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ELCDismissedJudicial Review Notice of Motion dated 22/01/2024

Republic v Director of Planning Compliance & Enforcement, Nairobi City County; Waska Company Limited (Ex parte Applicant) (Judicial Review Application E012 of 2023) [2025] KEELC 4908 (KLR)

High Court of Kenya
26 June 2025
3,764 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's High Court dismissed a judicial review challenge to a county enforcement notice, ruling that land ownership disputes must be fought in civil courts, not review proceedings.

What this practically means

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Executive summary

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The Ex-Parte Applicant, registered proprietor (through sub-lease) of LR No. 28223/33/C2, moved the High Court at Thika by Notice of Motion dated 22 January 2024 seeking certiorari to quash an enforcement notice issued by the Nairobi City County on 16 October 2023, prohibition against its enforcement, and an order that leave operate as stay. The Applicant complained that the Respondent had trespassed onto its property and erected GCI-sheet structures while the enforcement notice in fact targeted the owners, developers and occupiers of LR 5980/1 Kiambu Road, a different parcel. The Respondent, through its Acting County Solicitor W.S. Ogola, opposed, contending the notice was not directed at the Applicant, which therefore lacked locus standi, and that the Applicant had bypassed the appeal to the County Physical and Land Use Planning Liaison Committee under section 72(3) of the Physical and Land Use Planning Act, 2019. The court framed three issues: locus standi, entitlement to the review remedies, and costs. On locus, it adopted the wide 'sufficient interest' test (Lord Diplock in the National Federation case, applied in AIG Insurance) and found the Applicant had an interest since the notice would directly affect it. On the merits, however, the court held that the real dispute was ownership of land, a matter requiring viva voce evidence unsuitable for judicial review, relying on Sanghani Investment, Kisimani Holdings and Ephrahim Muriuki Wilson. The Applicant had chosen the wrong forum. The Notice of Motion was dismissed with no order as to costs.

Questions the Court framed

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

  1. 1.Whether the Applicant has locus standi to institute the application
  2. 2.Whether the Exparte Applicant has made a case for grant of the Judicial Review remedies sought
  3. 3.What orders should issue as to costs

Key legal issues

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01

Whether the Applicant had locus standi despite the enforcement notice naming a different parcel of land

Holding

The Applicant had sufficient interest because the enforcement notice would directly affect its interest in the land; the locus objection failed

Reasoning

The court accepted that in judicial review a party need only show sufficient interest, citing Lord Diplock's formulation. Although the notice named LR 5980/1 and the Applicant held a sub-lease over LR 28223/33/C2, the notice would directly affect the Applicant's interest in the parcel. The Respondent's locus objection therefore failed.

p. 5
02

Whether the Applicant made a case for judicial review remedies of certiorari and prohibition

Holding

No - the underlying dispute is one of land ownership, unresolvable in judicial review; the Applicant chose the wrong forum and the motion was dismissed

Reasoning

The parties' real conflict was ownership of the land the subject of the enforcement notice. Judicial review examines only the decision-making process on affidavit evidence; determining ownership would require viva voce evidence and cross-examination in civil courts. The court adopted Sanghani Investment and Kisimani Holdings and declined to resolve the land dispute disguised as judicial review.

p. 6

Legal principles established

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  • Judicial review is concerned only with the decision-making process, not contested ownership disputes requiring viva voce evidence
  • Locus standi in judicial review requires only sufficient interest, to be construed widely on the facts of each case

Court orders

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  1. 1.Dismissal of the Applicant's Notice of Motion dated 22/01/2024
  2. 2.No order as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 22(3) of the Constitution - judicial review of administrative action over which original jurisdiction is conferred on the High Court

Relief refused

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Order of certiorari quashing the enforcement notice dated 16th October 2023

The dispute is really about ownership of land, which cannot be determined in judicial review proceedings; the Applicant chose the wrong forum

p. 6

Order of prohibition and stay of the enforcement notice

The remedies sought would resolve contested factual issues of ownership unsuitable for judicial review

p. 8

Costs

No order as to costs - the Notice of Motion was dismissed with no order as to costs

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.

The issues raised by the parties are on the ownership of the subject properties of land, which cannot be a ground for granting Judicial Review orders.
p. 6Ownership disputes unsuitable for judicial review
The interests of justice will not be served by orders of Judicial Review.
p. 6Discretionary refusal of remedies
I find no merit in the Applicant’s Notice of Motion Application dated 22/01/2024. The same is dismissed with no order as to costs.
p. 8Final orders
Due to the foregoing, I find no merit in the Applicant’s Notice of Motion Application dated 22/01/2024. The same is dismissed with no order as to costs. It is so ordered.
p. 8Disposition

Issues in the judgment

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minor

Respondent grounded locus objection on non-exhaustion of the appeal mechanism under Section 72(3) of the Physical and Land Use Planning Act, 2019, but the court did not rule on exhaustion, instead deciding only on sufficient interest and forum

minor

Court cites section 38 of the Physical Planning Act for a notice issued in 2023 while the Respondent invokes section 72 of the Physical and Land Use Planning Act, 2019, without reconciling the two statutory bases

minor

The judgment records that the Respondent filed no submissions, yet the ruling quotes passages attributed to the Respondent's averments at length

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 Director of Planning Compliance & Enforcement, Nairobi City County; Waska Company Limited (Ex parte Applicant) (Judicial Review Application E012 of 2023) [2025] KEELC 4908 (KLR)", Case Analysis (2025). Judicial Review Notice of Motion dated 22/01/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4908/eng@2025-06-26

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