Republic v County Government of Nairobi & Pyramid Builders Limited ex-parte Isfandiar Sohaili [2017] KEHC 7766 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.624 OF 2016

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR

JUDICIAL REVIEW ORDERS OF CERTIORARI AND PROHIBITION.

AND

IN THE MATTER OF THE FAIR ADMINISTRATIVE   ACTION ACT, 2015

AND

IN THE MATTER OF PHYSICAL PLANNING ACT, CAP 286, LAWS OF KENYA

BETWEEN

REPUBLIC ………………………………………………………....APPLICANT

VERSUS

COUNTY GOVERNMENT OF NAIROBI………......…………...  RESPONDENT

PYRAMID   BUILDERS LIMITED……………......…...…INTERESTED PARTY

EX-PARTE DR. ISFANDIAR SOHAILI

RULING ON LEAVE

1. By a chamber summons dated  9th December  2016  and  filed on 13th December 2016, the applicant, Exparte Dr Isfandiar Sohailiseeks  from this court orders:

a) Spent

b)

c) Leave be granted for the applicant to apply for an order of certiorari  to bring into the High Court  for  purposes of  being  quashed  the administrative action of the County Government  of Nairobi  of   5th April, 2016  approving  the  building plan  for the construction of 5 Town Houses on LR3734/108  submitted  by Pyramid Builders   Limited;

c) Leave be granted for the applicant to apply for an order of prohibition directed at the County Government of Nairobi prohibiting it from approving any building plans on LR No. 3734/108 until the Urban Planning Committee is reconstituted.

d) The  leave granted  do operate  as stay  of the approval Ref CPD/DC/LR No.3734/108 pending hearing and  determination of the  notice of motion to be  filed.

e) Costs be provided  for.

2. The chamber  summons, which is  expressly brought  under the provisions of the  Physical Planning  Act, Cap  286 Laws  of Kenya; Order  53  Rules  1,2,& 4  of the  Civil Procedure  Rules, Articles  22 and  23  of  the Constitution  of Kenya,  2010, Sections  7(1) (a)  and  9 of the  Fair Administrative  Action Act No. 4 of 2015  and  all enabling  powers  and provisions  of the law, is supported by the statutory  statement and  verifying  affidavit  of Dr. Isfandiar Sohaili, a resident  of Kunde Road, Nairobi and a member of Kunde Welfare  Association, sworn on  9th December  2016  and  accompanied   by several annexed  exhibits.

3. The  gist of the  exparte applicant’s application as contained  in the grounds set out in the statutory statement   and the depositions   by Dr. Isfandiar Sohaili is that on 4th May 2016  the interested  party herein Pyramid Builders Limited were granted  an approval  by the Nairobi City  County to develop  six  town houses  on LR  No. 330/485  along  Kunde  Road  in Nairobi.

4. That  the residents  of Kunde  Road Nairobi were dissatisfied  with the said approval  and  lodged  an appeal  under the provisions  of the Physical  Planning Act but  that they have  been informed  that the Liaison Committee of the respondent  has not  been sitting  and thus  the Appeal cannot  be heard.

5. That the  issuance of the  approval by the Nairobi City County was tainted  with illegality  and  conflict   of interest  as both  the  projects architects  and the contractor  are members of the  Urban  Planning  Technical  Committee  of the Nairobi City County and used  their positions  to influence  the  approval of  the  plans.

6.  That  the  presence  of the Contractor  and the Architect  in the meeting culminated in the approval of the development on LR No. 330/485 which is contrary  to Chapter  6 of the Constitution and the County Government Act, 2012.

7. That it was after the issue of conflict  of interest   was brought  to the attention  of the  respondent’s   Executive  Committee meeting  of  13th October  2016  that a directive   was issued    freezing   the continued  development by the interested  party   on LR  No. 330/485, Kunde  Road.

8.  That  the approval for the development  of the property  was done  without due  regard  to procedural  requirements  of the Physical  Planning  Act; and that the Residents of Kunde  Road  were never  consulted  in the process leading  to the issuance  of the approval as envisaged  in the Physical Planning  Act.

9. That on 27th August  2015 the County Executive Committee  of the respondent  unanimously  adopted the  petition  by the Kunde  Road Welfare  Association  to maintain  the status quo of houses at  Kunde Road  single dwelling  units  and issued  a  directive  freezing  the  permission of multi dwelling  units around  Kunde Road and the development   by the   interested  party on LR No. 330/485   Kunde Road.

10. That the purported approval by the 1st respondent of the development on LR  NO. 330/485 is illegal  and  violates  the rights  of the residents  of Kunde Road  as the architect  and  contractor sat as judges  in their own cause despite  the  fact that the  exparte  applicant  had grave concerns   about the  approval of  the  development  approval.

11. That the Kunde Road   Welfare Association filed appeal No. 186/2016    against the interested party and obtained a stop order restraining any development   in the property.

12. That it is  in the interest of  justice   that the reliefs  sought are  granted  to protect  the applicant’s  interests  as a resident    of  Kunde Road  and  further, to uphold the principles  and virtues   espoused  under Chapter Six  of the Constitution.

13. The exparte applicant   annexed to the affidavit annextures which include: Approval  of development  on LR  330/485  dated  4th May  2016   given   to the interested  party  by the respondent; the  plans  thereto; change of user  Form, PPA 8 dated  1st August  2016 being an appeal against development Planning  decision  on LR  330/485 by  Kunde Residents  Welfare  Association; memo  dated   13th October   2016   to CECM Lands  & Urban  Planning  from  Ag. County Secretary  on the subject  of CEC Resolutions on Kunde Road Residents Welfare  Association, notifying  of  stop order  against the  developer; minutes of 27th August 2015; A guide of Nairobi City Development  ordinances and zones NEMA Tribunal Appeal No. NET/186/2016 by Kunde Road Residents Welfare Association against the Director General NEMA’s grant of License No.NEMA/EIA/PSL/3468 and an application Reference No. NEMA/EIA/PSR/6467 issued  on 18th July  2016   on LR  330/485; stop  order from NEMA dated  9th August  2016   to the interested parties stopping construction of residential town Houses on LR  330/485 along Kunde Road, Thompson Estate, Nairobi  City County.

14. In opposition to the chamber summons, the respondent Nairobi City County filed grounds of opposition dated 18th January 2017 contending that:

a. The application refers to a nonexistent Development permission(building approval)and is therefore fatally defective  and incurable; and that  there is  a pending  suit before   the  High Court  constitutional  and  Human Rights  Division Petition No. 316  of 2016   between the same  parties  herein and  involving  the same  subject  matter  and  as such  the instant  application   is an abuse of the court process.

15. The interested  party, Pyramid  Builders  Ltd  did not  file any response to the chamber  summons but its   counsel Senior Counsel Mr Ahmednasir Abdullahi submitted orally in opposition to  the  chamber  summons, raising   points of  law.

16. The chamber summons was canvassed orally with Mr James Ochieng Oduol submitting on behalf of the exparte applicant, Mr Oonge for the respondent and Senior Counsel Ahmednasir for the interested party.

17. In his submissions, Mr Ochieng Oduol submitted, relying on the statutory statement, verifying affidavit and annextures, constitutional and statutory provisions.

18. According  to Mr Ochieng Oduol, every  person is  guaranteed  by the constitution  expeditious  and  lawful administrative  action  and that  this court  has the jurisdiction to entertain  the  present  application for leave to apply for Judicial Review   orders of certiorari  and  prohibition.

19. Further, it  was  submitted on  behalf of  the applicant   that the right   to a clean and healthy  environment  under Article  42  of  the Constitution and  regulations  of land use  and  planning  under Article  46  of the Constitution  are matters  which the court  must take cognizance of and that it is for that  reason  that Section 32 of the Physical Planning Act enjoins the respondent   to approve building  plans.

20. Mr Ochieng Oduol  submitted that in  this matter, there  was  no  public participation; that there was no environment  impact  Assessment done  under Section  36  of the  NEMA Act; and that the purported approval was presided over by the Architect  and project  contractor  who sat  in their own  cause hence  the approval  is  invalid.

