[2015] KEELC 106 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NYERI

ELC JUDICIAL REVIEW APPLICATION NO. 8 OF 2014

(Formerly Nairobi H.C JR. NO. 442 OF 2014)

IN THE MATTER OF :

PHYSICAL PLANNING ACT CAP 286 LAWS OF KENYA

AND

IN THE MATTER OF:

ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT CAP 387 LAWS OF KENYA

AND

IN THE MATTER OF :

THE CONSTITUTION OF KENYA

AND

IN THE MATTER OF :

AN APPLICATION BY CENTRAL KENYA

COFFEE MILL LIMITED FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION

BETWEEN

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

AND

NYERI COUNTY GOVERNMENT.......................................................... RESPONDENT

EX-PARTE CENTAL KENYA COFFEE MILL LIMITED

RULING

1. Pursuant to the leave granted to the ex parte applicant, Central Kenya Coffee Mill Ltd, the ex parte applicant (hereinafter referred to as the applicant) filed the notice of motion dated 9th December, 2014 seeking the following orders:-

An order of certiorari to remove to this Honourable court and quash the decision of the County Government of Nyeri issued to the applicant vide Notice of Deferment of Development Permission dated 7th October, 2014 nullifying the development permission granted to the applicant on 13th May, 2014 over land parcels Konyu/Baricho/1139 and Konyu/Baricho/1140.

An order of mandamus compelling the County Government of Nyeri to reaffirm the development granted to the applicant on 13th May, 2014 on land parcels Konyu/Baricho/1139 and Konyu/Baricho/1140.

An order of Prohibition to restrain and/or prohibit the County Government of Nyeri, its officers, agents, and/or assigns from annulling or cancelling the development approvals granted to the Applicant on land parcels Konyu/Baricho/1139 and Konyu/Baricho/1140.

2. The applicant contends that the County Government of Nyeri (hereinafter the respondent) acted beyond the powers conferred on it by Section 34 of the Physical Planning Act; that the respondent’s purported exercise power of revocation is not envisaged under Section 48 of the Physical Planning Act; that the respondent deliberately ignored the evidence of Environmental Impact Assessment (herein after referred to as EIA) reports submitted via a letter dated January 2014 and that the respondent via its approval of the planning brief on 13th May, 2014 had already conceded that there was enough justification for the change of user from Agricultural to Industrial (Coffee Milling). The applicant further contends that it is clear from the documents supplied in support of the planning brief that the applicant submitted correct details regarding its name and land ownership.

3. The application is opposed through the replying affidavit of the respondent’s County Secretary, Wambui Kimathi sworn on 6th May, 2015. Vide that affidavit, the respondent points out that after the respondent communicated its decision deferring the development permission granted to the applicant, the applicant exercised the option conferred on it by the Physical Planning Act, No.6 of 1996 (hereinafter reffered to as the Act) and preferred an appeal to the Local Liason Committtee under Section 38 (4) and Section 13 of the Act.

4. The respondent contends that the enforcement notice dated 8th January, 2014 and the notification of deferment dated 7th October, 2014 were not addressed to the applicant but to an entity called Mathira Coffee Mills Limited (hereinafter referred to as MCML).

5. Explaining that the enforcement notice dated 8th January, 2014 was served on MCML under Section 38 (1) of the Act in 1996 because it is the registered owner of the suit properties known as L.R Numbers Konyu/Baricho/1139 and 1140), the respondent contends that neither the applicant nor MCML met the condition/requirement impose on it under Section 36of the Act.

6. The respondent further contends that contrary to Section 48 of the Act, the applicant vide its application dated 13th September 2012, provided erroneous information concerning ownership of the properties herein.

7. Terming the issues raised in this application sub-judice the proceedings pending before the Local Liason Committee; the respondent contends that the applicant can only move this Court by way of appeal of the decision of the Local Liason Committee.

8. Maintaining that the respondent acted within its powers in making the impugned decision; the respondont contends that in view of the pending appeals to the Local Liasion Committee the orders sought cannot issue.

