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ELCAllowedJudicial Review No. 7 of 2019

Republic v County Government of Laikipia Exparte Mohamed Asafa Woche [2020] KEELC 3281 (KLR)

Environment and Land Court
5 March 2020
4,325 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court quashed a county's stop-work notice and awarded damages because the landowner was never heard and approval was deemed granted by law.

What this practically means

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Executive summary

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This was a judicial review application by Mohamed Asafa Woche, the ex-parte Applicant, against the County Government of Laikipia. The Applicant, registered owner of leasehold parcels L.R. No. 10422/96 and 10422/98 opposite the British Army camp in Nanyuki, applied for development approval between June and August 2019. He obtained approvals from the National Land Commission, NEMA, Public Health, Land and Physical Planning, the County Engineer and the Ministry of Infrastructure, and paid all requisite fees, but received no written response from the Respondent. On 4th September 2019 an enforcement notice requiring him to stop construction was served, signed by a works officer rather than the county executive committee member. The Respondent filed no response to either the leave application or the substantive motion. The court found that under Section 58(6) of the Physical and Land Use Planning Act, development permission was deemed granted where no written response issues within sixty days, and that the enforcement notice was ultra vires, unlawful and un-procedural, having been issued without a hearing in breach of Article 47 of the Constitution and Section 4 of the Fair Administrative Actions Act. Applying the Anarita Karimi Njeru precision standard, the court held the violation was properly pleaded. The court issued certiorari quashing the enforcement notice, prohibition against further stoppage of works, mandamus compelling unconditional issuance of the development permission, general damages for the disruption from 4th September 2019 to judgment, and costs to the Applicant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the exparte Applicant was entitled to the relief sought
  2. 2.Whether the Court had jurisdiction to grant the orders sought
  3. 3.Whether the Court had power to grant damages to the ex-parte Applicant
  4. 4.The issue of costs
  5. 5.Whether the Petition discloses a legal interest capable of protection under the law
  6. 6.Whether there was breach of Article 47 of the Constitution as read with Section 4 of the Fair Administrative Actions Act
  7. 7.Whether the Petitioner was entitled to the orders sought

Key legal issues

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01

Whether the enforcement notice issued by the Respondent violated the ex-parte Applicant's right to fair administrative action

Holding

The enforcement notice was unlawful and un-procedural as it was issued without affording the Applicant a hearing and by a works officer rather than the county executive committee member

Reasoning

The court found the issuance of the enforcement notice was undisputed administrative action, attracting the duty to act expeditiously, lawfully and procedurally fairly. The notice stopped construction already approved without any opportunity to be heard, breaching Article 47 and Section 4 of the Fair Administrative Actions Act. The notice was also signed by a works officer not authorised under the Physical and Land Use Planning Act, rendering it ultra vires.

p. 7
02

Whether development permission was deemed granted under Section 58(6) of the Physical and Land Use Planning Act

Holding

Having received no written response from June 2019 to the filing of the application, the Applicant's development permission was assumed granted by operation of law

Reasoning

The Applicant applied for development approval between June and August 2019, secured approvals from NLC, NEMA, Public Health, Land and Physical Planning, the County Engineer and Ministry of Infrastructure, and paid all fees. No written response came within sixty days as required, so Section 58(6) deemed permission granted, making the later enforcement notice to stop the approved construction unlawful.

p. 3
03

Whether the Court had jurisdiction to entertain the judicial review application

Holding

The Court had jurisdiction under Section 93 of the Physical and Land Use Planning Act, which vests disputes relating to physical and land use planning in the Environment and Land Court

Reasoning

Counsel relied on Section 93 of the Physical and Land Use Planning Act which provides that all disputes relating to physical and land use planning, before establishment of the national and county liaison committees, shall be heard and determined by the Environment and Land Court. The court accepted this submission; the Respondent filed no response or appearance and did not contest jurisdiction.

p. 2
04

Whether the Court could award damages in judicial review proceedings

Holding

General damages were awarded for the unfair disruption of the Applicant's construction works

Reasoning

The Applicant relied on Republic v County Government of Laikipia [2019] eKLR where damages were granted in a similar matter. The court found the contravention of Section 58(6), 60 and 61 of the Act infringed the Applicant's Article 47 rights, and in the final orders compelled the Respondent to pay general damages for the disruption from 4th September 2019 to the date of judgment.