21. That the residents of Kunde Road having made  representation to the County Government  of Nairobi and there being a resolution that status quo ought to be maintained, to the effect  that the  estate retains  the single dwelling  residential  area, then the  subsequent  approval for town houses was contrary to the resolution of  the County Government.

22. On the internal appeals  mechanism, it  was submitted that the County Government had not set up any appeals  mechanisms  hence the stay sought  ought to preserve  status quo, since it  would fly  in the face of the court  if the  court at the end  of it all, would find that there  was  breach of statutory  provisions.

23. Counsel for the applicant submitted that there was no involvement of the National Land Commission, yet its role   in land use planning   is critical.

24. Further, that there is a legitimate   expectation as resolved by the County Government to maintain the status quo of the Kunde Road Estate hence the respondent could not have approved development plans contrary to its own earlier resolution for status quo to be maintained.

25. In addition, it  was  submitted on  behalf  of  the applicant that the remedy under the Physical Planning Act relates to approval of building plans whereas proceedings before NEMA  Tribunal  are concerned  with whether  the applicant has complied with all the requirements under NEMA Act hence the remedies  under the  respective  statutes  are different.

26. Counsel for the applicant maintained that the applicant’s application was not frivolous, vexatious or filed for collateral purposes.  That the application  discloses  a cause  of action  in that the  building  plans  were approved without  complying  with the Physical Planning Act; there was no public  participation in the change of  user  process  and that the  contractor  and  the  Architect  sat in their   own cause.

27. Mr Ochieng Oduol further maintained that the application was not statute barred as Section 9(3) of the Law Reform Act is clear that there must be a judgment, Order, decree or conviction or other proceeding sought to be quashed. Further, that Section 9(3)  of the Law Reform Act does not  override the right under Article  50  of the Constitution  of Kenya, 2010  on the right to fair hearing   and  Article  25  which  stipulates  that the right  to a fair  hearing cannot be limited hence the Law Reform Act  cannot limit the  right to a fair  hearing  espoused  in Article  50 of the  Constitution.

28. According to Mr Ochieng Oduol, the applicant  sought the  intervention of the High Court because  the  Physical Planning  Liaison Committee was not sitting hence the applicant  should  not be denied   access to the High Court’s Judicial Review  remedy, which is a constitutional remedy under 2010 Constitution, Article  23.

29. Further, that  there are  exceptional circumstances  to warrant   grant of leave  and  stay and that  there  will be no prejudice  against the  respondent   who must  justify  how the  approvals  were given, without   public participation, and  contrary to the provisions  of the Physical Planning  Act.

30. Mr Ochieng Oduol  submitted  that the applicant  only came   to court  upon  discovery  that the Liaison  Committee  was not  sitting  and  that in any case, he disclosed   to this court  the fact that there was an appeal pending before NEMA  Tribunal.

31. In an  intensive opposition to the applicant’s  application for leave and stay, Senior Counsel Mr Ahmednasir Abdullahi representing the interested party submitted that the leave sought  is  not available  to the applicant because  the decision which  is impugned  was made on 5th April  2016 which is over  6 months  prior to  the filing of the application for leave contrary to the provisions of Section 9(3) of the Law Reform Act and  Order 53 of the Civil Procedure Rules which expressly prohibits  the  filing of an application for Judicial Review Order of  certiorari  unless  leave is sought within 6 months from the date of the  decision.

32. That in this case the decision was challenged   in court on 9thDecember 2016 almost three months  after the expiry  period on  5th October  2016. Senior Counsel maintained that the court cannot confer   upon the applicant a right  which is  denied  by statute and that these  proceedings are  a nullity  in that the  court cannot  even  grant   leave for  prohibition  where certiorari  is not  available.

33.  Senior  Counsel  further submitted that the  court cannot   grant the orders sought as Section 9(2)of the Fair Administrative Action Act, No. 4  of 2015  clearly  bars  the court from  reviewing   an  administrative  action or decision unless the mechanisms  for review  or appeal  under  any written  law  are exhausted.

34. Further, that there is a clear admission by the applicant  at paragraph  6 of the verifying  affidavit that upon learning of the approval of the development  plans  by the respondent, the residents   of Kunde   Road   lodged  an appeal  against   the said approval  under the Physical Planning Act but that the Liaison  Committee of the respondent  has not been sitting  and thus there   is an  alternative   remedy  available  to the  applicant  which he has not  exhausted  as stipulated  by Section 9(2)  of the Fair  Administrative Action Act and therefore  this court   has no jurisdiction to hear and determine these Judicial Review  proceedings.

35. That there  are no  exceptional  circumstances  to warrant   exemption  from alternative  remedies  and that Section  9(4) of the Fair Administrative Action Act  addresses  those special  circumstances  and that only on an  application would the court consider  exemption from seeking  those  available  remedies  but that in this  case, no such  application has been  filed and neither has the court exempted  the applicant  from  seeking  those  alternative   remedies.

36. Counsel relied   on the  case of  Republic  vs  The Principal  Magistrate, Lamu Magistrate’s Court  and  Abdul Wahidi  Mohamed  alias otherwise  exparte  Kenya  Forest  Service [2016] e KLR(Mombasa  JR  54/2015.

37. Senior Counsel  further submitted that leave  is not  automatic  and  neither is it  a matter of course that is  why jurisdictions like England, an application for leave is  considered inter parties  at a substantive  hearing.

38. That in this case, there is no prima  facie  arguable  case from  a superficial  interrogation of the law  since the court  cannot  do anything  about statutory  time   limits  under Section  9(3)  of the Law Reform Act and Order  53  of the Civil  Procedure  Rules.

39. Senior Counsel submitted that there is no  constitutional  right  which the Law Reform  Act is  limiting  and that  moreso, the  application is not brought  under the  Bill of rights  litigation  hence Article  50 of the Constitution is not relevant  to these  proceedings  as it recognizes  disputes  that can be  resolved  by application  of the law which is the Law Reform Act  and which  law provides for limitation period  of 6 months  from the date  of the decision  being  challenged  hence there   is no conflict  between the  Law Reform Act and the Constitution.

40. Further, that the court cannot quash as the approval being   challenged is subsisting.

41. Senior Counsel  further contended that parties  before this court  have litigated   over the same   matter vide  Petition No. 316/2016 and that even  as at the time of hearing of this application, the orders  of Honourable Mureithi J are  in force as  made on  7th September  2016.

42. Senior Counsel further argued  that  in any event, the  applicant’s application had all along referred  to LR  3734/108 yet the disputed property  is LR  330/485  along  Kunde  Road  which is  a fundamental incurable error.

43. Further, that the applicant  is circumventing  the ruling  of Mureithi J made on 7th September  2016 which is still in force in the sense that albeit it was suspended pending the  determination of the appeal by the NEMA Tribunal, the NEMA  Tribunal  did dismiss  the appeal and  lifted  the stop order.

44. Therefore, it was submitted that the applicant is abusing   the court process   as there is no successful challenge to that decision by Mureithi J and or  to the decision by NEMA  Tribunal dismissing the appeal.

45. Further, that the court should take note of the non  disclosure of the said proceedings and decisions by Honourable Mureithi  J and  the NEMA  Tribunal.  Reliance    was placed  on the House of Lords decision  in Hunter  V Chief  Constable  of West  Midlands & Another [1981] 3ALL ER 727 to advance  the argument  on the  circumstances   in which abuse   of process  can arise.

46. It  was  argued that this court  should dismiss this application  as the issues  have been considered  and concluded  by a court of  competent  jurisdiction  hence it is  a scandal  to the administration  of  justice  if the same  question is cosmetically  brought for  determination   by this court.

47. Senior Counsel urged the court to dismiss the applicant’s  application with costs.

48. In opposition to the applicant’s  application Mr Oonge  counsel for   the  respondent   associated  himself   with all the elaborate  submissions by Senior Counsel Ahmednasir, while  relying  in the grounds of  opposition  filed  on  18th January  2017, and urged this court  to dismiss the  application with costs.

