Republic v Kenya Urban Roads Authority, Equity Bank Kenya Limited, Nairobi City Council & Country Clock (Kenya) Limited Exparte Cytonn Investments Management Limited [2017] KEHC 897 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW

MISCELLANEOUS APPLICATION NO.  394 OF 2016

IN THE MATTER OF AN APPLICATION BY CYTONN INVESTMENTS

MANAGEMENT LIMITEDFOR JUDICIAL REVIEW ORDERS

OF PROHIBITION AND CERTIORARI

AND

IN THE MATTER OF SECTIONS 7, 8 AND 9 OF THE FAIR ADMINISTRATIVE ACT, 2015

AND

IN THE MATTER OF THE DECISION BY THE KENYA URBAN ROADS AUTHORITY

TO ISSUE EQUITY BANK KENYA LIMITED WITH AN APPROVAL TO

BEAUTIFY A ROUNDABOUT UPON A ROAD RESERVE.

AND

IN THE MATTER BY THE DECISION BY THE NAIROBI CITY COUNTY TO ISSUE

TWO APPROVALS FOR THE BEAUTIFICATION OF THE SAME ROUNDABOUT

BETWEEN

REPUBLIC..................................................... APPLICANT

VERSUS

KENYA URBAN ROADS AUTHORITY..............1ST RESPONDENT

EQUITY BANK KENYA LIMITED........................2ND RESPONDENT

NAIROBI CITY COUNCIL...................................3RD RESPONDENT

AND

COUNTRY CLOCK (KENYA) LIMITED.......INTERESTED PARTY

EXPARTE

CYTONN INVESTMENTS MANAGEMENT LIMITED

JUDGMENT

1. On 30th August 2016, the exparte  applicant  Cytonn Investments  Management  Ltd  sought  and obtained  leave of this court  to institute Judicial Review proceedings challenging  the  decisions of the  1st  and  3rd respondents Kenya Urban Roads  Authority (KURA) and  Nairobi City County (NCC) respectively  made on 7th June  2016  and  20th June  2016  respectively.

2. The applicant was granted 21 days within which to file the substantive motion. On 16th September  2016,  the exparte  applicant  dutifully  filed  a notice of  motion dated 15th September, 2016 seeking the  following  Judicial Review  orders:

1. An order of Certiorari  to remove  into this  court and  quash the decision of the Kenya Urban Roads Authority  contained in its letter dated 7th June 2016, granting  approval to Equity Bank Kenya Limited  for beautification of the roundabout  at the junction of Hospital Road and  Elgon Road  in  the Upper Hill area, Nairobi.

2. An order of Certiorari to remove into this court and quash the decision of the Nairobi City County contained in its letter dated 20th June 2016 granting approval to Equity Bank Kenya Ltd for Landscaping Scheme of the roundabout at the junction of Hospital Road and Elgon road in the Upper Hill Area, Nairobi.

3. An order of prohibition, to prohibit Equity Bank Kenya Limited through itself or through its agents, officers, servants and or employees from pulling down, damaging, tampering with, demolishing, knocking down, wasting, alienating, or in any way interfering with the clock located upon the roundabout of Hospital road, Mara road and Elgon Road, in the Upper Hill area, Nairobi.

4. That costs be provided for.

3. The application is grounded on the statutory statement and verifying affidavit sworn by Doreen N. Onwonga  on 30th August  2016  filed  together with the application  for leave  to apply.

Exparte applicant’s case

4. The exparte applicant’s case is that it is a limited liability company incorporated under the Companies Act Cap 486(Repealed). That as part of its wider strategy for growth and business development, the exparte applicant embarked on an advertisement campaign in Kenya and in the  region, which advertisement  campaign   includes  outdoor  advertising.

5. That on  5th July  2016  the exparte applicant entered  into a  contract for  advertising  with the interested party  herein Country Clock (Kenya) Limited where the applicant  rented  an advertising Clock Unit  located  at the roundabout  of Hospital Hill  Road, Mara Road  and Elgon  Road in   the  Upper Hill area, Nairobi, for a term of two years from 16th August, 2016  upto  16th August  2018.