p. 7
05

Whether the Petition disclosed a violation with the precision required by Anarita Karimi Njeru

Holding

The Applicant satisfied the Anarita Karimi Njeru standard by identifying the specific Articles infringed and availing affidavit evidence of the violation

Reasoning

Applying the Anarita Karimi Njeru standard, the court found the Applicant clearly identified the relevant and specific constitutional provisions (Article 47 and Section 4 of the Fair Administrative Actions Act) and set out with reasonable precision the provision infringed, the manner of infringement, and supported the claim with affidavit evidence of the enforcement notice and approvals obtained.

p. 4

Legal principles established

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  • Where an applicant does not receive a written response to a development permission application within sixty days, permission is by law assumed to have been granted
  • An administrative body adversely affecting a person's interests must afford a hearing before taking its decision; failure to do so violates Article 47 and Section 4 of the Fair Administrative Actions Act
  • A decision in breach of natural justice cannot be cured by showing the same decision would otherwise have been reached
  • Judicial review is concerned with the decision-making process, not the merits of the decision

Court orders

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  1. 1.An order of certiorari quashing the Enforcement Notice dated 4th September 2019 requiring the ex-parte Applicant to stop further works
  2. 2.An order of prohibition against the County Government of Laikipia, its agents, employees and any person acting on its behalf from stopping further works on L.R. No. 10422/98 and L.R. No. 10422/96 - Trench Farm
  3. 3.An order of mandamus compelling the County Government of Laikipia to unconditionally issue the development permission for the ex-parte Applicant's construction works
  4. 4.General damages payable by the Respondent for the unfair disruption of the ex-parte Applicant's development and construction works from 4th September 2019 to the date of judgment
  5. 5.Costs of the proceedings to the Applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 93 of the Physical and Land Use Planning Act, 2019 read with Order 53 of the Civil Procedure Rules, 2010 and the Law Reform Act (Cap 21)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

i. An order of certiorari is herein issued to bring to this Court for the purposes of quashing the Enforcement Notice dated 4 th September 2019 requiring the Ex-parte Applicant to stop further works until approval is complete with immediate effect.
p. 7Final orders - certiorari
iii. By an order of Mandamus, the County Government of Laikipia by itself, agent, employee or any person acting on itself is herein compelled to unconditionally issue the development permission to the ex- parte Applicant's Construction works.
p. 7Final orders - mandamus
iv. The Respondent shall be compelled to pay general damages for the unfair disruption of the ex-parte Applicant's development works and construction works from the 4th September 2019 to the date of the delivery of this Judgment.
p. 7Final orders - damages
v. The Applicant will have the costs of these proceedings.
p. 7Final orders - costs
I find the notice herein issued to the Petitioner both unlawful and un-procedural. The Respondent was obliged to afford the Applicant a hearing before it made its decision which decision, was undoubtedly bound to adversely affect the interest of the Applicant by requiring it to stop the construction on his property.
p. 7Breach of fair administrative action
Where an Applicant does not receive written response for development permission within sixty days, such permission shall be assumed to have been given in terms of this Act.
p. 5Deemed development permission - Section 58(6)
Procedural fairness necessarily requires that persons who are likely to be effected by the decision be afforded an opportunity of being heard before the decision is taken.
p. 7Right to be heard

Issues in the judgment

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minor

Paragraph numbering repeats - two paragraphs are numbered 25

minor

The judgment inconsistently refers to the matter as both a judicial review motion and a petition/petitioner

minor

The court's issues list refers to a 'Petition' and 'Petitioner' although the matter is brought by a Notice of Motion by an ex-parte Applicant

minor

The ex-parte Applicant relied on the Joyce Manyasi passage which found NO breach of legitimate expectation, though it was cited to support his claim of breach

minor

Conflicting statutory references - the court cites both the repealed Physical Planning Act Cap 286 (Sections 38 and 72) and the Physical and Land Use Planning Act 2019 for the enforcement notice provisions

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 County Government of Laikipia Exparte Mohamed Asafa Woche [2020] KEELC 3281 (KLR)", Case Analysis (2020). Judicial Review No. 7 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3281/eng@2020-03-05

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