Republic v Kenya National Highways Authority & 2 others
The bottom line
#Kenya's Court of Appeal upheld existing billboard contracts despite an unconstitutional approval process, and clarified that the six-month judicial review deadline does not apply to ordinary administrative decisions.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court judge properly exercised discretion in declaring the KeNHA process unconstitutional but declining to quash the authorizations
Yes. The judge could adopt the remedy of temporary validity/suspension of invalidity, and given that the same process had benefitted many industry players including some of the complainants, it was within the law to suspend rather than nullify the contracts.
The Court held the case transcended judicial review into constitutionality. Articles 10 and 227 are not non-derogable and can be interpreted purposively in light of the justice of the case. Drawing on the South African remedy of suspended invalidity and Kenyan precedents, the Court found the judge was entitled to balance interests and allow existing contracts to stand while requiring prospective compliance.
Whether the certiorari application was barred by the six-month limitation under Order 53 rule 2 and section 9(3) of the Law Reform Act
No. The limitation applies only to judicial and quasi-judicial proceedings; the impugned communication was an administrative letter to a specific person, not copied to other interested parties, so the appellant was not time barred.
Order 53 rule 2 was meant to cover proceedings where there was a hearing, parties were informed or aware, and a judgment or decision capable of dissemination. A private letter in response to another does not qualify; ejusdem generis construes 'other proceedings' as judicial or quasi-judicial. The appellant, not being party to the process, could not have known of the letter.
Whether the appellant discharged the burden of showing prejudice from the 1st respondent's decision
No. The appellant did not demonstrate it had applied to be considered in the same manner as the 3rd respondent and failed to show it was prejudiced by the letter of 10th November 2011.
The Court applied the presumption that acts of public bodies are done rightly and regularly (omnia praesumuntur rite et solemniter esse acta), requiring proof of non-compliance and its effect. Unsupported allegations of backdating could not displace the limitation analysis or establish prejudice.
Legal principles established
#- The six-month limitation in Order 53 rule 2 and section 9(3) of the Law Reform Act applies only to judicial or quasi-judicial decisions, not to administrative decisions such as a letter granting permission
- A court may declare a law or act unconstitutional yet suspend or decline to give immediate effect to the declaration of invalidity in the interests of justice
- An appellate court will not interfere with a discretionary decision unless the judge misdirected himself, misapprehended the facts, took or failed to take account of relevant considerations, or was plainly wrong
Court orders
#- 1.Appeal dismissed save for the clarification on limitation of time
- 2.Each party to bear its own costs
- On appeal from
- High Court of Kenya at Nairobi
- JR No. 246 of 2012 (consolidated with JR No. 202 of 2012 and Petition No. 245 of 2012)
- Jurisdiction invoked
- Article 164(3) of the Constitution and section 3(1) of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Kenya National Highways Authority & 2 others", Case Analysis (2016). Civil Appeal (JR No. 246 of 2012, High Court) - appeal from consolidated proceedings JR No. 246 of 2012, JR No. 202 of 2012 and Petition No. 245 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/142/eng@2016-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.