49. In a rejoinder, Mr Ochieng Oduol counsel for  the applicant  conceded  that there  was a mix up in the LR Nos.  330/485 Kunde Road   and LR 3734/108 as contained  in paragraph 8 of the  certificate of urgency in the statutory   statement  and the verifying   affidavit.  He urged  the court to invoke  the provisions   of Article  159  of the Constitution  to determine   this matter on merits, as the  subject  disputed  property is known  and that the court   can take cognizance  of such error.

50. On the existence of Petition No.316/2016 Mr Oduol submitted that the  same  was  filed by  the interested  party who  sought to stop the residents of  Kunde Road from allegedly  interfering  with  its rights  and that the  resident  has also  appealed  against  Nema’s grant  of  Environmental Impact Assessment (EIA) license  on 18th July  2010  which matter  has not been determined  by the  NEMA  Tribunal.

51. It  was further  submitted that in any case, Honourable Mureithi J  reviewed  his orders after  realizing that he had  granted them in error   as  there  was  a statutory  stay  upon  the matter being filed  before NEMA Tribunal challenging  EIA license  issued to  the interested  party by NEMA.

52. Further   that there  is an appeal  pending before  the Physical Planning  Liaison  Committee which  Committee is however  not sitting  and that neither are the issues before NEMA Tribunal  concluded  as the appeal  was dismissed  on a technicality   and that  there is  a pending   application to   allow the appeal  to be filed   out of time  hence there is  noResjudicata  as far as  Petition  316/2016  is concerned,  as the second ruling  of  3rd October  2016   stayed  the order   which does not  negate  the  pending appeal.

53. Mr Oduol maintained  that his  client  was not seeking  to stay  the decision of Mureithi J and  that neither  is there  abuse of court process as both statutes  provide  for the appeal  processes.

54. Further, that abuse of process is a question of fact yet there was no affidavit   on record   to show how court process   was being abused.

55. Further, that in this case, there is a  genuine  grievance  for the court to  grant the prayers  sought  in the chamber  summons  as the residents  of Kunde  Road  have not been  heard.  Counsel urged the court to grant   leave as sought   and  that such  leave  do operate as stay.

Determination

56. I have carefully considered the applicant’s application dated 13th December 2016.  I have  also considered   the interested  party’s grounds of opposition dated  16th January  2017  and the respective  parties’  advocates’  elaborate  submissions   and authorities  cited for  and  against the   chamber  summons.

57. In my humble view, the issues that flow for determination are:

1. Whether the proceedings herein are statute barred.

2. Whether there was any other efficacious alternative remedy which  the applicant  ought  to have  pursued.

3. Whether the applicant has  established  a prima facie  arguable  case for consideration  at a substantive  motion stage.

4. Whether the applicant is entitled to leave and stay.

5. What orders should the court   make.

6. Who should bear costs of   the application?

58. On the question of whether  these proceedings  are  statute   barred and therefore  a nullity, Senior Counsel Mr Ahmednasir  for the  interested  party submitted  that the  application herein offends   the clear statutory  provisions   of  Section 9(3)  of the Law Reform  Act Cap 26 Laws  of Kenya  and  Order  53 Rule  (2)  of the Civil Procedure  Rules  which clearly  stipulate   that no application  for Judicial Review  orders of certiorari  shall  be made  unless leave is  sought  within  6  months   from the date  of  the decision  and that the  decision  which is  impugned  having been  made on  4th May  2016, the application for leave  ought to  have been instituted  by  5th November  2016.

59. Therefore, it was argued that as this application was made on  13th  December   2016, the application is statute  barred and  so it ought  to be struck out.

60. In addition,  Senior Counsel argued  that as the  impugned  decision  exists, which is an approval for development  on the contested  parcel of land, where  the court  strikes out the request for  certiorari; then the prayer for prohibition  cannot  issue.

61. On the other hand, the applicant avers that the impugned decision is not an order, judgment, decree or proceeding contemplated under Section  9(3)  of the Law Reform  Act and  or Order  53(2)  of the Civil Procedure Rules.

62. Further, that in  any event, Section  9(3)  of the Law Reform  Act and  Order  53(2)  of the Civil  Procedure  Rules  cannot  override Article  159   of the Constitution which  stipulates  that  the court  in the  exercise of  judicial  authority  shall be  guided  by the principles  that justice  shall be  administered without  undue regard  to procedural  technicalities.

63. In the applicant’s  view, therefore, the application  is  in order  and not statute   barred  as alleged.

64. Section 9(3)  of the Law Reform  Act Cap  26  Laws  of Kenya  stipulates  that:

9(3)  In the case  of an application for an order  of certiorari  to remove  any judgment, order, decree, conviction  or other  proceedings for  the purpose  of its being  quashed, leave shall  not be  granted  unless  the application for  leave is made not  later than  six  months  after the date  of that   judgment, order,  decree, conviction or other proceeding or  such shorter   period  as may be  prescribed  under any  written law, and where  that judgment, order, decree, conviction or other  proceedings is subject to appeal, and  a time  is limited  by law  for the bringing  of the  appeal,  the court   of judge  may adjourn   the application for leave until the appeal  is determined  or the  time for  appealing   has  expired.”

65. The above   provisions are replicated in Order  53  Rule  (2)  of the Civil  Procedure  Rules.

66. It is not  in dispute that the  administrative  decision  which is being challenged by the applicant  is the decision of the Director  of Urban Planning  made on 4th May  2016 approving the applicant’s  application of a building  plan for  construction of Domestic Building being  Town Houses on LR  330/485  Kunde Road.  Attached to the said approval are the building  plans.

67. It is not   also not  in dispute that the  approval  was made  more than  six months  prior to the  filing of  these proceedings on  13th December  2016.

68. It is further  not in dispute that the applicant  brought  these proceedings pursuant   to the provisions  of Order 53  Rules  1,2, and  4  of the Civil Procedure  Rules  Articles  22 and  23  of the Constitution of Kenya, 2010, Sections  7(1) (a) and  9 of the Fair Administrative Action Act, 2015 and other enabling  provisions  of the law.

69. It is further not in dispute that the action being   challenged  was an  administrative action  of  5th  April 2016  approving  the building  plans for  the  construction  on LR  3734/108, albeit the parties are  all in agreement  that the  subject disputed property is LR 330/485, which error I consider   inadvertent on the part of the applicant’s counsel and  amenable  for correction   under  the inherent  jurisdiction of the court to read LR 330/485 and I so order for such correction.

70. Nevertheless, albeit  the applicant  claims that the administrative  action complained   of is not  an order, decree  or judgment  or conviction, the words  used in the  Law Reform Act  and  the Civil Procedure  Rules, in addition  to the above  words  is or  “ other  proceeding(s)”

71. Furthermore, in Judicial Review, the  court is never  concerned with the  decision and its merits  but the process  of that decision making hence the court in this case would be  concerned  with the proceedings  leading  to the administrative  action to  grant approval of the  building plans.

72. Further, the term ‘decision’ is defined under the Fair Administrative Action Act No. 4 of 2015 as “decision” means  any administrative  or quasi  judicial decision  made, proposed to be made, or required  to be made, as the case may be.

73. Section 2 of the Act also defines administrative action to include ii) any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.

74. It follows that the administrative action which is being challenged need not be anorder, decree or judgment or conviction, which words are used in the  Law Reform Act  and  the Civil Procedure  Rules, as the scope of judicial review has been expanded by Article 47 of the Constitution and the Fair administrative e Action Act which is the implementing legislation.

75. The Fair Administrative  Action Act  recognizes   not only  the orders, decrees, judgments  or other  conviction or other  proceedings  but act or omissions or decisions  made by an administrator as defined in section 2 of the Fair Administrative Action also defines  administrative action to include the powers, functions and duties  exercised  by authorities or quasi –judicial  tribunals, or any act, omission or decision of any person, body or authority  that  affects  the legal rights or interests  of any person  to whom  such action relates.

