Republic v Kenya Urban Road Authority, China Roads and Bridge Corporation & Kenya Power & Lighting Company Limited [2016] KEHC 3530 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW MISC. CIVIL APPLICATION NO.  121    OF 2016

IN THE MATER OF: ORDER 53 RULE 3 OF THE CIVIL PROCEDURES RULES;

AND

IN THE MATTER OF: AN APPLICATION BY ATLAS COPCO EASTERN AFRICA LIMITED   FOR JUDICIAL REVIEW PROCEEDINGS FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS

AND

IN THE MATTER OF: CONSTITUTION OF KENYA 2010 AND THE KENYA ROADS ACT 2007;

IN THE MATTER OF : AN APPLICATION  BY ATLAS  COPCO EASTERN AFRICA  LIMITED  FOR JUDICIAL  REVIEW  PROCEEDINGS FOR ORDERS  OF CERTIORARI  TO QUASH THE DECISION  DATED 15TH SEPTEMBER  2015  BY KENYA URBAN ROADS AUTHORITY REFUSING  GRANT  OF AUTHORITY TO ATLAS COPCO EASTERN AFRICA TO  CONSTRUCT  A STANDARD  EXIT  TO LINK ITS PREMISES  TO THE SERVICE ROAD FOR ACCESS TO AIRPORT  NORTH ROAD;

IN THE MATTER  OF : AN  APPLICATION  BY ATLAS  COPCO EASTERN AFRICA LIMITED  FOR JUDICIAL  REVIEW  TO APPLY  FOR ORDERS  OF MANDAMUS  TO COMPEL  KENYA URBAN ROADS  AUTHORITY(KURA) TO GRANT  THE APPLICANT AUTHORITY TO CONSTRUCT  A STANDARD  EXIT  TO THE SERVICE  ROAD TO LINK TO AIRPORT  NORTH ROAD FOR  ACCESS SAFETY  AND REMOVE  TEMPORARY  RAMP PLACED  AT THE EXIT;

IN THE MATTER  OF: AN APPLICATION BY ATLAS  COPCO EASTERN  AFRICA  LIMITED  FOR JUDICIAL  REVIEW  TO APPLY FOR ORDERS  OF PROHIBITION  AGAINST  KENYA  URBAN ROADS  AUTHORITY (KURA) FROM  ERECTING  RAMPS  ON ITS  EXIT  GATE.

BETWEEN

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

-VERSUS-

KENYA URBAN ROAD AUTHORITY……...………….…........1ST RESPONDENT

CHINA ROADS AND BRIDGE CORPORATION..……...........2ND RESPONDENT

KENYA POWER & LIGHTING COMPANY LIMITED….......INTERESTED PARTY

RULING

1. This ruling determines the 1st Respondent’s preliminary objection dated 12th April 2016 and filed in court on 17th May 2016.  It challenges   the Exparte  applicant’s  substantive  motion   filed with  the leave   of court given  on 17th March  2016, seeking for Judicial  Review Order of  certiorari, Mandamus and prohibition.

2. The preliminary objection was urged   by Mr Munene counsel for the respondents.  According  to Mr Munene, the Exparte  applicant’s  application filed in court on5th April  2016, was outside   the  6 months  statutory   period  stipulated by Order 53 Rule  2 of the Civil Procedure Rules and Section 9(3)  of the Law  Reform Act. In his view, the letter  seeking to  be quashed  as a decision of the  administrative/statutory body is  annexture  JM 11 dated  15th September, 2015  and  yet the  applicants  came to court  on 5th April  2016  close to 7 months  after the impugned  decision  therefore  the application is  statute  barred and  hence, leave ought not  to have been granted  in the first instance.  He relied  on the  case of APCO V Special District  Commissioners Kisumu [1997] e KLR  (not supplied to court) where the Court of Appeal held that  leave shall not be granted  unless it is made  within 6 months and that  the court  also stated that the prohibition under Section 9(3)  of the Law Reform Act is mandatory. Further reliance was placed on Kimanzi vs David Mulwa Muthusi [1997] e KLR (not supplied)where the same position as in the APCO case   was advanced by the court.  Mr Munene therefore prayed for the Preliminary Objection to be upheld and the entire suit be dismissed.

3. In opposing the Preliminary Objection, Mr Njagi counsel for the exparte applicant submitted that the Preliminary Objection does not lie in the circumstances of this suit.  First, that the objection as raised touching on Order 53 of the Civil Procedure Rules is too general and therefore hopelessly defective as it cites  the wrong provisions of the law.  Secondly, Section 9(3) of the Law Reform Act is not   mentioned in the preliminary Objection filed hence, the oral citation was an ambush.