6. That the ‘clock’ is used to display the applicant’s corporate brand and identity, including its log.  It is  alleged that  prior to the entering/signing  of the contract  with the interested party, the  applicant had sought  and  obtained  all necessary  approvals  from the  3rd respondent Nairobi City County with respect  to construction of the clock and the beautification of the  roundabout.

7. Therefore, that  to the  applicant’s  shock  and dismay, on  25th August 2016 the applicant received  an email from the interested  party Country Clock (K) Ltd forwarding an email from the  2nd respondent  Equity Bank Kenya Ltd  issuing an open  threat  to “forcefully remove” the said clock on or about 26th August  2016 and also suggesting  that the Kenya Urban Roads Authority had not ‘handed over’ the roads in question to the 3rd respondent Nairobi City County and further proposing  that while the matter was to be pursued, the clock should be relocated to an alternative  location to avoid   destruction  at the hands of Equity  Bank of Kenya  Ltd.

8. According to the applicant, the decision  by Mumbi J in Petition  No. 472/2014 between Council of Governors vs Attorney General and 4 Others  [2015] e KLR  made  on 11th December  2015 declared that  the management, development, rehabilitation  and  maintenance  of all public  roads, save  for National Trunk Roads, are functions  of the County Governments and  that the  control of outdoor  advertising on road   reserves is an  exclusive  function of County Government  and that therefore  in light  of the above judgment, the  1st  respondent  Kenya Urban Roads Authority had no business issuing approvals for the beatification of the  said  roundabout  as  the said approval  contravened  the  above judgment  which  was  in force.

9. In addition, that although  the  2nd  respondent Equity Bank  Limited was granted  approval by  the 3rd  respondent City County  of Nairobi for a ‘landscaping scheme,’ that approval came after the applicant had been granted  the approval.

10. That despite  lodging a complaint  with the 3rd respondent City County, the matter remains unresolved and that having  received  the first approval for beatification of the  roundabout, it  was  the applicant’s legitimate expectation that no other  approval  would be  issued to another  party for the same  purpose.

11. Further, that so far, the applicant had expended significant  amount of money  on the ‘clock’ and  the  exact  location of the ‘clock’ is key to its advertising strategy.  That by the 2nd  respondent Equity Bank Ltd  threatening  to ‘forcefully  remove’ the clock connotes the  use of violence  and wanton destruction  of property  which is  patently  illegal  and  has no place in the  present  constitutional dispensation.

12. It was further alleged that should the ‘clock’ be forcibly removed as brazenly  threatened by the Equity Bank Ltd, then the applicant  shall suffer  unmitigated  loss in terms  of significant  financial  costs already invested in the ‘clock’, and the unquantifiable  advertising  opportunities  that will have gone up in smoke.

The 1st respondent’s case

13. The application  by the exparte applicant was  opposed by the 1st  respondent ( Kenya Urban Roads Authority) who swore  a replying affidavit  by  Engineer Joseph Kimanthi  Kivanguli  on 22nd  September  2016  and filed in court on 28th September  2016 contending  that Kenya Urban Roads Authority is responsible  for the National Roads and that the Roundabout in question falls in  the  category  of Urban National  Roads  as it  has not been handled  over to the Nairobi City County Government.

14. The 1st respondent therefore contended that that it therefore approved the beautification of road  reserves  on the roundabout and had nothing to do with the outdoor   advertising  components if  any, to be considered  by the Nairobi City County. That Kenya Urban Roads Authority is still carrying out  construction works on the expansion of Upper Hill roads  project   and  which is nearing completion  hence it  was not available  for let out  of the advertising  or for a subject  Clock  until the works are completed  and  the cited road  handled over to Nairobi City County Government hence the prerogative orders sought herein are unmerited.