76. The Act further defines an administratorto mean  a person who takes an administrative action or who makes an administrative  decision.  It therefore follows  that not only  is leave  required to challenge an  order, judgment , decree, or conviction or  other proceedings, but also  an administrative  action taken or  failure to make an  administrative  decision that affects  the legal rights or  interests  of any person to whom such  action relates.

77. In my view, the Fair Administrative Action Act expands the scope of judicial review as traditionally known, although the Act does not oust the operation of Section 9(3) of the Law Reform Act in that under Section 12 of the Fair Administrative Action Act, it is clear that   the Act “is in addition to and not in derogation from the general principles  of common law and the Rules of natural  justice.”

78. Under Section  13(1)  the Cabinet Secretary  may in consultation  the Commission on Administrative Justice (CAJ)  make regulations  for the better carrying out  of the provisions of the Act, which  regulations  must, before publication, be approved by  Parliament.

79. In the instant case, no regulations have been promulgated  for the better  carrying out  of the provisions  of the Act.   It follows that  as stipulated    in Section  12 of the Act, the general  principles of common law  and  rules  of natural justice  are applicable in proceedings under the Act.

80. There  is no provision under  the Fair Administrative Action  that requires that leave to apply for Judicial Review  orders be sought and neither   is there a provision that the statutory bar Under  Section 9(3) of  the Law Reform Act and  Order  53  Rule  (2)  of the Civil Procedure  Rules is  inapplicable  where the application  or challenge is brought  pursuant to  the Fair Administrative Action Act.

81. It is for  that reason  that I find that an administrative   decision  or action  is equivalent  to that  other proceeding   referred  to in Section  9(3)  of the Law Reform Act  and Order  53 Rule (2) of the  Civil Procedure Rules.

82. Therefore, I find  that  failure to  bring  a challenge  against an  administrative  action  or decision, where  such action  or decision requires to be quashed  by a  Judicial Review  order of certiorari within  6  months  from  the date  of the action or decision is  fatal  to the current  proceedings  and more  specifically with regard  to prayer  No (b)  for leave to  apply for  Judicial Review   order of certiorari.

83. In addition, where the prayer  for leave   to apply for  Judicial Review  order for certiorari  is not available, thereby sustaining  the decision of 4th May 2016,  it follows that  the prayer for  leave to apply for Judicial Review  order of prohibition to prohibit  the  respondent  from  approving any  building plans  on LR 330/485  until the Urban Planning  Committee is reconstituted  does not  lie as the approval of the building  plans  was  done  on  4th May 2016.

84. Accordingly, the application herein is a  non starter, and Article   159  of the Constitution  cannot  cure  that  which is  statute  barred  as  it goes  to the jurisdiction  of the court to hear  and  determine  the  application for leave  the same   having been   filed outside  the six months  period and  hence in  contravention  of Section  9(3)  of the Law  Reform Act and Order  53 Rule   2 of the Civil Procedure  Rules.

85. The Court  of Appeal  in the  cases including Kimanzi Mboo v David Mulwa, CA  233/1996  and Wilson OsoloVs John  Ojiambo& Another[1996] e KLR  held that  the  period of six months  within which leave to  file substantive application for certiorari orders should be  made from the date of the order  or action complained  of cannot be extended.  The commencement words in the said provisions are clearly prohibitive.  It says leaveshall not be   granted,which is clear and unambiguous and clearly  declares  the intention  of the lawgiver.

86.  Accordingly, I have no hesitation in finding that  the point of law   raised by  Senior Counsel  Ahmednasir   for the interested party is valid and the same  is upheld  and  therefore the application  for leave must  fail on that  ground alone.

87. However, in the event that   I am to  be found  to have  erred in my above  finding, I would  go further  to determine  the  2nd  issue of  whether  there  was  any other  efficacious  alternative   remedy  which the  applicant  ought to have pursued.

88. According to the interested party, the applicant  had an alternative  remedy of appealing to the  Physical Planning  Liaison Committee which the  residents   of Kunde  Road  of whom  he is a  member, did  appeal  to and  which appeal  is pending and that  therefore  they must  exhaust  that  process  before coming  to the  High Court  to challenge  the decision  of  the Physical Planning  Liaison  Committee.

89. On the other hand, the applicant  avers  that this  court has jurisdiction  to hear  and  determine  the Judicial Review proceedings  because  the Physical  Planning  Liaison Committee  is not  sitting.

90. Article  47 of the Constitution as read  with  Article  165(6)  donates  to the High Court   supervisory  powers  over decisions  of the  subordinate  courts  and  inferior  tribunals  or bodies  or authorities  exercising  judicial  or quasi judicial   jurisdiction.

91. In the implementation of Article 47 of the Constitution, Parliament  recently  enacted  the Fair Administrative  Action Act No. 4  of 2015.  Sections  9(2)  (3)  and  (4)  of the said  Act provides that:

“ 9(2)  The High court  or a subordinate  court  under Subsection (1) shall  not review  an administrative  action or decision  under this Act  unless the mechanisms including  internal mechanisms  for appeal  or review and  all remedies available  under any  other written  law are  first  exhausted.

3.   The High Court  or a  subordinate  court  shall, if it  is not  satisfied  that the  remedies  referred  to in Subsection 2 have  been exhausted, direct  that the  applicant  shall  first exhaust  such remedy before  instituting  proceedings   under Subsection (1).

4.   Notwithstanding  Subsection  (3), the High  court or a  subordinate   court may, in exceptional circumstances  and  on application   by the applicant, exempt  such person  from the obligation to exhaust   any remedy  if the court  considers  such  exemption to  be in the interest of justice.”

92. The above provision is clear that an applicant for Judicial Review must first satisfy the court that they have first exhausted   the alternative remedies available under the  internal mechanisms  or under  any other  written law   before resorting  to court.  However, in exceptional circumstances, the court may exempt  the  applicant  from  resorting to  alternative   remedies.

93. In this  case, the applicant  claims in defence to the preliminary objection raised that there are exceptional circumstances  warranting  exemption  from resorting  to alternative remedies as  the Physical Planning   Liaison Committee  is not sitting.

94. The interested  party  on  the other  hand maintains that if there   were any  exceptional circumstances, an  application for  exemption would have  been  made for  the court’s  consideration.

95. In Republic  V National  Environment  Management  Authority, CA 84  of  2010 [2011] e KLR, the  Court of Appeal  stated:

“ Regarding  the availability  of an  alternative   remedy, such  as an appeal, whereas there are  occasions  when the  court will  require  exhaustion  of  other  remedies  of  procedures  such as  execution  procedures under the  Civil Procedure  Act  Cap 21, Laws of Kenya and   the Civil  Procedure Rules  made there under, the  availability  of such alternative   remedy  is not  a bar  to proceedings by  way of  Judicial Review.  They have no concern  with the merits  of  either  of the applicant’s  or respondent’s case.  This  court concerns itself  with the review  of the  decision making  process, not  whether  NEMA  had authority  to issue a  stop order  or notice, or whether  there is  an appeal mechanism.”

96. The court  in the above  case further  stated:

“……where there  was  an  alternative   remedy  and  especially  where  Parliament  had provided  a statutory  appeal  process,  it is only  in exceptional    circumstances  that an   order for  Judicial Review  would be granted, and in  determining  whether an  exception should be  made and  Judicial Review granted, it  was  necessary  for the court  to look  carefully at the suitability  of the statutory  appeal in  the context  of the particular case…..The  learned judge, in our  respectful view, considered these   strictures  and came to the conclusion that the appellant had failed to demonstrate to her what exceptional  circumstances s existed in its case  which would remove  it from the appeal  process  set out in the statute  with respect, we agree with the judge.”

97. The above decision was  made prior to  the enactment  of the Fair  Administrative  Action Act  No. 4 of  2015.  Nonetheless, the  Court of Appeal  recognized  that  except in  exceptional  circumstances, where  there is an  alternative  remedy  and especially  where the  Parliament   has provided  a statutory  appeal  procedure, the court  should  not  allow the  Judicial Review   process to be invoked.

