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ELCAllowedJudicial Review Application (Mombasa) - notice of motion dated 26.2.2013 within the substantive motion dated 28.12.2012· [2015] KEELC 192 (KLR)

Republic v Town Clerk Municipal Council of Mombasa [2015] KEELC 192 (KLR)

High Court of Kenya
8 October 2015
1,241 words in judgment
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The bottom line

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Kenya's High Court ordered Mombasa's Municipal Council to hand over development approval documents within 60 days, confirming citizens can use Article 35 to demand such records.

What this practically means

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Executive summary

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This ruling by A. Omollo J of the High Court at Mombasa, delivered on 8 October 2015, determines a notice of motion dated 26.2.2013 filed by the interested party, Mohamud Amin Ali, within judicial review proceedings challenging a demolition notice issued by the Municipal Council of Mombasa over structures on plot No. 5141/1/MN, Utange, Mombasa. Anchored on article 35 of the Constitution, sections 3 and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, the interested party sought an order compelling the Council to supply, before the substantive motion was heard, the documents specified in an annexed schedule - materials required under the Physical Planning Act and Building Regulations when development permissions are granted. The ex-parte applicants opposed the application, arguing it was intended to delay the hearing of their substantive motion, was improperly brought within judicial review proceedings, and that the interested party could not hold brief for the respondent, which had not opposed the review. The court reiterated that in judicial review the merits are not examined but only the procedure used to reach the decision, and asked whether the documents were necessary for the issues before it. Noting that the respondent's representative swore two conflicting affidavits - one denying and one admitting that approvals were issued - and that none of the ex-parte applicants' affidavits directly opposed the orders sought or annexed the listed documents, the court applied the conditions in Njuguna Ndungu vs EACC: the information was requested, is held by the respondent, and its disclosure would not violate public interest. Finding merit in the motion, the court ordered the respondent to supply the documents within 60 days, failing which the case would proceed on the premise that no such documents exist, with costs in the cause.

Key legal issues

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01

Whether the interested party had met the conditions for access to information under article 35 of the Constitution

Holding

The court held that the applicant had met the conditions under article 35 and that the motion dated 26.2.13 had merit; the respondent was ordered to supply the documents within 60 days.

Reasoning

The court reasoned that the information had been requested by letter of 4.2.2012 but not supplied; the documents ought to be in the possession of the respondent as the body required to keep copies; and no suggestion was made that disclosure would violate public interest. The court was also of the view that the documents, particularly item (d), would determine whether approvals were validly given, especially given the respondent's two conflicting affidavits.

p. 3
02

Whether the documents sought were necessary for the determination of the issues before the court in the judicial review proceedings

Holding

The court found the documents necessary because the notice of demolition alleged construction without approval, a fact denied by the ex-parte applicants, and the respondent's representative swore conflicting affidavits on whether approvals were issued.

Reasoning

The court noted that the ex-parte applicants' two affidavits did not directly oppose the orders sought and annexed none of the listed documents. Since an affidavit is treated as evidence on oath, and the respondent's representative (Mr Mwadime) denied approvals in one affidavit and admitted them in another, supplying the documents would enable the court to know the true position of the respondent.

p. 3

Legal principles established

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  • In judicial review the court considers the procedure used in arriving at a decision, not the merits of the decision.
  • Conditions for grant of access to information under article 35: the information must have been requested for, be held by the respondent, and its disclosure must not contravene public interest.

Court orders

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  1. 1.The respondent (Municipal Council of Mombasa) is ordered to supply the documents listed in the applicant's schedule within 60 days of the date of delivery of the ruling
  2. 2.In default of compliance, the Court will proceed with the case on the premise that no such documents exist
  3. 3.Costs of the application ordered in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 35
  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure RulesOrder 51
  • Physical Planning ActSection 31
  • Legal Notice No. 135 (Building Regulations)Regulation 38 of 1998

Cases cited (2)

  • ABN Amro Bank vs Kenya Pipeline Corporation
    (2014) eKLR
  • Njuguna Ndungu vs EACC & 3 Others (Professor Njuguna Ndungu vs EACC & 3 Others)
    (2014) eKLR
Jurisdiction invoked
Article 35 of the Constitution; sections 3 and 3A of the Civil Procedure Act; Order 51 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Town Clerk Municipal Council of Mombasa [2015] KEELC 192 (KLR)", Case Analysis (2015). Judicial Review Application (Mombasa) - notice of motion dated 26.2.2013 within the substantive motion dated 28.12.2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/192/eng@2015-10-08

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