4. Nonetheless, Mr Njagi  submitted that  assuming that the Preliminary Objection   was predicated  on Order 53 Rule  2 of the Civil Procedure Rules  which talks   of time  for filing of  the application  for  leave, then the decision that is  sought  to be  quashed  is at page  67  JM II of the  exparte applicant’s bundle(application) and  that it is dated 15th September  2015.  In Mr Njagi’s view, the application for leave   was made on 15th March 2016 which is one day less than six months hence the application was made within the statutory period.

5. Further, it was submitted that it is not clear when that letter or decision    which is not a formal order under Order 53 Rule (2) of the Civil Procedure Rules was communicated to the exparte applicants.  In addition, Mr Njagi  argued that besides  the  Judicial Review  Orders  of Certiorari, the applicant  also seeks  for  Judicial Review  Orders  of mandamus and  prohibition hence  the preliminary objection  as raised  cannot fully determine the suit  herein.

6. Mr Njagi  further submitted  that  the  Judicial Review  orders sought  are challenging  jurisdiction of the  administrative  body to pronounce itself  on whether  the land in issue  was acquired  illegally hence, time cannot  begin to  run where  issues of  jurisdiction  are raised.  He urged the court not to strike out  pleadings  as the power  to strike  out pleadings  is a draconian  one which  should  be exercised cautiously  since it  drives a party from  the process  of justice. Counsel urged the court not to uphold the preliminary objection since the suit   was not frivolous.  He relied on the cases filed on record.

7. In his brief rejoinder, Mr Munene submitted that he inadvertently omitted to cite Order 53 Rule (2) of the Civil Procedure Rules.

8. I have carefully considered the preliminary objection dated 12th April 2016   as argued in court.  I have also considered the opposition by the Exparte applicant, and the decisions   relied on by both parties advocates.

9. In deciding   whether  to uphold the preliminary objection, the court   is guided by the land  mark case of Mukisa  Biscuits  Manufacturing  Ltd  Vs  West End  Distributors  Ltd [1969] EA  696  where the court held that a  preliminary objection  consists of  a point  of law which has been  pleaded, or  which arises  by clear implication   out of the  pleadings, and  which, if  argued as a  preliminary objection  may dispose  of the entire  suit. The court  further held  that a  preliminary objection would normally  be argued on the assumption that all facts   pleaded by the other  side  are correct  and cannot be  raised if  any facts  have to be  ascertained  or if  what is  sought  is judicial  discretion.

10. In the instant case, the preliminary objection is on limitation of the period within which the application for leave to apply for Judicial Review Orders of certiorari ought to have been brought. Order 53 Rule 2 of the Civil Procedure Rules provides that:

“ Leave  shall not be  granted to apply  for an order  of certiorari to remove  any judgment, order, decree, conviction or  other proceeding  for the purpose  of it  being  quashed, unless the application  for leave is  made not  later than  six months after the  date of  the proceeding,  or such shorter period  as may be prescribed by any Act and where  the proceeding is subject  to an appeal and time  is limited by law for the bringing of the  appeal, the judge may adjourn the application for  leave until he appeal is  determined  or the time for appealing  has expired.”

11. From the above provision, it is clear that to challenge    any order, decision, or proceeding by way of Judicial Review orders of certiorari leave must be obtained within 6 months from the date of such decision. According to the respondent’s counsel, the application for certiorari cannot stand because it   was brought after 6 months from 15th September 2015. On the other hand, the exparte applicant maintains   that the application for leave was brought before expiry of 6 months on 15th March 2016. The law is clear that leave for  certiorari  must be  sought before  the end of 6 months  from the date of the decision  which is brought  to be  quashed, since, that  leave is  sine quo non the lodging  of the substantive motion.  It is that leave   that confers on this court the jurisdiction to hear the substantive motion seeking for Judicial Review Orders of certiorari.  That  being the case, although  there are  other  prayers  for mandamus  and prohibition which are  not limited by  the 6 months  period  within which leave  should be  brought, where  the court finds that  application for  leave for  orders of certiorari  was not  brought or  filed  within 6 months  from the date  of the impugned  decision, then  the court  would not  have  the jurisdiction   to hear  and determine  the Judicial Review  prayers for certiorari and it  would  proceed  to strike  out that prayer   and leave the other prayers which are  properly brought. In other words, the issue of limitation of time is a point of law which goes to the root of the matter.  Leave to apply for Certiorari is so fundamental that without it, this court cannot hear and determine the prayer for certiorari.  As  was  held in  Owners  of Motion  Vessel  ‘Lilian ‘S’ V Caltex Oil (K) Ltd [1989] KLR 1

“…… jurisdiction is everything, without  which  a court has no  power to make one  more step.  Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.  A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

12. Having  found that  the preliminary objection  as raised  touching  on the Judicial Review  orders   of certiorari is a pure  point of  law and goes to  the jurisdiction  of the court as  donated  by Order  53 Rule  2 of the Civil Procedure Rules and Section 9(3)  of the Law Reform Act, no discretion  of this court  can be  invoked in deciding  that issue of jurisdiction  of the court.  The issue, therefore  for determination is whether  the application  for leave  to apply for Judicial Review  orders  was brought after expiry of  6  months  from the date of the  impugned  decision.

