Republic v Nairobi City County, Ex Parte Jackson Kiriinya Nairuti

Court, this Honourable Court be pleased to conduct a site visit to the property herein for its own assessment of the current state of the building on the suit property. iv) THAT upon hearing this application inter partes, this Honourable Court be pleased to review its ex parte orders dated 29th October 2024 and set aside the said orders and allow the implementation of the Enforcement Notice dated 28th November 2022 as well as the Enforcement Notice dated 16th October 2024. v) That upon grant of prayer 4 above, an order be and is hereby issued directing the OCS Kasarani Police Station or any other Police Station to supervise and ensure enforcement of the said order. vi) THAT this Honourable Court be pleased to issue further or better orders as shall meet the ends of justice. vii) THAT the costs of this application be in the cause. 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Wilfred Masinde sworn on even date. THE APPLICANT’S CASE ELC JUDICIAL REVIEW NO. E006 OF 2024 2

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3. The deponent averred that the suit herein was filed in 2024 pursuant to an Enforcement Notice dated 16 th October 2023, seeking to halt any further development and/or construction of a five-level building on L.R. No. 7978/53 (Plot No.249) along Mirema Drive, on the ground that the building was in a ruinous and dangerous state. He annexed a copy of the Enforcement Notice. He further averred that, before the Enforcement Notice dated 16th October 2023, Nairobi City County had issued a similar Notice dated 28th November 2022, seeking to halt further development on the suit property for the same reasons. 4. He further averred that the Nairobi County Deputy Director responsible for Development Inspection and Planning obtained vital information not previously part of the Court’s record. He stated that he had received complaints from members of the public that the building was on the verge of collapse, leaning to one side with visible cracks on both beams and columns. He produced photographs of the building in support of these allegations. 5. He further averred that the building is adjacent to Mirema School and a neighbouring residential block, and that its questionable structural integrity poses a real and grave danger to the general public living along and using Mirema Drive. 6. He explained that, following a subsequent inspection by the County inspection team, it was confirmed that the Respondent’s building is structurally compromised and poses an imminent risk to public safety, ELC JUDICIAL REVIEW NO. E006 OF 2024 3

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7. The deponent asserts that there is no record showing that the Respondent, his agents, or the developer of the impugned building submitted architectural or structural plans to the relevant County authority for approval. Consequently, the developer occupied the suit property without an occupation certificate. He further averred that, in blatant breach of the order dated 29th October 2024 directing the maintenance of the status quo, the Applicant or his agents commenced the demolition or removal of the building in February 2026 without obtaining the requisite demolition permit from Nairobi County, contrary to Regulations 4 and 26 of the Physical Land Use and Planning Act Regulations. In this regard, he produced photographs depicting the ongoing demolitions. 8. He argued that if the matter proceeded to judgment without considering this critical evidence, the Applicant and the general public would suffer irreparable prejudice. In conclusion, he urged the court to allow the application as prayed. THE EX APPLICANT’S CASE 9. The Applicant filed grounds of opposition dated 27 th April 2026 in opposition to the application. The Applicant contends that the application is incompetent, fatally defective, and an abuse of the Court process. He further contends that the application offends the provisions of the Civil Procedure Rules, raises issues the Court cannot entertain, and fails to disclose a reasonable cause of action against him. He argues that the ELC JUDICIAL REVIEW NO. E006 OF 2024 4

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pleadings were closed and that the Court had reserved a date for ruling. He urges the Court to dismiss the application with costs. ANALYSIS AND DETERMINATION 10. Having considered the application and the grounds of opposition, the sole issue for determination is whether the orders dated 29th October 2024 should be reviewed and/or set aside. 11. The law governing applications for review is set out in Section 80 of the Civil Procedure Act and in Order 45, Rule 1 of the Civil Procedure Rules. 12. Section 80 of the Civil Procedure Act provides that: Any person who considers himself aggrieved – a) By a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or b) By a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. 13. Order 45 Rule 1 of the Civil Procedure Rules provides that: ELC JUDICIAL REVIEW NO. E006 OF 2024 5

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Any person considering himself aggrieved – a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred, or b) By a decree or order from which no appeal is hereby allowed and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of the judgment to the court which passed the decree or made the order without unreasonable delay. 14. The provisions of Order 45 were restated by the Court of Appeal in the case of Benjoh Amalgamated Limited & Another Vs Kenya Commercial Bank Limited (2014) eKLR where the Court held that: “In the High Court, both the Civil Procedure Act in Section 80 and the Civil Procedure Rules in Order 45 Rule 1 confer on the court power to ELC JUDICIAL REVIEW NO. E006 OF 2024 6

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review. Rule 1 of Order 45 shows the circumstances in which such review would be considered, ranging from discovery of new and important matter or mistake or error apparent on the face of the record or any other sufficient reason, but Section 80 gives the High Court greater amplitude for review.” 15. Similarly, in Republic Vs Public Procurement Administrative Review Board & 2 Others (2018) eKLR, the Court held that: “Section 80 gives the power of review, and Order 45 sets out the rules. These rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review.” 16. The Respondent contends that it subsequently discovered that the building erected on the suit property was compromised and posed a danger to the public. It relied on public complaints, photographs, and a subsequent inspection of the suit property. The issue for determination is whether this material constitutes new and important evidence within the meaning of Order 45 of the Civil Procedure Rules. The difficulty with this argument is that the alleged dangerous condition of the building is not a new issue in the proceedings. The Respondent’s evidence shows that the County had already issued an Enforcement Notice dated 28 th November 2022 and a subsequent Notice dated 16th October 2023, both relating to ELC JUDICIAL REVIEW NO. E006 OF 2024 7