98. Emukule  J ( as he then  was ) in Rental Healthcare [EPZ] Ltd  &Another  V Ministry of Health & 5 Others [2015]e KLR  citing with approval Damian Belfonte V The Attorney General  of  Trinidad  & Tobago  CA 84/2004  persuasively stated:

“  where  there is a parallel  remedy, constitutional  relief  should  not be made unless  the circumstances of which the  complainant   is made  include  some feature which   made is  appropriate  to take that  course.  As  a general  rule, there  must  be some  feature, which,  at least, arguably  indicates  that the  means  of least   redress   otherwise  available would  not be adequate.  To seek constitutional relief in the absence  of such feature  would be   misuse, an  abuse  of the court  process.”

99. The same   judge (Emukule J)  in Republic  vs Principal  Magistrate  Lamu Magistrate’s Court &Another exparte Kenya Forest  Service( supra) citing with approval  the Court of Appeal  decision in Eliud Wafula Mailo V Minister  of Agriculture  &3  Others  [2016] e KLR was  clear, as  extracted  from  the Halsbury’s Laws  of England, VOL 10,  Paragraph  319:

“The  subject’s rights to  access  the  courts  may be  taken away or restricted  by statute……”…….. “where a  tribunal with  exclusive  has been specified  by a  specific  statute  to deal  with claims  arising   under a statute, the  county court’s  jurisdiction  to  deal with these  claims  is ousted,  for  where  an Act creates an obligation to, and enforces  the  performance  of it, it cannot  be  enforced  in any  other manner.”

100. In this regard, the Physical Planning ( Appeals  to the Physical  Planning  Liaison Committee) Regulations, 1998 provides for  the procedure  of challenging decisions   made under the Act.   Rule 3   therefore stipulates:

“ 3. All appeals   shall be  made on  forms  PPA 8 and  PPA 9  set out  in the schedule  respectively and issued by  the relevant  Liaison  Committee  or Local Authority, and shall include  such  particulars  as may be required  by the directors  printed  on the forms.”

101. The applicant’s  annexture at   page  5  of this bundle  is  a Form PPA8 being an appeal  against Development Planning  decision, addressed  to the secretary, the Nairobi Physical  Planning  Liaison Committee setting out the general and specific   grounds  to the objection to the  change of user   and  the proposed  development  to LR  330/485.

102. The appeal  at paragraph  4 challenges  not only the  approval of the structural  building  plans  dated  4th May  2016 but the  change  of user  from single  dwelling  unit  to  multi  residential  dwelling  units ( Town Houses) dated  18th August  2015.  The appeal is dated 1st August  2016  and is filed   by  the Kunde  Road Residents  Welfare  Association.  The applicant herein  is  a member of the said appellant Kunde  Road Residents  Welfare  Association.

103. The Physical Planning Liaison Committee is established   under Section 7 of the Physical Planning Act, and the Committee’s functions include:

“To hear appeals lodged by persons aggrieved  by decisions  made by the  director or local authorities  under  the Act.”

104. In Mutanga Tea & Coffee Company Ltd  V Shikara  Ltd &another [2015] e KLR  the Court of Appeal  at Mombasa  ( Makhandia, Ouko and  M’inoti JJA) determined  the central  issue of  whether  a party aggrieved  by the decision  of the Director  of Physical Planning  under the Physical Planning  Act,  Cap 286 Laws of Kenya and  NEMA  under  EMCA  Cap  387  may invoke the original jurisdiction  of the High Court   instead  of the  dispute  resolution mechanisms  prescribed  by the two Acts.

105. The court, relying  on several  decisions including  Speaker of  The National  Assembly  V Karume[2008] 1 KLR  425where it  was   stated:

“…….where there is a clear  procedure  for the redress  of any particular  grievances  prescribed  by the Constitution  or the Act  of Parliament, that  procedure  should be followed….;held as follows……

“…….this court   has in the past emphasized  the need for  aggrieved  parties to strictly  follow any  procedures  that are   specifically prescribed  for resolution of particular  disputes (Speaker  of the National Assembly V Karume (supra) was  a 5(2)  (b) applicant  for stay of  execution of an order of  the High Court  issued in Judicial Review proceedings  rather than in a  petition as  required  by the Constitution.” In granting  the order, the court  made  the often quoted statement :  “ where  there is a clear   procedure  for the redress  of any  particular  grievances  prescribed  by the Constitution  or an Act of Parliament, that  procedure  should  be  strictly  followed. (See also Kones v Republic & Another  exparte Kimani Wanyoike& 4  Others[2008] e KLR  (ER) 296. It is  readily  apparent  that  in the above cited cases   the court   was  speaking  on issues of the  correct procedure  rather than of the correct  forum for resolution of a dispute. However, we entertain  no doubt  in our minds  that the reasoning of the court  must  apply with  equal force  to require an  aggrieved party, where a specific  dispute  resolution  mechanism is prescribed  by the  Constitution or a statute, to resold to that mechanism first before  purporting  to invoke the inherent jurisdiction of the High Court.

The basis  for that  view  is first, that  Article  159 (2) (e)  of the Constitution  has expressly recognized  alternative  forms of alternatives forms of dispute resolution, including  reconciliation, mediation, arbitration and  traditional  dispute  resolution mechanisms.  The use of the word  “including” leaves  no doubt  that Article  159(2)(c) is not  a closed  catalogue.  To the  extent  that the Constitution  requires  these forms  of dispute  resolution  mechanisms  to be  promoted, usurpation  of their jurisdiction  by the High Court  would not  be promoting,  but rather, undermining  a clear constitutional  objective. A holistic and  purposive reaching of  the Constitution  would therefore  entail construing  the unlimited  original jurisdiction  conferred  on  the High Court  by Article  165(3) (a)  of the  Constitution  in a way that will accommodate  the alternative  dispute resolution  mechanisms. Secondly, such alternative dispute  resolution mechanisms normally  have an  advantage  of  ensuring  that the issues  in dispute  are heard   and  determined  by experts in the area; and that the  dispute  is  resolved   much more  expeditiously and  in a more  cost  effective  manner…..

…..We are therefore  satisfied that the learned  judge  did not  err by striking out  the  appellant’s  suit and  application  which sought to  invoke  the  original jurisdiction  of the High Court in circumstances whereas the relevant  statutes  prescribed  alternative  dispute  resolution  mechanisms  and afforded the appellant  the  right  to access  the High Court  by way of  an appeal, which mechanisms  he had  refused  to invoke.  To hold  otherwise  would, in the circumstances  of this  appeal, be to defeat the constitutional objective behind Article  159(2) ( c) and the  very  raison d’etre of the mechanisms  provided  under the two Acts……”

106. The Court of Appeal  quite recently  in Samson Vuko V Nelson Kilimo & 2 Others  (2016] e KLR  citing  with approval its previous  decisions  including Speaker of the National Assembly V Karume (supra) maintained that:

“where  there is a  clear procedure  (forum  for the redress  of any particular  grievances  prescribed by the Constitution or the Act of Parliament, that procedure  or forum  must be   followed.”

107. The court in Mutanga  Tea & coffee  Company (supra)  case  was  clear that:

“ The Physical Planning Act  was enacted  to provide for  among other things, the preparation and implementation of development plans. As noted by the High Court, the Act has a fairly  elaborate  dispute resolution  mechanism that affords affected  parties, be  they  developers, adjacent   property owners, or   any other   affected  person, an opportunity  to be heard  in the first instance followed  by  a two tier  appeal  process, before a final appeal to the High Court.

Under Section  29 of the Act , local authorities  are empowered  to, among  other things, prohibit  or control the use and  development   of land and buildings  in the interest of  proper   and  orderly development; to control  or prohibit  subdivision of land; to approve all  development applications; and  to grant development   permissions.

Under Section  30, no person may carry out development  within the area  of the local authority  with a development  permission  by the local authority  and it  is a  criminal offence  to undertake such development without permission.