The 2nd respondent’s case

15. The 2nd respondent Equity Bank of Kenya Limited also opposed the application and filed  a replying affidavit sworn  by Reverend Josphat  Gakuya, the  Administrative Manager  of the  2nd  respondent  Equity  Bank  Ltd sworn on 24th October 2016 contending that the 2nd respondent  in a bid  to  keep  the environment clean and  neat  sought authority to maintain the subject roundabout  and  further  expressed their wish to install brand advert around the  roundabout  and  so it sought  and  obtained  approval  on  7th June  2016   for  beautification  of the roundabout  at the junction of Hospital Road  and  Elgon Road after payment of requisite  fees.

16. That upon obtaining beautification authority, they sought  authority to landscaping scheme from the  3rd  respondent  which approvals were granted on 20th June 2016 and that they  immediately  engaged Intriscapes  Ltd, a contacting  firm at a cost of kshs 632,605 for purposes of beautification, rehabilitation and direct maintainance and the work  commenced at the roundabout.

17. That  out of courtesy, the  2nd respondent reached  out to  the interested party Country Clock on several occasions by phone and email requesting them to remove the country clock erected at the subject  roundabout  to enable  the  2nd respondent  proceed with   their plans  but that the interested  party declined.

18. That the applicant has no locus standi before this court because the orders sought are intended to protect private interests over another party’s interests.

19. That this is a purely civil dispute and not Judicial Review matter which Judicial Review is preserved for the vindication of purely constitutional rights. That the claim that the applicant will suffer unquantifiable financial loss can only be ventilated or adjudicated upon in civil courts.

20. That under the Physical Planning  Act, cap 286  Laws of Kenya, Sections 7-10, Liaison  Committees are established and empowered to  hear and  determine  appeals  lodged  by persons  aggrieved  by decisions made by local authorities  under the Act.

21. That  the applicant  is challenging  the merits of  the  decisions made  by the 1st  and  3rd  respondents  which is  outside  the purview  of Judicial Review.

22. That the  court  should not  entertain this matter as there is  an alternative  statutory  procedure  for challenging  the  decision  of the 1st and  3rd  respondents.

23. That the  judgment of  Mumbi J in  Petition  472/2014  only applied to  the  20 Counties  that had appealed and that todate, gazettement of the transfer of functions  of the National to County Governments has not been done hence Article 186 of the Constitution shall not  apply especially  where the subject road has not  been transferred  to the Nairobi City County Government  by Kenya Urban Roads Authority established under Section 49 of the Kenya Roads Act, 2007.  That therefore approvals for  beautification  of the road  reserve  still lies  with Kenya Urban Roads Authority hence  it cannot  be issued  by the City County  which had  no such authority.

24. That the 2nd respondent  respects  the rule  of law  and  therefore  it would  not forcefully remove  the clock  from the roundabout  which would  amount to illegal  action on its  part.

25. That as the interested party had offered to relocate the clock from the roundabout vide email of 25th August 2016, the applicant has come to court with unclean hands.

26. It was contended that this application does not meet the threshold   for Judicial Review, is frivolous, vexatious and an abuse of the court process hence it should be dismissed.

The 3rd respondent’s case

27. The 3rd respondent’s replying affidavit was only send in soft copy format. The court did not trace it in the court file. In opposing the exparte applicant’s notice of motion, the 3rd respondent contends that it is the only entity mandated to authorize and license any landscaping within the County and to control outdoor advertisements on road reserves and other public areas as is the case herein.

28. Further, that it granted the interested party to erect the country clock at the disputed venue but denies that the exparte applicant was granted any approval for beautification of the roundabout in issue claiming that the department that granted approval is not authorized, to do so, and that the only lawful and procedural approval is the one given to the 2nd respondent.

29. It was further contended that the  department  responsible  for such  approvals  is the Department of  Urban and Physical  Planning and not the  Environment, Energy and Water Sector as indicated in the impugned  letter of approval given  to the exparte applicant.

30. It was contended that in this case, the road in issue was still under construction and had not been handed over to the Nairobi County Government hence; the roundabout was still under Kenya Urban Roads Authority which was constructing it. As such, the control of outdoor advertising does not solely lie with the 3rd respondent until the road has been transferred to the 3rd respondent.  It was therefore contended that  there is concurrent jurisdiction to grant  approval between the 1st and  3rd  respondents hence  both 1st and  3rd respondents must grant the  approval for the  beautification.