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the development and its alleged dangerous or ruinous condition. 17. Accordingly, the Respondent cannot contend that the building's general structural condition or safety was unknown when the earlier orders were made. The mere fact that further complaints were received or that an additional inspection was carried out does not, in itself, constitute new and important evidence within the meaning of Order 45 Rule 1 of the Civil Procedure Rules. 18. For evidence to qualify as new evidence for the purposes of review, it must be shown that, despite the exercise of due diligence, it could not have been produced when the order was made. 19. In the matter at hand, there is insufficient evidence that the alleged structural concerns could not have been investigated and presented to the court before the orders dated 29 th October 2024 were issued. Based on the foregoing, this court finds that the Applicant has not demonstrated the discovery of a new or important matter of evidence that he could not have presented before the order was issued. 20. Regarding the second requirement, the Applicant must establish that there is an error apparent on the face of the record. In the case of Nyamogo & Nyamogo Vs Kogo (2001) EA 170, the court held that; “An error apparent on the face of the record cannot be defined precisely or exhaustively, ELC JUDICIAL REVIEW NO. E006 OF 2024 8

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there being an element of definitiveness inherent in its very nature, and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning, where there may conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong is certainly no ground for review, though it may be one for appeal.” 21. Similarly, in the case of Timber Manufacturers and Dealers Vs Nairobi Golf Hotels (K) HCCC No. 5220 of 1992, Emukule J held that: “For it to be said that there is an error apparent on the face of the record, it must be obvious and self-evident and does not require an elaborate argument to be established.” ELC JUDICIAL REVIEW NO. E006 OF 2024 9

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22. The Applicant has not pinpointed the errors that are apparent on the face of the record. 23. The Court is also required to consider whether there are sufficient grounds to review the Court’s judgment. In discussing what constitutes sufficient cause for review, the Court of Appeal in The Official Receiver and Liquidator v Freight Forwarders Kenya Ltd (2000) eKLR stated: “These words only mean that the reason must be one that is sufficient to the court to which the application for review is made, and they cannot, without at times running counter to the interest of justice, limited to the discovery of new and important matter or evidence or occurring of an error apparent on the face of the record.” 24. The Applicant states that after the orders of 29 th October 2024 were issued, it received complaints that the building was leaning to one side and had noticeable cracks in its beams and columns. A subsequent inspection confirmed that the building was structurally compromised and posed an imminent risk to the public. 25. I have considered that the dangerous or ruinous condition of the building had previously been raised and that enforcement notices dated 28th November 2022 and 16th October 2023 had been issued in that regard. However, the specific information concerning the cracks, the leaning of the building, and the subsequent inspection is stated to have been received after ELC JUDICIAL REVIEW NO. E006 OF 2024 10

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the orders of 29th October 2024 and was not part of the material then before the court. 26. In the circumstances, I find that the subsequent information constitutes sufficient reason within the meaning of Order 45 Rule 1. Accordingly, I find that the Applicant has established sufficient cause to justify the review of the orders dated 29 th October 2024. 27. The Applicant seeks leave to implement the enforcement notices dated 28th November 2022 and 16th October 2024. 28. Section 72 of the Physical and Land Use Planning Act provides the statutory framework governing enforcement, including the measures to be undertaken and the period within which compliance is required. It also confers a right of appeal to the County Physical and Land Use Liaison Committee on any person aggrieved by an enforcement notice. 29. The Court must therefore be satisfied that the notices sought to be enforced are valid, subsisting and capable of enforcement, and that there is no statutory or subsisting order preventing their enforcement. The existence of sufficient reason to review the order of 29 th October 2024 does not, without more, dispense with those requirements. The subsequent information concerning cracks and leaning of the building does not determine the validity of the enforcement notices. The decision on whether and how to enforce the said notices remains the statutory mandate of the Applicant and shall be undertaken in accordance with the law. Based on the ELC JUDICIAL REVIEW NO. E006 OF 2024 11

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foregoing, I decline the order seeking implementation of the Enforcement Notices dated 28th November 2022 and 16th October 2023. 30. In the end, the application dated 22nd April 2026 partially succeeds on the following terms: a) The orders issued on 29th October 2024 are hereby reviewed and set aside. b) Each party shall bear its own costs. RULING SIGNED, DATED, AND DELIVERED VIA MICROSOFT TEAMS THIS 25TH DAY OF SEPTEMBER, 2026. ……………………………………. HON. T. MURIGI JUDGE IN THE PRESENCE OF: Ms Mwangi, holding brief for Abdullahi, for the Respondent Vena – Court Assistant ELC JUDICIAL REVIEW NO. E006 OF 2024 12

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