[2009] KEHC 3510 (KLR)
The court found that the applicant may not have been accorded procedural fairness, specifically the right to be heard, before the demolition notice was issued by the respondent. The judge emphasized that in judicial review, the focus is on whether the administrative body acted illegally, irrationally, or with...
Source-derived case information.
- Citation
- [2009] KEHC 3510 (KLR)
- Parties
- Applicant: Samule Kiplimo Rotich; Respondent: Kipkelion Town Council
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- ? 4 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Leave for Judicial Review
- Outcome
- Leave granted for judicial review; leave to operate as stay.
- Legal Topics
- Judicial Review, Procedural Fairness, Right to Be Heard, Administrative Action, Land Allocation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Samule Kiplimo Rotich
Applicant
Kipkelion Town Council
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Leave for Judicial Review
Legal Issues
- 1 Whether the applicant was accorded procedural fairness before the demolition notice was issued.
- 2 Whether the administrative action by the respondent was subject to judicial review for illegality, irrationality, or procedural impropriety.
Ratio Decidendi
The court found that the applicant may not have been accorded procedural fairness, specifically the right to be heard, before the demolition notice was issued by the respondent. The judge emphasized that in judicial review, the focus is on whether the administrative body acted illegally, irrationally, or with procedural impropriety. Given the lack of evidence that the applicant was given a fair hearing prior to the issuance of the demolition notice, the court held that leave should be granted to commence judicial review proceedings. The leave was also ordered to operate as a stay of the respondent's intended action.
Court Disposition
Leave granted for judicial review; leave to operate as stay.
Orders
- Leave is granted to the applicant to bring judicial review proceedings.
- The applicant is to file a Notice of Motion within 21 days from the date of the ruling.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Misc. Civ. App. 4 of 2009 (JR
SAMULE KIPLIMO ROTICH …………………...………. APPLICANT
VERSUS
THE KIPKELION TWON COUNCIL ……………….. RESPONDENT
RULING
I: Background
1. The applicant was a business concern. He was allocated land/plot by the Respondent, the town council of Kipkelion known as unsurveyd plot No. 7, petrol station.
2. He constructed structures thereon and was issued with regular license to operate his business.
3. He received a letter dated 25th February, 2009 notifying him that he must move his properties to a new market or face demolition by 29th February, 2009.
4. The applicant filed for leave for Judicial Review proceedings for orders of certiorari and to quash the decision of the Respondents.
II: Judicial Review proceedings – Leave
5. The applicant argues that he was not notified of the intended notice to vacate the premises failure to, his premises would be demolished.
6. The letters of 25th February, 2009 gave a deadline of 29th February, 2009 for the demolition to take place. He prays that there be leave to so bring the Judicial Review proceedings.
7. I find that on examining the notice letter, it indicates the 30th October, 2008 as the date in which a public notice has been issued.
8. It is not disputed that licenses to operate their business was granted. I believe this is quite clear.
9. In a Judicial Review application, what is important is that administrative action is subject to be controlled in three aspects. If a body conducts itself illegally, irrationally and procedural impropriety¹.
10. I note the arguments put forward is that of fairness. That when the notices are said to have been issued, there was no fair hearing. The procedural fairness was lacking towards the applicant.
11. I would therefore in the event ask myself whether the applicant was as in the following case;
1. Council of Civil Service Union v Minister of Civil Service (1985) AC 374 (pg 20 Judicial Review in Kenya PLOLumumba1999) accorded procedural
fairness of being heard when the orders to demolish was made. I so find he may not have been.
12. I accordingly find that leave be and is hereby granted leave to the applicant to bring Judicial Review proceedings. The applicant is to file a Notice of Motion within 21 days of to-days date. That he is to give 8 clear days between the date of service and hearing of the application.
13. That the leave will accordingly operate as a stay.
Dated this 4th day of March, 2009 at Kericho
M.A. ANG’AWA
JUDGE
Advocates
E.M. Orina advocates instructed by the firm of M/S E.M. Orina & Co. advocates for the Applicant – present