[2014] KEHC 7601 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

JUDICIAL REVIEW CASE NO. 112 OF 2011

IN THE MATTER OF THE REGISTRATION OF TITLES ACT, CAP 281 LAWS OF KENYA

SEVENTH DAY ADVENTIST CHURCH(EAST AFRICA) LIMITED.............................................................................................APPLICANT

VERSUS

THE PERMANENT SECRETARY, MINISTRY OF NAIROBI METROPOLITAN DEVELOPMENT .................................. RESPONDENT

DON WOODS CO. LIMITED...............................................................................................................................1ST INTERESTED PARTY

JUDGEMENT

INTRODUCTION

By a Notice of Motion dated 13th January 2012 filed in this Court the same day, the ex parte applicant herein, Seventh Day Adventist Church (East Africa) Limited, seeks the following orders:

THAT the Honourable Court be pleased to grant the Applicant:

An order of Certiorari to bring into this court and quash the decision of the Respondent to ignore the survey map, plans and beacon certificate by diverting the construction of the Mathare North Bus Route by trespassing and demolishing the Applicant’s buildings to construct a road within the school in disregard of the approved plans.

An order of prohibition, prohibiting the Respondent through himself, agents and or servants from any further trespassing, demolishing, interfering and or in any way damaging buildings erected on LR NO. CP & ARCH/006826 situate in Mathare North estate in Utalii-Ruaraka area.

THAT the Honourable Court be pleased to grant such other or further relief as it may deem fit in the circumstances.

THAT cost of these proceedings be borne by the Respondent.

EX PARTEAPPLICANT’S CASE

The application is supported by a verifying affidavit sworn by Peter Ndunyu Muturi, an Elder of the Applicant’s Mathare North Seventh Adventist Church.

According to the deponent, the Applicant is the registered allottee of LR No. CP & ARCH/006826 situate in Mathare North vide an allotment letter dated 8th October 1997 and has been in occupation ever since and has developed a school and a church within the suit premises. The applicant has further paid the City Council of Nairobi all due payments as required upon being allotted the suit premises and was issued with a Beacon Certificate and approved survey plans by the City Council of Nairobi indicating how developments could be done on the suit premises including construction of roads.

However, on the 16th December 2011, the interested party went with a bull dozer on the Applicant’s suit premises intending to demolish the Applicant’s school despite earlier on having dug the road as per approved plans. Following resistance by the applicant, the interested party marked the road and notified the Applicant that it will be moving to demolish anything along the marked route slated for construction of the road as duly instructed by the Respondent as its employer.

It is the applicant’s case that the Respondents’ actions through itself, agents, servants and or the 1st interested party are prejudicial to the Applicant which rightfully owns the suit premises which has clear, approved plans to any developments, including construction of roads. It was further deposed that the Respondent and the 1st interested party had initially complied with the approved plan on the construction of the road and had even excavated the same and built the road straight through the Applicant’s buildings including the school the 1st interested party has gone ahead and marked the road and intents to demolish the Applicant’s buildings. The deponent further avers that the Respondent and his agent’s actions and omissions of flagrantly ignoring the approved plans and developments done by the Applicant is unjustifiable, unreasonable and contrary to the law which should be quashed by this Honourable Court since at no time was the Applicant consulted or at all. It was therefore deposed that it is imperative that this matter be heard urgently to prevent the Respondent and his agents from imminent demolishing of the Applicant’s buildings which will also affect the running of the school, to the prejudice of the pupils due to the actions that are being illegally carried out by the Respondent and that an order of stay ought to be granted restraining the Respondent through his agents, servants and or employees from any further trespassing, demolishing, interfering and or in any way damaging buildings erected on LR No. CP & ARCH/006826 situate in Mathare North estate in Utalii-Ruaraka area. The applicant further sought that an order be directed against the Respondent through itself, agents and or servants to strictly comply with the approved plans immediately leave is granted herein.

RESPONDENT’S CASE

The Respondent opposed the application by way of a replying affidavit sworn by Arch. Philip O. Sika, in his capacity as the Permanent Secretary for Ministry of Nairobi Metropolitan Development (hereinafter referred to as MONMED), the 2nd Respondent herein.

According to him, the 1st Respondent was created through presidential circular No. 1 of May 2008. That the Circular which outlines the organization of Government and functions of its various agencies, mandated the MONMED to amongst other things ensure the “preparation and enforcement of an integrated spatial growth and development strategy and actualization of integrated strategic programmes for the provision of social, economic and infrastructural services.