Any person  aggrieved  by a decision of a   local authority   to grant  or deny  an application  for change of user of development  may appeal to the relevant Physical Planning Liaison Committee  established  under Section  8 of the Physical Planning Act. A decision  of a Physical Planning  Liaison Committee is  appealable  to the National Physical Planning  Liaison committee,  a body  made up of 19 members  drawn from a cross section of sectors, professionals, and interest  groups. Its mandates  includes  hearing   and  determination  of appeals from a person or  local authority aggrieved  by a decision  of any  of the lower  level  liaison committees. The Committee has power to reverse, confirm or vary the decision  appealed  against.

Under Section 15(4)  of the Act, any  person aggrieved  by a decision of the National Physical Planning  Liaison committee has a further  right to appeal  to the High Court.

We have  carefully  considered the provisions of the Physical Planning  Act and  we  do not  see the basis of the argument  that it contemplates  the possibilities  of some aggrieved    parties   side stepping  the provided elaborate dispute resolution  procedures   and  taking   their grievances  directly to the High Court.

Throughout the Physical Planning  Act refers to “ any person aggrieved by  a decision.” That aggrieved person, in our view includes  the owner of an adjacent  property  like the present appellant.  In our reading  of Section  41(3)  of the Physical Planning  Act against the  other provisions of the Act, a person who is supposed  to be served  with a copy of the application for change  of user  or for development, and  is not so  served  is an aggrieved  party within the  meaning  of the Act  and is entitled to  resort  to the dispute  resolution  mechanism provided under the Act to agitate  his  grievances .  He is  not entitled to  ignore the provisions of the Act  and  invoke the  original jurisdiction  of the High Court.

The EMCA takes a similar  approach  on matters  of the Environment.  Section 58 as read  with the Second  Schedule  overrides  all provisions of other laws  including  the Physical Planning  Act and  requires  any person undertaking, among  others, a project involving  an activity out of  character with its  surrounding, or a structure  of a scale  not in keeping with the surroundings  or entailing  major  changes  in land use to first  undertake  an environment impact  assessment.

Under  the Environment  Impact Assessment  and  Audit  Regulations, 2003, in undertaking  an  environment  impact   assessment, all persons  likely  to be  affected by the project  must be  consulted.  In Section  31 the Act  established  the  Public  Complaints Committee whose functions, among other things, is to  investigate  any allegations  or complaints  against any person relating  to the conditions  of environment.

Like under the Physical Planning Act, any person aggrieved  by a decision of the Director General, of NEMA  or of  any of its  Committees  has a right to appeal  to the National  Environment   Tribunal  under Section  129 (2) of EMCA, which  may confirm, set aside, or vary the impugned  decision  and make such  order as  it  may deem fit.  A decision of the Tribunal is, under Section  130 appealable  to the High court.

The real question then becomes  whether  an aggrieved  party can  ignore these elaborate  provisions  in both  the Physical Planning Act  and the EMCA  and resort  to the High Court, not in an appeal, as provided  , but in  the first instance.”

108. The Court of Appeal in the same decision above also cited with approval the High Court decision in Rich Productions Ltd VsKenya Pipeline Company &Another Petition No. 173 of 2014 where the court explained why it must be slow to undermine prescribed alternative dispute resolution mechanisms thus:

“The reason why the Constitution and law establish different institutions and mechanisms for dispute resolution in different sectors is to ensure that such disputes as may arise are resolved by those with technical competence and the jurisdiction to deal with them.  While the court retains the inherent and wide jurisdiction under Article 165 of the Constitution to supervise bodies such as the 2nd respondent, such suspension is limited in various respects, which I need not, go into here.

Suffice to say that it (the court) cannot exercise such jurisdiction in circumstances where parties before court seek to avoid mechanisms and process provided by law, and convert the issues in dispute into constitutional issues when it is not.”

109. On the same reasoning above, the Court of Appeal in Republic Vs National Environmental Management Authority, CA 84/2010 upheld a decision of the High Court, which declined to entertain a judicial review application by a party who had a remedy, which he had not utilized, under the National Environmental Tribunal.  The Court of Appeal reiterated that where Parliament has provided an alternative remedy in the form of a statutory appeal procedure; it is only in exceptional circumstances that an order of judicial Review will be granted.

110. Similarly in Vania Investments Pool Ltd Vs Capital Markets Authority & 8 Others, CA No. 92 of 2014 the Court of Appeal also upheld a decision of the High Court in which the court declined to entertain a Judicial Review application by an applicant who had failed to first refer its dispute to the Capital Markets Appeals Tribunal established under the Capital Markets Act.

111. From the above elaborate and authoritative decisions of the Court of Appeal and as I have no sound ground upon which to depart from or to distinguish them from the instant case and on its facts, I am satisfied that this court cannot invoke its inherent jurisdiction to hear and determine this matter where there a is an alternative resolution mechanism provided by law.

112. I am also satisfied that failure to follow the prescribed mechanism is not a mere technicality curable under Article 159(2)(d) of the Constitution, as it is the same Constitution under Article 159(2) (c) that expressly provide for principles under which the dispute resolution mechanisms provided (for by the Physical Planning Act) are  underpinned hence, lack of compliance thereof is not  a mere procedural technicality.

113. In the instant case, it is clear from Sections 9 (2) (3) and (4)of the Fair Administrative Action Act which implements Article 47 of the Constitution, that the court is expressly barred from entertaining Judicial Review proceedings in a matter where there are internal mechanisms for appeal or review, and allremedies available under any other written law are first exhausted.

114. The Act, nonetheless, under Subsection (4) of section 9 gives to the court discretion, in exceptional circumstances, on application, to exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.

115. The applicant acknowledges that there is an internal appeal mechanism which he and others invoked and which appeal is pending before the Physical Planning Liaison Committee of the respondent.  He however claims that the Liaison Committee is not sitting.

116. There is no deposition as to who informed him that the Liaison Committee is not sitting and even if that were to be the case, nothing prevented the applicant from seeking for Judicial Review orders of Mandamus to compel the respondent to constitute such relevant Liaison Committee within a specified period for purposes of expeditions disposal of the appeal which was filed on 3/8/2016.

117. In addition, if the applicant believes that there are exceptional circumstances that warrant consideration of the judicial review proceedings, the provision of Section 9 (4) of the Fair Administrative Action are clear that an applicant must apply to seek exemption from the obligation to exhaust any alternative remedy and the court would then consider such application on its merits on whether the applicant deserves such exemption.

118. In this case, there is no such application seeking for exemption hence the court cannot on its own motion seek to consider that which is not before it and especially where the statute clearly stipulates that there must be such application, setting out those exceptional circumstances, for consideration.

119. This court had occasion to determine the issue of exhaustion of alternative remedies in Judicial Review 581 of 2016 on 9/12/2016 in Republic Vs Patrick Njoroge Kimani& Others ex parte Kangemi Matatu Owners Saccowhere the respondent raised a preliminary objection as to the jurisdiction of the court to hear and determine judicial review proceedings between members of a Co-operative Society contrary to the provisions of Section 76 and 67(3) of Cap 490 Laws of Kenya, the Co-operative Societies Act and Cap 490B Laws of Kenya, the Sacco Societies Act and I held thus:

“With those clear provisions of Sections 76 and 67(3) of Cap490 and 490B of the Co-operative Societies Act and Sacco Societies Act respectively that disputes between the exparte applicants herein and the interested party should be resolved by the co-operatives Tribunal established under Section 77 of Cap490 Laws of Kenya, I have no doubt in my mind that the dispute squarely falls in and can be officiously by resolved through those established mechanisms under the statute and moreso, when the Fair Administrative Action Act No. 4 of 2015 which was expressly invoked by the ex parte applicants and which implements Article 47 of the Constitution thereby crystallizing the right to fair administrative action provides for exhaustion of alternative remedies before approaching this court.”

