[2009] KEHC 2268 (KLR)

[2009] KEHC 2268 (KLR)

The court found that the ex-parte applicants had established a prima facie case that the respondents may have acted ultra vires the Physical Planning Act in approving or permitting the proposed development on LR NO. 3588111/MN. The court was satisfied that the application raised substantial legal issues warranting further inquiry and that the applicants were entitled to seek orders of prohibition and a stay. Accordingly, the court granted leave to apply for judicial review and ordered that the grant of leave operate as a stay of any approval or implementation of development or change of user on the subject property pending the determination of the substantive motion.

Citation
[2009] KEHC 2268 (KLR)
Parties
Applicant: Republic; Respondent: The Commissioner of Lands; Respondent: The Registrar of Titles, Mombasa; Respondent: The Municipal Council of Mombasa; Respondent: The Director, Physical Planning; Interested Party: Amrit Kaur Saroup Singh Sagoo; Applicant: Daphne Pauline Bagshaw; Applicant: David Walter Harris; Applicant: Susan Jean Harris; Applicant: Paul Julian Fay; Applicant: Alexandra Nathalie Funke; Applicant: George Bagshaw; Applicant: Carel Wilhemus Funke; Applicant: David Musila
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
4 June 2009
Case Number
Miscellaneous Civil Application 273 of 2009
Procedural Posture
Miscellaneous Application / Ruling on Leave for Judicial Review and Stay Orders
Outcome
Application for leave to apply for judicial review granted; stay orders issued; costs in the cause.
Judges
JV Juma
Legal Topics
Judicial Review, Prohibition Orders, Planning Permission, Ultra Vires Actions, Change of User, Development Control
Source Language
English
Administrative Law Land and Property Judicial Review Prohibition Orders Planning Permission Ultra Vires Actions Change of User Development Control

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Parties

Republic

Applicant

The Commissioner of Lands

Respondent

The Registrar of Titles, Mombasa

Respondent

The Municipal Council of Mombasa

Respondent

The Director, Physical Planning

Respondent

Amrit Kaur Saroup Singh Sagoo

Interested Party

Daphne Pauline Bagshaw

Applicant

David Walter Harris

Applicant

Susan Jean Harris

Applicant

Paul Julian Fay

Applicant

Alexandra Nathalie Funke

Applicant

George Bagshaw

Applicant

Carel Wilhemus Funke

Applicant

David Musila

Applicant

Procedural Posture

Miscellaneous Application / Ruling on Leave for Judicial Review and Stay Orders

Legal Issues

  1. 1 Whether the respondents acted ultra vires the Physical Planning Act in approving or permitting development on LR NO. 3588111/MN.
  2. 2 Whether leave should be granted to apply for orders of prohibition against the respondents and the interested party.
  3. 3 Whether the grant of leave should operate as a stay of any approval or implementation of development or change of user pending determination of the substantive motion.

Ratio Decidendi

The court found that the ex-parte applicants had established a prima facie case that the respondents may have acted ultra vires the Physical Planning Act in approving or permitting the proposed development on LR NO. 3588111/MN. The court was satisfied that the application raised substantial legal issues warranting further inquiry and that the applicants were entitled to seek orders of prohibition and a stay. Accordingly, the court granted leave to apply for judicial review and ordered that the grant of leave operate as a stay of any approval or implementation of development or change of user on the subject property pending the determination of the substantive motion.

Court Disposition

Application for leave to apply for judicial review granted; stay orders issued; costs in the cause.

Orders

  • Leave granted to apply for orders of prohibition against the respondents and the interested party.
  • The grant of leave shall operate as a stay of any approval or implementation, including any development, building or construction on LR NO. 3588111/MN and/or any change of user over the said property from residential to commercial use pending the hearing and determination of the substantive motion.