31. That the 3rd respondent never received any application for consideration for approval to beautify the roundabout from the applicant.

32. mIn addition, it  was  contended that the 3rd  respondent could not  grant approval for a road that was  still under construction and under the purview of Kenya Urban Roads Authority.  That the jurisdiction of the 3rd respondent is only to endorse and ratify approvals given by the 1st respondent (Kenya Urban Roads Authority).

33. It  was accordingly  contended that the  approval  granted  to the applicant was  unilateral  hence irregular  and  unprocedural and  fraudulently acquired  as it  was not  given by  the  department  mandated  to give such approval.

34. The 3rd respondent claims that the applicant having failed to follow the correct process in seeking approval to beautify the roundabout under  contest, they are not amenable to be granted  this  equitable  remedy.

35. Secondly, that as  the applicant  illegally procured  the approval to  beautify the roundabout, it is not entitled  to the orders sought  and that  the doctrine of  exturpi causa  applies.

36. It was also contended that the  applicant  should  have  sought  the internal dispute resolution mechanisms provided in the County Government of Nairobi before resorting to the Judicial Review.  That the ADR is stipulated  in Section 10(1)  of the  Physical Planning  Act.  It was therefore contended that these proceedings are not  deserved and the court was urged to dismiss the Judicial Review application with costs

The Interested party’s case

37. The interested party Country Clock (K) Ltd filed a replying  affidavit  on  20th February  2017 sworn by Mr Paul  Mutemi, its Director, on 17th February 2017 supporting the exparte applicant’s case and stating that that it is an incorporated company primarily involved in provision of outdoor  advertising  features  through erecting and  installing  digital  clocks  at designated  locations  around  the country.

38. That in June 2015  the City County of Nairobi   approved its application  to install  a  clock  unit on the   roundabout  of Hospital Road. That after  the  approval, the  interested party  acquired  rights over  the site upto  31st  December  2016  and  subsequently  it set up  a facility at the said  location and  paid for it.

39. That on 5th July 2016  the interested party entered into a contract  of  advertisement with Cytonn Investments Management Ltd  for two years  to brand  and identify  the applicant  at the said location  and the branding of the clock with the Cytonn logo   was done.  That  they were  shocked  when  Equity Bank staked  a claim  on the same  location demanding  that  the clock  be pulled  down or the same  be forcefully removed.

40. That following the threats, the interested party wrote to the City County Director of Urban Planning seeking clarification on the confusion created  by the demands of Equity Bank.

41. The interested party claims that  the 2nd respondent  Equity Bank Limited received  approval from a body  not mandated  by law  to approve  or issue licences  to landscaping  activities.

Exparte applicant’s further affidavit

42. The exparte  applicant  filed a further affidavit on 3rd May  2017  sworn by  Doreen N. Onwonga on 2nd March  2017 responding  to  the depositions  by the  1st, 2nd  and  3rd respondents  in their replying  affidavits as  well as the  interested  party’s  replying  affidavit.

43. The exparte applicant  reiterated  the contents  of its verifying   affidavit and claim and averred  that Legal Notice  No.2 published by the defunct Transition Authority on 22nd January 2016  completed  the process  of transfer  of functions  to County Governments, which  was also done in  compliance with the judgment of Mumbi J in  Petition  No. 472 of  2014.

44. That the judgment in Petition No. 472/2014 never created a new category of “Urban National Roads” that would fall under the mandate or ambit of the 1st respondent (Kenya Urban Roads Authority).

45. That the  1st respondent’s  mandate is only  limited to National Trunk Roads which the subject road is not hence the word  ‘beautification’ does  not distinguish the road.

46. On the  depositions by the 2nd respondents, the exparte  applicant  maintained  that the contract  between the 2nd respondent  and  Intriscapes  Ltd   is incomplete, has missing pages  and  irrelevant  to these  proceedings.