120. I am further fortified by the decision of Court of Appeal in Narok County Council Vs. Trans Mara County Council & Another CA 25 of 2000 where the Court of Appeal stated:-

“Although Section 60 of the Constitution gives the High Court unlimited jurisdiction, it cannot be understood to mean that it can be used to clothe the High Court with jurisdiction to deal with maters which a statute has directed should be done by a minister as part of  his statutory duty; it is otherwise where the statute is silent on what is to e done in the event of a disagreement…where a statute provides that in case of a dispute the minister is to give direction, the jurisdiction of the court can be invoked only if the Minister refuses to give a direction or in purporting to do so, arrives at a decision which is grossly unfair or perverse.    In the latter, his decision can be challenged by an application to the High Court for a writ of certiorari because under the relevant section of the decision is to be made on a fair basis.  But if the Minister simply refuses to discharge his statutory duty; his refusal can also be challenged in the High Court by way of Mandamus to compel the Minister to perform his statutory but not by way of a suit…if the court acts without jurisdiction, the proceedings are a nullity…the extent of the jurisdiction of the High Court may not only, be that which is conferred or limited by the constitution but also, that which the constitution or any other law, may by express provisions or by necessary implication, so confer or limit.

The jurisdiction of the High Court can be ousted by an Act of Parliament and in such cases all that the High Court can do is to enforce by judicial review proceedings, the implementation of the provisions of the Act; certainly, not to usurp the powers of the Minister.. Even though resort to the judicial  review process, may in appropriate cases not be a bar to other proceedings such as a plaint, this may  not apply in peculiar circumstances such as this one, so as to entitle the judge to do not only what he was not requested to so, but also, to do what he had no jurisdiction to embark upon.  Where the law provides for procedure to be followed, the parties are bound to follow the procedure provided by the law before the parties can resort to a court of law as the court would have no jurisdiction to entertain the dispute.”

121. The above decision applies in both issue 1 and 2 herein in that albeit the applicant contends that the Law Reform Act cannot oust the jurisdiction of the court, it is clear that a statute can oust jurisdiction of the High Court, just as the Constitution does, under Article 165 (5) (b) of the Constitution.  Further, Section 9 of the Fair Administrative Action ousts the jurisdiction of the High Court where there are in place officious alternative remedies and it is upon the applicant, on application, to satisfy the court that he deserves exemption from exhausting pursuing that other remedy through an alternative forum.

122. In this case, the fact that the applicant already approached the alternative forum by way of an appeal is a clear indication that he acknowledges the significance of exhaustion of alternative remedies and therefore he cannot be seen or heard to say that that alternative forum is not officious.

123. As already stated, if the Physical planning Liaison Committee does not perform its statutory duty of hearing the appeal as filed, the applicant would be entitled to seek for exemption or for judicial review of Mandamus to compel the respondent to perform a statutory duty, which the applicant has not attempted to do.

124. In the earlier case of Damina Belfonte Vs The Attorney General of Trinidad & Tobago CA 2004 it was held that:

…where there is a parallel remedy, constitutional relief should not be sought unless the circumstances of which the complaint is made include some feature which makes it appropriate to take that cause.  As a general rule there must be some feature, which at least arguably indicates that the means of least redress otherwise available would not be adequate.  To seek constitutional relief in the absence of such feature would be a misuse, an abuse of the court’s process.”

125. And in international Centre for Policy and Conflict & 5 Others V the AG & 4 Others  (293) eKLR cited in Diana Kethi Kilonzo & Another Vs IEBC& 10 Others [2013] eKLR it was stated;-

“An important relief of the concept of the rule of law is that this court before exercising its jurisdiction under Article 165 of the Constitution in general must exercise restraint. It must first give an opportunity to the relevant constitutional bodies or state organs to deal with the dispute under the relevant provision of the parte statute.  If the court were to act in haste it would be presuming bad faith or inability by that body to act.  For instance, in the case of IEBC, the court would end up usurping IEBC’s powers.  This would be contrary to the institutional independence of IEBC granted by Article 249 of the Constitution.”  Where there exists adequate mechanism to deal with a specific issue or dispute by other designated constitutional organs, the jurisdiction of the court should not be invoked until such mechanisms have been exhausted.”[emphasis Added]

126. Hon Justice Makhandia (as he then was) in Peter Ochara Anam & Others Vs. Constituencies Development Fund (CDF) Board and Others.  Kisii HC Petition No. 3 of 2010 [2011]eKLR put it in the following words:-

“The provision is couched in mandatory terms and leaves no exceptions and or provisos coming to court by way of a constitutional petition is not expected either as much as the constitution is superior law to the statute aforesaid.  In view of  this provision and there being no allegations or evidence that the petitioners exhausted  those remedies, in bringing this petition, the petitioners have deliberately avoided the procedure and remedy provided for under the Act.  They have not preferred any explanation as to why they did not refer any of the complaints they have raised to the 1st respondent as required by law.  It has been stated constantly that where there exists sufficient and Legal Avenue, a party ought not to trivialize the jurisdiction of the court pursuant to the constitution.  Indeed, such a party ought to seek redress under the relevant statutory provisions; otherwise such available statutory provisions would be rendered otiose…”

127. The many decisions that I have cited speak one language; that resort to court is the last resort as was stated by Olao J in Alice Mweru Ngai Vs. KPLC Ltd [2015] eKLR that:

“.....Government to herald specific grievances, the courts must respect and uphold the law.  In view of the clear legal provisions cited above and which stipulate the forum that ought to deal with a dispute of this nature and which forum the plaintiff has not approached as a first point of call, it would be an unwarranted intrusion into the jurisdiction of another organ if this court were to purport to handle this dispute.  It is in the interest of the proper orderly and efficient administration of justice that proper procedures provided for in the hierarchy of dispute resolution be followed and that the organs mandated to arbitrate over such disputes be respected and allowed to perform their statutory responsibilities.  That is why those procedures were formulated and such organs established.  It is clear from the above that the preliminary objection on the “where the law has granted jurisdiction to other organs, this court’s lack jurisdiction to hear this dispute is well taken.”

128. In the end, I find, without hesitation that there was an efficacious alternative remedy and forum which the applicant ought to have pursued to its logical conclusion without which this court’s jurisdiction is effectively ousted by Section 9 (2) of the Fair Administrative Action Act No. 4 of 2015 and therefore I direct that the applicant shall first exhaust such remedy by way of an appeal to the PPLC and through to the National Physical Planning Liaison Committee  before attempting to institute proceedings in the High Court by way of an appeal or by way of judicial review, if allowed by law, upon complying with the provisions of Section (4) of the Fair Administrative  Action Act.

129. On the 3rd issue of whether the applicant has established a prima facie arguable case for consideration at a substantive motion stage to warrant grant of leave sought to apply for judicial review orders of Certiorari and Prohibition.; Order 53 Rule 1(1) of the Civil Procedure Rules is clear that no application for an order of Mandamus, Prohibition or Certiorari shall be made unless leave therefore has been granted in accordance with this rule.

130. It therefore follows that before any application for judicial review orders of Certiorari and Prohibition is made, leave must be obtained otherwise such an application shall be rendered incompetent.

131. The purpose for leave prior to institution of judicial review proceedings was aptly captured in the case of Republic Vs County Council of Kwale & Another Exparte Kondo & 57 Others Mombasa HC Misc. App No. 2284 of 1996 that:-

“The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless and secondly to ensure that the applicant is only allowed to proceed to substantive hearing if the court is satisfied that there is a case fit for further consideration.

The requirement that leave must be obtained before making an application for judicial review is designed to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints or administrative error, and to remove the uncertainly in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceeding for judicial review of it were actually pending even though misconceived.

Leave may only be granted therefore id on the material available, the court is of the view, without going into the matter in depth, that there is an arguable case for granting the relief claimed by the applicant the test being whether there is a case fit for further investigations at a full interpartes hearing of the substantive application for judicial review.  It is the exercise of the court’s discretions, but as always, it has to be exercised judicially.”