9. The following documents are annexed to the affidavit sworn on behalf of the respondent:-

A photocopy of the applicant’s appeal dated 18th December, 2014 marked NO/428/1;

A copy of the enforcement notice dated 8th January, 2014 marked NO/428/II;

A copy of the notification of deferment dated 7th October 2014 marked NO/428/III;

Copies of official searches in respect of the parcels of land herein marked NO/428/IV and NO/429/V respectively;

A photocopy of the application by the ex parte applicant dated 13th September, 2012 marked NO/428/VI.

10. The application was disposed of by way of written submissions.

Submissions for the applicant

11. In the submissions filed on behalf of the applicant, a brief background of the circumstances leading to the filing of the application is given and submitted that the respondent, being a public body is obligated by Article 47 of the Constitution of Kenya to ensure that its administrative actions and decisions are exercised and arrived at in a lawful, reasonable and procedurally fair manner. Referring to the case of Republic v. Nairobi City Council ex parteGurcham Singh Sihra & 4 others (2014) eKLR counsel for the applicant submits that a court will be called upon to intervene, by way of judicial review, in situations where authorities act contrary to the principles enshrined in Article 47 of the Constitution.

12. On the law applicable to the application, reference is made to the case of Isaac Gathugu Wanjohi & another vs. Director of City Planning, City Council of Nairobi &another (2014) eKLRwhere the court followed the decision in the case of Council of Civil Unions vs.Minister for Civil Service, (1985) AC 2 to the effect that in order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.

13. In the circumstances of this case, it is submitted that the respondent’s decision to defer the applicant’s development permission was tainted with illegality as it was arrived at in error of law. In this regard, it is contended that Section 34 of the Act presupposes that the decision to approve or annul an application is preceded by consideration of the development application and not the other way round.

14. As the respondent had previously approved the applicant’s application for development, it is submitted that its decision to defer the development permission was tainted with procedural impropriety. It is further submitted that Section 34 of the Act does not make any reference to nullification of a previously granted approval. Since by its notice of deferment of the development permission the respondent nullified any other approval granted, it is submitted that the respondent’s decision was illegal.

15. Contending that in making the impugned decision the respondent failed to take into account relevant matters, to wit, that the respondent and Mathira Coffee Mills Ltd were one and the same and that the respondent failed to take into account the fact that the applicant lodged with National Environment Management Authority (herein after referred to as NEMA) an EIA report on 6th September, 2007 and took further reports and improvement orders, Counsel for the applicant explains that vide a letter dated 15th January, 2014 annexed as Exhibit KK-4, the applicant availed the information regarding compliance with EIA requirements. The applicant submits that no reasonable body presented with the EIA reports would have concluded that the applicant failed to fulfill NEMA requirements.

16. It is further submitted that the respondent failed to discharge its mandate under Section 32(2) of the Act to make sufficient enquiry with NEMA regarding the EIA reports or decision before making the impugned decision based on the decision in the case of Onyango Oloo vs.Attorney General (1986-1989)EA 456 where the Court of Appeal observed:-

“...In other cases, it is sufficient if there is an investigation by responsible officers, the conclusions of which are sent to the decision making body or person, who having given the person affected a chance to put his side of the matter, and offer whatever mitigation he considers fit to put forward, may take the decision in the absence of the person affected.”

17. The applicant contends that it was unreasonable for the respondent to conclude that the applicant had not provided adequate mitigation.

18. With regard to the contention that the applicant exercised the option of appeal to the Local Liason Committee under Section 38 and Section 13 of the Act, counsel for the applicant submits that the fact that the applicant had recourse in an appellate body does not justify an irregular decision making process. Counsel urged this court to follow the decision in Gurcharn singh (supra) where it was held:-

“Where a party has not been heard, to contend that the applicant could appeal the decision of the respondent is to miss the point by wide margin. It is the body making the adverse decision which is obliged to afford the party to be affected an opportunity of being heard and not the appellate body.”