47. That there was no courtesy exhibited in the email of  24th August  2016  by the 2nd respondent which signs  off with  threats  to forcefully remove  the interested  party’s  clock.  That the matter is not a civil dispute as it concerns the functions by statutory bodies in breach of their lawful authority and hence  it falls  squarely  in the purview of administrative  law.

48. That in any event, the fact that there is a commercial implication  arising from the  1st and  3rd  respondent’s  ultravires  actions does not render the matter purely commercial but that the commercial harm is incidental or secondary to the exparte  applicant’s  main  grievance  against the  1st and  3rd  respondents.

49. The  exparte  applicant maintained  that the Liaison  Committees  established under the Physical Planning Act would not have jurisdiction to adjudicate over a matter challenging the 1st respondent’s actions nor to issue the nature of  the reliefs  sought by the exparte  applicant  which can only be  made  by the High Court.

50. That there is a  contradiction between  the  1st  respondent  and  2nd respondent’s  contensions on whether  there is a  gazettment  pursuant   to judgment  in Petition No. 472/2014  which gazette  notice  was  not even  produced.

51. That  landscaping  and  beautification  of the roundabout  both mean management of roads which is in the preserve of the  County Governments  and not the  1st respondent, in line  with the judgment  in Petition  472/2014.

52. In response to the 3rd respondent’s replying affidavit, the exparte  applicant maintained  that it  was  granted  approval to beautify the  roundabout  and that the interested party was granted  approval  to  erect a  clock and  that the  3rd respondent  avoids  the issue of  double approval including  whether  the “first in time” would  prevail.

53. On the interested party’s replying  affidavit, the exparte  applicant  concurs with the depositions therein and concludes by urging  this court to  allow the  substantive  motion as prayed.

Parties’ Submissions

54. The parties agreed and filed written submissions to canvass the notice of motion.

The exparte applicant’s submissions

55. The exparte applicant filed written submissions on 20th September 2017.  They are dated the  same day, reiterating the depositions  and facts contained  in the verifying  and  further affidavit  and the grounds  contained  in the statutory statement accompanying  the  chamber summons  for leave.

56. According to the  exparte  applicant, the judgment in Petition  No. 472 of 2014 resolved fully and finally the controversy  surrounding  the role and functions  of the Kenya Urban Roads  Authority  vis avis  the County Governments  in respect of the matters  relating  to roads and that , save for  national trunk roads  which are  managed  by the National Government, all County roads  are managed  by the County Governments.

57. It  was therefore  submitted that  the 1st  respondent  acted ultra vires and illegally when it purported to approve the  beautification of the County Road by the 2nd  respondent  Equity Bank Ltd.  Reliance was placed on SDA Church ( EA) vs Permanent Secretary Ministry of Nairobi Metropolitan  Development & Another [2014] e KLRwhere the court explained what illegality is.

58. It was submitted that the  respondents  are putting  forth  the  same arguments  which they  advanced in Petition No. 472/2014  concerning the  roundabout  being  within the  definition of a “national  trunk road” in which the  court held that “ the  function of construction, operation  and maintainance  of county roads, as well as the control of outdoor  advertising, is vested in County Governments  and that the national government is vested with the construction and operation of  national trunk roads, and the setting of standards for the construction  and  maintainance  of other roads by counties.  It has no role in the construction of county roads, or in the control of outdoor  advertising on roads.  Its  agencies  such as Kenya  National Highway Authority, Kenya  Urban Roads Authority  & Kenya National Highways Authority(KeNHA) have no role  with respect  to county roads  upon full transfer  of the roads functions to the  counties.

59. It  was  submitted that there  was  no evidence  of gazette  notice  supplement  No. 2  published  on  22nd January  2016  creating  a new category of roads known as “Urban National Trunk Roads” to fall  in the mandate  of the 1st respondent  and that  as such  there is no  such gazette  notice.