132. The court of Appeal in Mirugi Kariuki Vs Attorney General CA 70/1991 [1990-1994] EA 156; [1992] KLRand stated:-

“The law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is exercised is justiciable, that is to say if it is a matter on which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power…the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.  It is not the absoluteness of the discretion nor the authority of exercising it that matter but in its exercise, some of the person’s legal rights or interests have been affected.  This makes the exercise of such discretion justiciable and therefore subject to judicial review.  In the instant appeal it is of no consequence that the Attorney General has absolute discretion under Section 11(1) of the Act in its interest the appellant’s legal rights or interests were affected.  The applicant’s complaint in the High Court was that this was so and for that reason he sought leave of the court to have it investigated.  It is wrong in law for the court to attempt an assessment of the sufficiency of the applicant’s interests without regard to the matter of his complainant.  If he fails to show, when he applies for leave, a prima facie case, on reasonable grounds, for behaving that these has been a failure of public duty, the court would be in error if it granted leave.  The counsels represented by the need for the applicant  to show, when he seeks leave to apply, that he has a case, is an essential protection against abuse if the legal process.  It enables the court to prevent abuse by busy bodies, cranks and other mischief-makes….  In this appeal, the issue is whether the appellant in his application for leave too apply for orders of Certiorari and Mandamus demonstrated to the High Court a Prima facie case for the grant of those orders, clearly once breach of the rules if natural justice was alleged, the exercise of discretion by the Attorney General under Section 11(1) of the Act was brought into question.  Without a rebuttal to the allegations, the appellant certainly disclosed a prima facie case.  For that, he should have been granted leave to apply for the orders sought.”

133. In the instant case, I have already found that the prayer for Certiorari would out rightly not be available to the applicant since the application for leave was made outside the 6 months statutory period limited by Section 9 (3) of the Law Reform Act Cap 26 Laws of Kenya. And that where certiorari is not available, it means that the decision regarding approval of development plans is not quashed hence prohibition would not be an efficacious remedy.

134. Besides the above position which I reiterate, i have found that that there is an established elaborate procedure for challenging decisions of the respondent and as there was no application under Section 9(4) of the Fair Administrative Action Act for exemption, this court’s jurisdiction to proceed and hear and determine judicial review proceedings on this subject is ousted.

135. In addition, and most importantly, is that from annexture at page 11 of the applicant’s bundle, is a memo dated 12/10/2016  issued before these proceedings were instituted by the Acting County Secretary to CECM Lands and Urban Planning.  The subject is “CEC RESOLUTION on Kunde Road Residents Welfare Association.” It reads:-

“Reference is made to the CEC Resolution of its meeting held on Wednesday 12/10/2016 and other various deliberations concerning the above subject as listed below:-

1. During the CEC meeting held on Thursday 27/8/2015 under Min 180/CEC/AUGUST/2015 (extract of minutes attached) it was resolved that the request for the Kunde Road status quo to remain, be approved and the County Attorney to do a letter for the CS’s signature acknowledging receipt and responding to the petition by communicating the County’s decision on the same.

Kindly let this office have the implementation status of this resolution which ratified  and approved….

i. Change of user and

ii. Building plans and the Development applications.

2.  You are hereby requested to write to the developer informing him of:

i.  The stop order for construction of residential town houses on LR 330/485 along Kunde Road, Thompson Estate Nairobi City County NEMA (Copy of stop order attached dated 9/8/16 which reached the county before the communication of the court ruling by Pyramid Builder Limited dated 22/9/2016.

i. The CEC meeting =s resolutions of Thursday 27/8/2015 and Wednesday 12/10/2016 respectively.

3.  The Urban Planning Technical Committee to be reinstituted with immediate effect since the information there is stipulates that both the Architect and the Contractor both sit in this committee which s clear beyond any reasonable doubt that they have vested interests in the deliberations of this committee.

Kindly expedite with what needs to go to the developer and to this office.

Signed

Dr. Robert Ayisi, MBS

Acting County Secretary.

cc.     H.E. The Governor

H.E. The Deputy Governor

Economic Planning, Finance and

Strategy Advisor”

136. The letter attached minutes of Thursday 27/8/2015 held at 7. 00 hrs which are also referred to in the above reproduced memo, and which meeting was chaired by H.E. the Governor Dr Evans Kidero.

137. Minute No. 180/CEC/August 2015 is Petition of the Kunde Road Resident Welfare Association and proceeds to be minuted as follows:

“The committee was informed that a petition had been received from Kunde Road Resident Welfare Association requesting of the Kunde Road Status Residents Welfare Association requesting for the Kunde Road status quo to remain.

The Committee considered the matter and it was recommended that the request by the said Welfare Association be approved. It was also recommended that the current status of Tende Drive and Mzima Springs to remain.

The County Attorney was requested to do a letter for the County Secretary’s Signature, responding to the Kunde Road Residents Welfare Association and communicate County decision on the petition.

Resolution:

i. That the request for the Kunde Road status quo to remain be approved. Tende Drive and Mzima Springs Road status also to remain.

ii. Do a letter for County Secretary’s signature acknowledging request and responding to the person and communicate county decision on the same.

Confirmed as true record of proceedings.

Secretary - signed

Date: 13/10/2016”

138. From the above memo of 13/10/2016 and minutes and resolution of 27/8/2015 presided over by the Governor Nairobi City County Dr. Evans Kidero and attended by 9 CECM’s and other 10 top officials  of the County including County Attorney, I have no difficulty in finding that the County Government of Nairobi did on 27/8/2015 stay the implementation of the earlier approvals for development on the subject land and the resolution that was passed was communicated to the County CECM Lands and Urban Planning on 13/10/2016 for implementation, together with the NEMA Tribunal stop order dated 9/8/2016 found at page 25 of the applicant’s bundle.

139. Bearing in mind the fact that the stop resolution was signed on 13/10/2016 after the impugned decision of approval was made on 4/5/2016, and that the stop order from NEMA Tribunal came on 9/8/2016, in my humble view, there would be no administrative action made by the respondent with regard to LR 330/485 capable of implementation by the respondents and for which the respondent would be prohibited from enforcing, as at the time this chamber summons was filed on 13th December, 2016.

140. Accordingly, this court would be engaging in a wild goose chase if it granted leave even assuming that the challenge vide Certiorari  was validly made within 6 months from 4/5/2016, as there  would be nothing  to be quashed.

141. In other words, I am not persuaded that the applicant has established that he has a prima facie arguable case to warrant judicial review orders.

142. There are also serious conflicting facts on record which can only be resolved by way of an appeal process and not by judicial review remedy.  Such facts include the interpretation of item No. 3 on the memo of 13/10/2016 as to whether or not the Architect and contractor who were members of the Urban Planning Technical Committee actually sat in the approval committee subject of these proceedings, since no minutes of that approval committee were annexed to the replying affidavit.

143. Another conflict and or contradiction which can only be resolved by way of evidence is whether the decision of 4/5/2016 was suspended by the memo of 13/10/2016 referred to above communicating the decision (resolution) of the respondent reached on 27/8/2015.

1144. Further, as the ruling of 15/12/2016 in NET/186/2016 by the NEMA Tribunal dismissed the applicants Association’s appeal challenging the issuance to the interested party herein an EIA licence No. NEMA/EIA/PSL/3468 authorizing the construction of the six town houses on LR 330/485 along Kunde Road, it would serve no useful purpose for this court to grant leave and stay, when there is no evidence that that NEMA  Tribunal decision is under challenge before any other authority or court.

145. Parties counsels also argued broadly on the issue of these proceedings being res judicata Petition 316/2016.

146. However, I am unable to determine that issue conclusively as there are many conflicting issues involved.  Furthermore, in the Petition 316 of 2016 the two rulings by Hon Justice Mureithi concerned the EIA licence and not the approval for Development plans by the respondent which latter are the subject of these proceedings.

147. In the end, I find that the applicant has not demonstrated to this court that he deserves the orders sought for leave to apply for judicial review orders of Certiorari and Prohibition. I also find that the prayer for stay is not merited.  The two substantive prayers in the chamber summons dated 13/12/2016 are hereby dismissed.  Each party shall bear their own costs of the Chamber Summons.

Dated, signed and delivered in open court at Nairobi this 31st day of January, 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Ochieng Oduol for the exparte applicant

Mr Cohen h/b for Senior Counsel Ahmednasir for the Interested Party

N/A for the Respondent