19. Concerning the contention that the notice of enforcement and deferral were not addressed to the respondent but to a different entity, it is submitted that had the respondent considered the documents presented in support of the applicant’s application for the development permit, the respondent would have realised that the applicant and the entity addressed in those letters were one and the same entity as the applicant had just effected a name change based on the decisions in the cases of Padfield vs.Minister of Agriculture & Fisheries (1968)1 ALL ER and Associated Provincial Picture House Ltd vs.Wednesbury Corporation 1947 2 ALL ER 680 where it was held:-

“the court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account matters which they ought to take into account..(or where)they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever come to it.”

20. Counsel for the applicant submits that the documents submitted to the respondent vide the planning brief dated February 2014 (Exhibit KK-6) sufficed to prove that it had complied with the conditions for grant of the development certificate.

21. It is submitted that in the circumstances of this case, no reasonable body presented with the documentation presented to the respondent would have arrived at the conclusion that the respondent arrived at.

22. Arguing that in making the impugned decision the respondent acted in bad faith, counsel for the applicant submits that had the applicant submitted false information as contended, the respondent would have charged it with the offences created under Section 48 of the Act.

Submissions on behalf of the Respondent

23. On behalf of the respondent, it is submitted that the applicant’s application herein should fail because of the following reasons:-

The applicant is not the registered owner of the parcels of land herein;

The enforcement notice was served on MCML which is the registered proprietor of the parcels of land herein and not the applicant;

Having preferred an appeal against the respondent’s decision the applicant cannot, at the same time come before this court by way of judicial review.

Neither MCML nor the applicant has demonstrated that they ever obtained the mandatory development permission required by Section 33(1) of the Act.

MCML and/or the applicant are yet to meet the requirements by NEMA concerning EIA report and licence.

24. Concerning the prayer for mandamus, the respondent contends that it cannot issue as it applies only to a public duty.

25. With regard to the prayer for an order of prohibition, it is submitted that it cannot be granted where there is a prayer for certiorari as held in the decision of Korir J.,in Republic v. City Council of Nairobi ex parte InderpalSingh (2013)eKLR & 2 others where the judge stated:-

“they indeed had a right to the liaison committee but they opted not to do so. Where there is a clear appeal mechanism, the court will be reluctant to grant judicial review remedies.”

26. With regard to the authorities cited in support of the applicant’s case, it is submitted that the authorities are distinguishable because the instant case relates to a decision made under the Physical Planning Act which provides for a mechanism of challenging the decisions made in exercise of the powers confered under the Act.

Analysis and determination

27. It is trite law that judicial review is concerned with the decision making process and not the merits of the decision itself. In this regard see the authorities cited in the case of Isaac Gathungu Wanjohi and Another vs. Director of City Planning (authority number 1 in the applicant’s bundle of authorities)- namely, Municipal Council ofMombasa vs. Republic & Umoja Consultants Ltd; CivilAppeal No.185 of 2001andRepublic vs. Kenya Revenue Authority ex parte Yaya Towers Ltd (2008) eKLR.

28. As pointed out above, the dispute herein relates to discharge of the respondents powers under the Physical Planning Act. That being the case, any complaint concerning exercise of those powers should be handled in accordance with the provisions of that Act. In that regard see the case of International Centre for Policy and Conflict & 5 others v. The Attorney General & 4 others.... where it was held:-

“An important tenet of the concept of the rule of law is that this court before exercising its jurisdiction under Article 165 of the Constitution in general, must exercise restraint. It must first give an opportunity to the relevant bodies or state organs to deal with the dispute under the relevant provision of the relevant statute....”

29. In the circumstances of this case, the Physical Planning Act establishes a mechanism for resolving any disputes/complaints that may arise from exercise of powers donated by that Act to the respondent or any other public authority created thereunder. To this end, Section 7 of the Act establishes Physical planning Liaison Committees whose functions include:-

“To hear appeals lodged by persons aggrieved by decisions made by the Director or local authorities under the Act.” See Section 10(2) (e) of the Act.”