60. It  was  submitted, relying  on Republic V National Transport Safety Authority & 10 Others exparte James Maina Mugo[2015] e KLR that whoever  alleges  must prove as espoused  in Section  107(1)  of the Evidence Act, Cap 80 Laws  of  Kenya.

61. It  was further submitted that  the 1st  respondent  had no  power to  grant approval  to the  2nd respondent, which act  was  ultra vires  and  illegal.

62. Further, that with regard to the 3rd respondent’s double  approval  of the beautification/landscaping  of  the same  roundabout  to both  the applicant  and  2nd respondent,  such a decision  was irrational and unreasonable.  Reliance was placed on the Republic vs National Transport and Safety Authority & 10 Others exparte James Maina Mugo(supra) citing with approval Council of Civl Service  Unions  v Minister  for  Civil Service [1985] A.D. 374  on irrationality  and  unreasonableness.

63. It  was submitted that the dual approval would breed conflict  between   the applicant and the 2nd  respondent  on who between them  was  entitled  to beautify/landscape  the roundabout which  defies  the very logic behind  the  requirement  for approval.

64. Accordingly, it  was  submitted  that the  court should find that the earlier  approval  given to the exparte  applicant  on  16th June  2016  prevails  over the one  of 20th June  2016  given to the 2nd   respondent.  Reliance  was placed  on Vekariya Investments Ltd vs KAA & 2 Others [2014]  e KLR  where the court cited with approval the decision  of the Court of Appeal in  Wreck Motors Enterprises vs Commissioner  of Lands  CA  71/1997that  “the  first time  prevails.”

65. On whether  there  was  an alternative remedy  to the exparte  applicant’s  grievance, it  was submitted  relying on Republic vs  County Government of Nairobi & Another exparte Insfadian  Sohaili [2017] e KLR  where the court made  an  exemption to the “exceptional  circumstances” and that in this case, the exceptional  circumstances  relate  to threats  by the 2nd  respondent  in the email dated  24th August  2016  wherein the  2nd respondent threatened to “forcefully  remove” the clock from the  roundabout  by 26th August  2016; which  was  a threat  to wanton destruction  of property and which is  patently illegal hence the need for this court to intervene by way of a prohibition,  at the leave stage  which saved  the ‘Clock’  from the 2nd  respondent’s bellicose intentions.

The 1st respondent’s submissions

66. The 1st  respondent’s  submissions  dated  28th April  2017  were filed  on  3rd May  2017  reiterating the  depositions  by Engineer  Joseph Kimanthi  Kwanguli sworn on  22nd September 2016.  The 1st respondent maintains that it is mandated to grant approval hence the  3rd respondent’s approval  is questionable.

67. That the transfer of road  functions to the  County Governments, in particular Hospital Road and Elgon Road where the roundabout is located, to the 3rd respondent has not been effected  and that the said road  are classified as “Urban National Roads” and fall squarely  within its  mandate.

68. On the exparte  applicant’s  reliance  on Petition No. 472/2014  Council of Governors vs Attorney General & 4 Others  [2015] e KLR, it  was  submitted that there is  an exception to the  first declaration  by the court to  the  effect that  the  ‘National trunk roads’ are exempted and that the exparte applicant had not adduced evidence to prove that subject roundabout is not situated  within the “national  trunk roads.”

69. Further, that the decision  by Mumbi J  does not  apply to all the 47 counties in Kenya but to 29 counties that had lodged  an appeal with the Senate.

70. It  was  submitted that  the  applicant  herein  has not provided  evidence to show that Nairobi City County was one of the 29  applicant Counties for transfer of functions by the time  the  impugned  approvals  were issued.

71. It  was  further submitted that  this application  is not within the  scope of Judicial Review  which is only  concerned  with the decision  making  process  and not  with the merits  of the decision  itself.  Reliance was placed on Republic vs Director of Public Prosecution  & 2 Others  exparte Francis  Njakwe  Maina  & another [2015] e KLR and  Republic  vs Attorney General & 4 Others exparte Diamond Hashim Lalji and Ahmed  Hasham Lalji [2014] e KLRon the scope of Judicial Review remedies.

