the RespondentM.D. MWANGIJUDGE