According to him, the 1st Respondent contracted the 2nd Respondent who is construction company to rehabilitate and reconstruct Mathare North Bus Route, herein after referred to as “the works” under the direct supervision of the resident Engineer for the Respondent vide a contract namely MONMED 15/2009-2010. In his view, the manner in which the said works were done does not contravene the law in any way; it is worth noting that the 1st respondent followed the due process, and the latter is not obliged to seek for approval for the construction and rehabilitation of the roads since it is mandated to do so. According to him, the Respondent has no intention of trespassing, demolishing, interfering or in any way damaging the Applicant’s premises as alleged in the pleading and that before the commencement of the work by the 2nd Respondent, the work plans are drawn and approved internally by Engineers concerned and that the contractors have to adhere to the said plans.

In his view, save for the letters of allotment, the applicant has neither produced original land documents with corresponding survey plans prior to issuance of the allotment letter to prove their ownership nor has it produced the approved plans for the development within the premises from the City council of Nairobi which it alleges that the Respondents have disregarded. Further, there has never been any communication between the 1st respondent and the applicant concerning the rehabilitation and construction of Mathare North Bus Route hence the issue of resistance does not arise as alleged in paragraph 6 of the verifying affidavit. The respondent is, further, not aware of the existence of any markings since the said road was to be reconstructed as per the work which was not in any way whatsoever interfering with the applicant’s buildings. Since the works done to the said premises claimed by the applicant has got nothing to do with compliance indicated, it was only logical to follow the original road alignment since the sewer line is also along the same alignment. To the Respondent, the allegations contained in the applicant’s affidavit are completely untrue as the work has already began and the applicant’s suit is meant to impede the work of the Ministry in rehabilitation and reconstruction of Mathare North Bus Route hence this matter should be brought to an end to enable the respondent proceed with the works since the proposed road is in the interest of the whole public without any discrimination.

Based on advice from the Respondent’s legal advisers, the Respondent believed that from the foregoing, the Ministry acted within the powers as conferred with in the circular.

APPLICANT’S SUBMISSIONS

On behalf of the applicant, it was submitted that under the current Constitution, Article 40(3) clearly provides that every person either individually or in association with others is entitled to and the Government shall not deliberately derive on of land unless the land is for public use or interest in which case, the affected party is entitled to full compensation for the loss. In this case it was submitted that the Respondent intends to deprive the applicant of the land in question without granting any adequate compensation after the applicant, relying on the Respondent’s representations. To the applicant the Respondent has not opposed the applicant’s rights over the suit land.

It was further submitted that fairness demands that a public body should not act so unfairly that its action amounts to an abuse to power and that there should be sufficient reasons given for the decision and/or action. Without giving the applicant any notice or sufficient reasons, it was submitted that the said action was not only unfair but unreasonable.

Relying on the principle of legitimate expectation and particularly the case of Ex Parte Unilever [996] STC 681, it was submitted that categories of unfairness are not closed and precedent should act as a guide not a cage thus the principle behind the said principle is that once a public body makes a promise, it effectively amounts to a contract and to go back on it is a breach and unfair for a public authority to do so. To the applicant, it relied on the representations and promises made by the Respondent. Further, the Respondent did not bother to liaise with the Ministry of Local Government and the Council on the issue of the approved plans before deciding on the drastic step and no consultations were done to justify the said actions.

RESONDENT’S SUBMISSIONS

On behalf of the Respondent, it was submitted while reiterating the contents of the replying affidavit that the application herein is premature as the cause of action has not arisen. While citing Paul Kiplagat Birgen & 25 Others vs. Interim Independent Electoral Commission & 2 Others [2011] eKLR, it was submitted that the Minister cannot be accused when there is no wrongdoing alleged against him.

According to the Respondent the applicant is pre-empting the action to be taken by the Respondents and that the rehabilitation and construction of the road is for the common good of the whole public and that the same will be carried out within the bounds of the law and in a manner not to infringe the rights and interests of the applicants.

DETERMINATIONS

I have considered the foregoing. The applicant’s case, as I understand it is that the City Council having allotted the applicant the suit land which the applicant, relying on the Beacon Certificate and approved survey plans by the said Council developed by constructing a school and a church, the act of demolition thereof is unreasonable and goes against the legitimate expectation of the applicant.

Broadly speaking the ground upon which the Court grants judicial review were stated in the case of Pastoli vs. Kabale District Local Government Council and Others [2008] 2 EA 300 where it was held:

“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 ...Illegality is when the decision-making authority commits an error of law in the process of taking or making the act, the subject of the complaint. Acting without jurisdiction or ultra vires, or contrary to the provisions of a law or its principles are instances of illegality. It is, for example, illegality, where a Chief Administrative Officer of a District interdicts a public servant on the direction of the District Executive Committee, when the powers to do so are vested by law in the District Service Commission...Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision. Such a decision is usually in defiance of logic and acceptable moral standards.........Procedural Impropriety is when there is a 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.”

