Whitehorse Investments Ltd v Nairobi City County [2019] KECA 102 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Whitehorse Investments' challenge to a Nairobi County enforcement notice because it skipped the statutory appeal route to the Liaison Committee.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Environment and Land Court was seized of jurisdiction to hear the judicial review challenge to the enforcement notice, or whether the dispute fell within the Liaison Committee mechanism under the Physical Planning Act
- 2.Whether the granting of leave to commence judicial review, operating as a stay, amounted to a determination that the appellant had a prima facie case
- 3.Whether the appellant was required to demonstrate exceptional circumstances justifying exemption from the exhaustion requirement under Section 9 of the Fair Administrative Actions Act, and whether a stand-alone application was necessary to establish such circumstances
- 4.Whether the learned Judge erred in declining to grant the judicial review orders sought
Key legal issues
#Jurisdiction of the ELC versus the statutory dispute-resolution mechanism under the Physical Planning Act
The ELC was not seized of jurisdiction because the appellant had not exhausted the appeal mechanism to the Liaison Committee provided under the Physical Planning Act; the dispute over the enforcement notice was purely a physical-planning matter governed by that Act
The enforcement notice was issued under Section 30(1) of the Physical Planning Act and itself directed the appellant to appeal to the Liaison Committee. The dispute concerned development permission, inspections and enforcement, all covered by the Act, which contains an inbuilt stay under Section 38(7) pending appeal. The appellant moved the court three months after the notice without explanation, amounting to unreasonable delay under Section 9(1) of the Fair Administrative Actions Act.
Effect of leave granted to operate as a stay
Leave operating as a stay is a preliminary, exparte-type preservation order and does not amount to a finding of a prima facie case or confer jurisdiction where none exists
The court likened leave operating as a stay to an exparte interim injunction granted in exceptional circumstances to preserve property until rights are established. Jurisdiction had not been raised at the leave stage; it was only after hearing both parties that the court could consider it and find the statutory remedies had to be exhausted.
Expanded scope of judicial review under Article 47 and the Fair Administrative Actions Act
Although judicial review has been constitutionalised and expanded beyond common-law process review, the bifurcated remedies do not displace the statutory exhaustion requirement in Section 9 of the Fair Administrative Actions Act
Relying on Suchan Investments, the court acknowledged that Article 47 and the FAAA have subsumed common-law judicial review into one constitutional system. However, the appellant's application was filed purely under the Law Reform Act and Order 53 and did not invoke Article 47 or the FAAA, so the court was not moved to determine whether exceptional circumstances existed warranting relief before exhaustion.
Manner of establishing exceptional circumstances under Section 9(2) of the FAAA
No stand-alone application is required; exceptional circumstances may be demonstrated orally or found by the court sua sponte on the material before it
The court held that a party may have a good case for judicial review but be unaware of the stringent exhaustion requirements; therefore the court itself is not precluded from finding that the interest-of-justice criteria are satisfied from the material placed before it, even without being expressly moved.
Legal principles established
#- Where Parliament has provided a statutory appeal procedure, judicial review will only be granted in exceptional circumstances, and the court must examine the suitability of the statutory mechanism in the context of the particular case
- A party seeking exemption from the exhaustion requirement under Section 9(2) of the Fair Administrative Actions Act need not file a stand-alone application; exceptional circumstances may be demonstrated orally or found by the court on the material before it
- Leave to commence judicial review operating as a stay is a preliminary preservation order made without hearing the other side and is not a finding of a prima facie case
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- JR. No. 12 of 2008
- Jurisdiction invoked
- First appellate jurisdiction under Article 164 of the Constitution over the Environment and Land Court, whose jurisdiction is circumscribed by Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#Judicial review orders of certiorari and prohibition quashing and staying the enforcement notice
The appellant failed to exhaust the statutory appeal mechanism under the Physical Planning Act and did not demonstrate exceptional circumstances warranting exemption under Section 9 of the Fair Administrative Actions Act
Implied prayer that demolition-related relief be granted given the property had been demolished
The court declined to delve into the merits, which it had no jurisdiction to determine on judicial review
Costs
The appeal was dismissed with costs to the respondent: 'we find no merit in this appeal which we dismiss with costs to the respondent.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, we find no merit in this appeal which we dismiss with costs to the respondent.
where there is an alternative remedy and especially where Parliament has provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted
The above provision does not state that a separate application needs to be filed seeking certification, as it were, that exceptional circumstances exist for the requirements of the above provision to be met.
Jurisdiction is everything. Without it, a court has no power to make one more step. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction
even on the face of the application there is no invocation or reference to either Article 47 of the Constitution or the Fair Administrative Actions Act.
Issues in the judgment
#The enforcement notice reproduced in the judgment contains internally inconsistent and apparently erroneous dates, referring to an appeal deadline 'before the aforesaid 21st day of 10 of .2017' on a notice dated 14th December 2017
The judgment describes the lower court case as 'JR. No 12 of 2008' although the enforcement notice and proceedings arose in 2017-2018, suggesting the year in the case number may be misprinted
The notice of motion is referred to as dated both 12th March 2018 and, in the trial judge's quoted ruling, 12/3/2019
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- One Hundred and Two Peponi Road LLP & another v National Environment Management Authority & 2 others (Civil Appeal E326 of 2021) [2026] KECA 1380 (KLR)[2026] KECA 1380 (KLR)10 Jul 2026
- Thome V Resident Welfare Association (Suing on behalf of the Residents of Thome V Estate, Nairobi) v Nairobi City County & 2 others (Petition E109 of 2025) [2026] KEELC 1852 (KLR)[2026] KEELC 1852 (KLR)25 Mar 2026
- Malusha v Swaleh & another (Civil Appeal E051 of 2022) [2025] KECA 761 (KLR)[2025] KECA 761 (KLR)9 May 2025
- Kental Enterprises Ltd v Attorney General & 4 others (Petition 2 of 2019) [2025] KEELC 1470 (KLR)[2025] KEELC 1470 (KLR)24 Mar 2025
Cite this brief
#Cite this brief
Caselaw, "Whitehorse Investments Ltd v Nairobi City County [2019] KECA 102 (KLR)", Case Analysis (2019). Civil Appeal No. 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/102/eng@2019-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.