13. Both  parties  are in agreement  that the  letter dated  15th September  2015  is the subject  of these  proceedings.  That letter  was in response  to the  letter of 28th July 2015   by the applicant  seeking for  authority to construct   a standard  exit  from Atlas  Copco EA Limited along Airport  North Road.  In the letter of 15th September 2015, the respondent Kenya Urban Roads Authority stated as follows:

“According to PDP No. 13 of 1985, the area allegedly allocated as original LR No. 24809 after change of use, was reserved as a power way leave.  We therefore maintain our position that the said land is a public utility and any allocation and subsequent survey of the same for private use is irregular.

Consequently, we are unable to grant you authority to construct your access on the said   land.  Please be informed that our earlier approval vide the letter Ref KURA/TECH/9/6/VOL 5(89) of 23rd July 2012 is hereby revoked with immediate effect.  We attach copies    of the PDP showing the said area for your ease of reference.

Yours faithfully

Signed

Eng. S.M. Kinoti

Ag Director General

Copy to: The chairman

The National Lands Commission

P.O. BOX 44417

NAIROBI.”

14. Although Mr Njagi attempted to argue that it is  not clear when  the above letter    was communicated  to the applicant and that it   is not a formal order or decision  or proceeding contemplated  in Order 53 Rule 2  of the Civil  Procedure  Rules, he did not  indicate  whether, besides that letter  which indeed  communicates  the decision of the respondent Kenya Urban Roads Authority   rejecting  to grant  authority to construct  a standard  exit   from Atlas  COPCO EA Ltd  along Airport   North  Road, there was any  other decision.  That  being  the case, in my humble  view, that letter  clearly communicates  the decision of Kenya Urban Roads Authority which is the statutory  body vested with the  mandate  to grant or refuse to grant  authority  that  was being  sought by the exparte applicant  in its letters of  28th July 2015.  And in seeking  to challenge  that decision of  15th September  2015, the exparte  applicant did, on 15th March 2016, under certificate of  urgency, file  a Chamber Summons  dated the same day, seeking  in prayers Nos 2,3, and 4, leave  to be granted  to apply for  Judicial Review orders of certiorari, mandamus; and prohibition .

15. In prayer  No.2 for leave to apply  for Judicial Review  Order of certiorari, the  applicant  clearly  seeks to  have the   decision of Kenya Urban Roads Authority, the  1st respondent  made on 15th  September  2015, refusing/declining the application  by the applicant  to  construct  a standard  exit  from its premises  on LR 24809 for access  to Airport  North Road  for the applicant’s  heavy vehicles and  equipments  in safety and convenience quashed.

16. The respondents contended  that the  application for leave  was filed on  5th April  2016  which  was long  after six months and nearly  7  months  of the  impugned  decision. I do not agree.  The court record  is very clear  that the application  for leave  to apply for Judicial Review  Order of certiorari, among  other  Judicial Review  Orders   was made on 15th March 2016, which   was before  expiry of 6 months from 15th  September, 2015.  To be precise, and as  was correctly  pointed out  by Mr Njagi counsel for the  exparte  applicant, the application for leave  was  filed within  6 months, and one  day to expiry   of the said   period. That application for leave to apply was considered by Honourable Odunga J on 16th March 2016  and he granted leave  to apply within  21  days from  16th March 2016.  Twenty one days lapsed on 6th April 206.  However, the substantive   motion   was filed on 5th April 2016   which was within the 21 days of the date when leave was granted.

17. In calculating  time between  two events, the day on which the first  event  occurs is excluded and the day by  the last  event  may occur   is included ( See Order  50 Rule  8 of the Civil Procedure  Rules and Article  259 (5) of the Constitution.

18. I must  emphasize that  what order  53 Rule  2  of the Civil Procedure  Rules requires to be done within  6 months  is to apply for leave  of court to apply  for the substantive  Judicial Review  Orders of Certiorari.  Once   the application for leave   is lodged within 6 months, and the substantive motion is filed within the time frame given by the court granting leave, the court is properly seized of the substantive motion and vested with the necessary jurisdiction to hear and determine   the Judicial Review matter.

19. For the above reasons, I find that the preliminary objection herein filed and argued by the Respondent’s counsel is us unwarranted, unmerited and misplaced.  I dismiss it with costs to the exparte applicant.

Dated, signed and delivered in open court at Nairobi this 19th day of July, 2016.

R.E. ABURILI

JUDGE

In the presence of :

Mr Munene for the 1st Respondent

Miss Gatwiri h/b for Charles Njagi for the Exparte Applicant

Court Assistant: Adline