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Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the excerpt· [2018] KECA 381 (KLR)

Legal Advice Centre & 2 others v The County Government of Mombasa & 2 others

Court of Appeal of Kenya
5 July 2018
6,152 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld Mombasa County's urban renewal project, ruling that meetings, press conferences and questionnaires amounted to adequate public participation.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal at Mombasa against a High Court judgment of Otieno, J. dated 23 December 2016, which had dismissed a constitutional petition challenging the County Government of Mombasa's Urban Renewal & Regeneration Programme targeting ten dilapidated estates, save for a finding that the appellants' right of access to information under Article 35 had been breached. The appellants contended that the project was formulated without adequate public participation, infringed the right to adequate housing, and breached several statutes. The Court first confirmed that both the appellants and the 1st interested party, an umbrella body of 388 tenant households, had standing under Articles 22 and 258 despite holding divergent views. On the merits, the Court affirmed the Judge's finding that public participation was adequate: meetings, press conferences, briefing of MPs, structured questionnaires and a dedicated complaints department satisfied the constitutional threshold, and the County had discretion over the medium used provided widest reach is ensured. It was not necessary to consult every resident, nor was participation required at the mere conceptualisation stage. On housing, the appellants produced no evidence that the County would retain only 20% of new units or that the purchase prices were unreasonable; a party alleging constitutional violation must prove it. Statutory complaints under EMCA, the PPADA, the Physical Planning Act, the Privatization Act and the PPP Act were premature, relevant approval processes not yet having commenced, and statutory remedies had to be exhausted first. The appeal was dismissed in its entirety with no orders as to costs, the Court characterising the matter as public interest litigation.

Key legal issues

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01

Locus standi of competing representative bodies

Holding

Both the appellants and the 1st interested party could represent the tenants of the suit estates; divergent positions do not defeat standing under Articles 22 and 258 of the Constitution.

Reasoning

Relying on Mumo Matemu, the Court held that the 2010 Constitution enlarged standing; tenants may hold diverse opinions and multiple bodies may represent them. The 1st interested party could not be excluded merely because the appellants called it an amorphous body.

p. 8
02

Adequacy of public participation in formulating the Urban Renewal Programme

Holding

The participation facilitated was adequate; consultation of tenants and dissemination through press conferences, briefings and questionnaires met the constitutional threshold.

Reasoning

Applying Doctors for Life and local precedent, the Court held the County had discretion over the medium of participation provided widest reach is ensured; not all residents needed to be consulted, only stakeholders given a reasonable opportunity. Requiring participation at the mere conceptualisation stage would be unreal.

p. 11
03

Right to adequate housing under Article 43

Holding

The appellants failed to demonstrate any violation or threatened violation of the right to housing; the project in fact expands housing stock from 3,039 to over 31,000 units.

Reasoning

No evidence supported the claim that the County would retain only 20% of units, nor that the purchase price was unreasonable. The Court noted private partners are entitled to returns and have no constitutional obligation to provide free housing.

p. 11
04

Alleged breach of statutory regimes and exhaustion

Holding

The statutory complaints were premature since regulatory approvals had not yet been sought, and statutory mechanisms must be exhausted before a constitutional petition.

Reasoning

The project was to be undertaken in stages with compliance required under the respective statutes at each stage; some processes such as the EIA had not commenced. Where statutory mechanisms exist, they must be exhausted first, following Okal v Telkom and Njenga Karume.

p. 11

Legal principles established

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  • Adequacy of public participation is determined case by case; the public body has discretion in choosing the medium provided it ensures the widest reach and affords a reasonable opportunity to be heard.
  • The intensity of impact on an identifiable affected group shapes the degree of participation required; it is not necessary to consult every resident.
  • Public participation must be real and substantive, not a formality or public relations exercise.
  • A party alleging constitutional violation must prove it, not merely assert it.
  • Statutory dispute-resolution mechanisms must be exhausted before resorting to a constitutional petition.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.No orders as to costs, the matter being a public interest matter
On appeal from
High Court of Kenya
Not stated in the excerpt
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court on a constitutional petition (constitutional/appellate jurisdiction; specific provision not stated in the excerpt)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Legal Advice Centre & 2 others v The County Government of Mombasa & 2 others", Case Analysis (2018). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/381/eng@2018-07-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.