The reason for saying this is due to the recognition that the grounds upon which the Court exercises its judicial review jurisdiction are incapable of exhaustive listing. As was stated by Nyamu, J (as he then was) in Republic vs. The Commissioner of Lands Ex parte Lake Flowers Limited Nairobi HCMISC. Application No. 1235 of 1998:

“Availability of other remedies is no bar to the granting of the judicial review relief but can however be an important factor in exercising the discretion whether or not to grant the relief.....The High Court has the same power as the High Court in England up to 1977 and much more because it has the exceptional heritage of a written Constitution and the doctrines of the common law and equity in so far as they are applicable and the Courts must resist the temptation to try and contain judicial review in a straight jacket.......Although judicial review has been bequeathed to us with defined interventions namely illegality, irrationality and impropriety of procedure the intervention has been extended using the principle of proportionality.....The court will be called upon to intervene in situations where authorities and persons act in bad faith, abuse power, fail to take into account relevant considerations in the decision making or take into account irrelevant considerations or act contrary to legitimate expectations.......Even on the important principle of establishing standing for the purposes of judicial review the Courts must resist being rigidly chained to the past defined situations of standing and look at the nature of the matter before them............Judicial review is a tool of justice, which can be made to serve the needs of a growing society on a case-to-case basis.........The court envisions a future growth of judicial review in the human rights arena where it is becoming crystal clear that human rights will evolve and grow with the society.”

This is in tandem with the holding in Re Bivac International SA (Bureau Veritas) [2005] 2 EA 43 that like the Biblical mustard seed which a man took and sowed in his field and which is the smallest of all seeds but when it grew up it became the biggest shrub of all and became a tree so that the birds of the air came and sheltered in its branches, judicial review stems from the doctrine of ultra viresand the rules of natural justice and has grown to become a legal tree with branches in illegality, irrationality, impropriety of procedure (the three “I’s”) and has become the most powerful enforcer of constitutionalism, one of the greatest promoters of the rule of law and perhaps one of the most powerful tools against abuse of power and arbitrariness. It has been said that the growth of judicial review can only be compared to the never-ending categories of negligence after the celebrated case of Donoghue vs. Stephensonin the last century.

It is now recognised that judicial review orders may be granted where the impugned decision goes against the legitimate expectations of the applicant. Legitimate expectation however has been expounded in Keroche Industries Limited vs. Kenya Revenue Authority & 5 Others Nairobi HCMA NO. 743 of 2006 [2007] 2 KLR 240, where Nyamu, J held that stated simply legitimate expectation arises for example where a member of the public as a result of a promise or other conduct expects that he will be treated in one way and the public body wishes to treat him or her in a different way.

The Respondent however contends that it has no intention of trespassing, demolishing, interfering or in any way damaging the Applicant’s premises as alleged. In fact according to the Respondent, the said road was to be reconstructed as per the work which was not in any way whatsoever interfering with the applicant’s buildings.

In order for this Court to find that the Respondent’s action is wrongful and amounts to interference with the applicant’s use of occupation and development of the suit premises contrary to earlier indication, this Court would have to make a determination with respect to the actual area claimed by the applicant vis-à-vis the intended route of the said road. That in my view is a purely question of evidence and facts. As correctly deposed by the Respondent, the applicant has neither produced original land documents with corresponding survey plans prior to issuance of the allotment letter to prove their ownership nor has it produced the approved plans for the development within the premises from the City council of Nairobi which it alleges that the Respondents have disregarded. In this case therefore, not only are facts in issue but there is simply no material upon which I can find that the applicant’ claim that the Respondent intends to interfere with the applicant’s developments in light of the Respondent’s denial to be true.

Judicial review proceedings, it is trite, do not deal with the merits of the decision but by the decision making process. In Municipal Council of Mombasa vs. Republic & Umoja Consultants Ltd Civil Appeal No. 185 of 2001 the Court of Appeal 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…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.”

In Republic vs. Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR it was held that the remedy of judicial review is concerned with reviewing not the merits of the decision of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of the remedy of Judicial Review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of the individual judges for that of the authority constituted by law to decide the matter in question. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing abuse of power, be itself, guilty of usurpation of power. See Halsbury’s Laws of England4th Edition Vol (1)(1) Para 60.