30. Under Section 13(1) of the Act, any person aggrieved by a decision of the Director concerning any development plan or matters connected therewith may, within sixty days of receipt by him of notice of such decision, appeal to the respective liaison committee in writing against the decision in such manner as may be prescribed.

31. Under Section 15 thereunder, any person aggrieved by the decision of the liaison committee may, within sixty days of receipt by him of the notice of such decision, appeal to the National Liaison Committee in writing against the decision in the manner prescribed.

32. Under Sub-Section 4 of Section 15, any person aggrieved by a decision of the National Liaison Committee under that Section may appeal to the High Court against such decision in accordance with the Rules of procedure for the time being applicable to the High Court.

33. Under the rules enacted to facilitate lodging and determination of complaints against actions or inactions of the public authorities clothed with public power under the Physical Planning Act namely, the Physical Planning (Appeals to the Physical Planning Liaison Committee) regulations, 1998 (hereinafter “the Rules) a petitioner is defined as:-

“Any person aggrieved by a decision of the Director of Physical Planning or a local authority concerning any physical development plan or matters connected therewith, and any person aggrieved by a decision of a liaisoncommittee”. See Rule 2 of the rules.

Rule 3, on the other hand, provides for the procedure of approaching the Liaison Committees. It provides:-

“All appeals shall be made on forms P.P.A 8 and P.P.A 9 set out in the schedule respectively and issued by the relevant liaison committee or local authority, and shall include such particulars as may be required by the directions printed on the forms.”

34. The secretary to the relevant liaison committee shall within ninety days of receipt of the application in writing inform the petitioner the date on which the liaison committee shall consider the appeal.

35. Under the Rules, the secretary to the relevant liaison committee is obligated to inform the petitioner of the decision of the committee within sixty days.

36. Where the petitioner is not satisfied with the decision of the committee, the petitioner may appeal to the National Liaison Committee within thirty days of receipt of the decision of the committee communicated under the regulations. The rules also provide for a final appeal to the High Court through the Rules of the Court.

37. The question which arises from the procedure established above is whether it precludes an aggrieved party from challenging decisions made under the Act by judicial review. In answering this question I will adopt the decision of Korir J. In the case of Republic v. City of Nairobi exparteInderpal Singh & others(supra) that:-

“The availability of an alternative remedy is not a bar to the commencement of judicial review proceedings. Judicial review proceedings are more often than not aimed at correcting defects in the decision making process whereas an appeal is directed at the merits of a decision. In my view, the court can only determine whether an appeal was the more efficacious remedy after considering the circumstances surrounding each particular case.”

38. Having considered the issues raised in this case, I hold the view that they tilt more towards the merits of the decision as opposed to the process through which the decision was made hence more suited to be dealt with by way of the pending appeal. I say this because the issues concerning whether or not the applicant had satisfied the conditions for grant of the development permit are matters that require the technical input of the liaison committee. From the evidence adduced in this case, I am unable to find that the respondent acted in excess of its powers or acted unreasonably in deferring the applicant’s development permit. The contention that the respondent could not recall the approval earlier on given to effect the impugned development is not supported by the law and factual scenario concerning the permit given to the applicant vide the letter dated 13th May, 2014. I say this because the approval was subjected to the applicant meeting the requirements of Sections 31, 41 and 51 of the Act.

39. Section 34 on the other hand, grants the respondent discretionary power by notice deferment served on the applicant in the manner prescribed, to defer consideration of a development application for such period and for such reasons as may be specified in the notice.

40. As the approval by the respondent of the applicant’s development permit was conditional, the respondent could for good reasons defer its consideration or approval.

41. The upshot of the foregoing is that the applicant has not established a case for grant of the orders sought. The application is, consequently dismissed with costs to the respondent.

Dated, signed and delivered at Nyeri this 16th day of September, 2015.

L N WAITHAKA

JUDGE.

In the presence of:

Ms Kahiga h/b for firm of Daly & Figgis for the applicant

Mr. Muchiri wa Gathoni h/b for Mr. Wahome for the respondent

Court assistant - Lydia