The purpose judicial review proceedings is to ensure that the individual is given fair treatment by the authority to which he has been subjected and not to ensure that the authority, after according fair treatment reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the court. See Chief Constable of the North Wales Police vs. Evans (1982) I WLR 1155 and R vs. Secretary of State for Education and Science ex parte Avon County Council (1991) 1 All ER 282, at P. 285.

In my view for the Court to find that the respondent is not operating within the area it is legally entitled to operate and construct the road, this Court would have to examine the various plans of the area and determine the exact position of the intended road on the ground vis-à-vis the applicant’s property. That determination necessarily requires that oral and/or documentary evidence be adduced more so the evidence of the surveyors. In the absence of such evidence, it would be an exercise in futility for this Court to attempt a resolution of the dispute between the parties herein. However, that is not the jurisdiction of a Court exercising judicial review jurisdiction under sections 8 and 9 of the Law Reform Act Cap 26 Laws of Kenya. Where the determination of the dispute before the Court requires the Court to make a determination on disputed issues of fact that is not a suitable case for judicial review since judicial review jurisdiction is a special jurisdiction which is neither civil nor criminal and the Civil Procedure Act does not apply. It is governed by sections 8 and 9 of the Law Reform Act being the substantive law and Order 53 of the Civil Procedure Rules being the procedural law. Section 8 of the Law Reform Act specifically sets out the orders that the High Court can issue in judicial review proceedings and the orders are, mandamus, certiorari and prohibition. In order to determine the questions in this dispute, it is my view, that it would be necessary to make certain findings in the nature of declarations yet declarations do not fall under the purview of judicial review for the simple reason that the court would require viva voce evidence to be adduced for the determination of the case on the merits before making the said declarations. Here, not only are there factual disagreements, which require to be resolved and which go beyond the Court’s jurisdiction in judicial review proceedings, but there is insufficient material upon which the applicant’s case can be sustained.

As was held in Sanghani Investment Limited vs. Officer in Charge Nairobi Remand and Allocation Prison [2007] 1 EA 354:

“Section 8 of the Law Reform Act specifically sets out the orders that the High Court can issue in judicial review proceedings and the orders are, mandamus, certiorariand prohibition. A declaration does not fall under the purview of judicial review for the simple reason that the court would require viva voce evidence to be adduced for the determination of the case on the merits before declaring who that owner of the land is. Judicial review on the other hand is only concerned with the reviewing of the decision making process and the evidence is found in the affidavits filed in support of the application…....…Whereas it is true that the underlying dispute herein is ownership of the land, Judicial Review proceedings is not a forum where such a dispute can be adjudicated and determined as there would be a need for viva voceevidence to be adduced on how the land was acquired and came to be registered in the names of the applicant; whether the title is genuine or not. In cases where the subject matter or the question to be determined involves ownership of land, and the rights to occupy land namely occupation, and disposition, there would be need to allow viva voce evidence and cross-examination of the witnesses which is not available in judicial review proceedings. Even if the respondents had filed documents, they would be copies that would not be sufficient to establish authenticity of the title. The original documents would need to be produced at a full hearing where oral evidence would be adduced……….It may indeed be true that the notice that is impugned is irregular or unlawful and an order of certiorariwould be deserved, but it is not in every case that the court will grant an order of judicial review even though it is deserved. Judicial review being discretionary remedy will only issue if it will serve some purpose. Certiorariis a discretionary remedy, which a court may refuse to grant even when the requisite grounds for it exist. The court has to weigh one thing against another to see whether or not the remedy is the most efficacious in the circumstances obtaining. The discretion of the Court being a judicial one must be exercised on the basis of evidence and sound legal principles…..So that in this case, even though this application were properly before this Court and the application had merit, the court may not have granted an order of certioraribecause it would not be the most efficacious remedy in the circumstances. Even if the notice under challenge is quashed, the issue over the ownership of the land still stands and it will require determination by way of filing pleadings and viva voce evidence at another forum preferably the Civil Courts.”

Where an applicant brings judicial review proceedings with a view to determining contested matters of facts with an intention of securing a determination on the merits of the dispute the Court would not have jurisdiction in a judicial review proceeding to determine such a dispute and would leave the parties to ventilate the merits of the dispute in the ordinary civil suits.

ORDER

The issues in this suit, not being proper candidates for determination by judicial review proceedings, the order that commends itself to me is that the Notice of Motion dated 13th January 2012 fails and is dismissed with costs to the 1st Respondent.

Dated at Nairobi this 6th day of February 2014

G V ODUNGA

JUDGE

Delivered in the absence of the parties at 2. 40pm.