72. Further reliance was placed on Republic vs Hangsraz Mahatima  Gandhi  Institute  & 2 Others[2008] e KLR  and the writings by Peter Kaluma in his book “Judicial Review  Law: Procedure  and  Practice , 2009  at page  128. The case of  Muyodi  vs  ICDC& Another [2006] EALR 1 page 243 on the meaning  of  mistake  or error apparent on the face of the record, citing Nyamogo and Nyamogo v Kogo [2001] IEA 174(sic)was also referred to.

73. It was further submitted that the exparte applicant had failed to exhaust the alternative available Dispute Resolution Mechanisms to Judicial Review as espoused in Article 47  of the  Constitution and Section 9(2),(3) and (4) of the Fair Administrative Action Act  No. 4  of  2015.

74. It  was  submitted that in  this case, Sections 7,8,9 and  10  of the Physical Planning Act sets out  the  functions  of the  National Physical  Planning Liaison  Committee which is established ,(a)  to hear and determine appeals lodged by a person or local authority  aggrieved  by the decision of any other liaison  committee and  that this court  in Republic vs County Government  of Nairobi & Another exparte Isfandiar Sohaili(supra) made it clear  that a party must  first  exhaust  alternative  remedies  before seeking  out Judicial Review.

75. The 1st respondent submitted adopting the depositions in its replying affidavit and contended that no illegality, irrationality  and  procedural  impropriety  had been demonstrated  in its granting of approvals for  beautification and  landscaping  of the roundabout  to the 2nd respondent  by Equity Bank (K) Ltd and urged the court to dismiss the exparte applicant’s case.

The 2nd respondent’s submissions

76. The 2nd respondent  filed its  submissions  on 10th August  2017, dated 4th August 2017 reiterating its replying affidavit  depositions by Reverend Josphat Gakuya  filed  on 24th  October  2016  and  framed two issues  for  determination  namely:

a) Whether the prayers sought by the exparte applicant are available; and

b) Who should meet the cost of the suit.

77. On whether the  prayers  sought are  available, it  was submitted, relying  on KNEC  vs Republic CA 266/1996  that in issuing  the approvals to the 2nd respondents, the 1st respondent  confined itself to the matter under its jurisdiction in compliance  with the decision  in Petition No. 472/2014  and  the publication  by the  Transition Authority.

78. That  only the 3rd respondent  has the  mandate  and  authority  to licence  or authorize  any landscaping  within the County and  control outdoor advertisement on road reserves and  other public   areas.

79. It was submitted that certiorari sought was not available  because it  was not  demonstrated  that the respondents had acted illegally, irrationally or with procedural impropriety or in  error of law, or for  lack of  jurisdiction  or in breach of the rules  of natural justice or that the determination by the respondents   were procured  by fraud, collusion or  perjury.

80. On who should bear costs, it was submitted that as the application by the exparte applicant is frivolous and an abuse of the court process, it should be dismissed with costs to the 2nd respondent. The 2nd respondent’s counsel annexed to their submissions authorities but never submitted on the relevance of these authorities to this case.

The third respondent’s submissions

81. The 3rd  respondent  filed its  submissions  on 20th September  2017 dated the same  day and  reiterated the depositions in their  replying affidavit while setting out three issues for  determination namely:

1. Whether it is the 1st and 3rd respondent that has the  mandate  to grant  approval for beautification of roads:

2. Whether  it is  the  exparte  applicant or the 2nd respondent that was granted the lawful approval to beautify the  roundabout.

3. Whether the exparte applicant is desiring of the orders  sought?

82. On the  first issue above,  it  was submitted that the Petition  No. 472/2014 settled the issue of which state agency  is vested with power and responsibility to grant approval for  beautification of roads, and that it  is the County Governments, with the exception of  national  trunk roads. However, it  was  submitted that  in this case, the road  in issue  was still under construction and  had not been handed over to the Nairobi County Government hence, the roundabout was still under Kenya Urban Roads Authority which was constructing  it. As such, the control of outdoor  advertising does not solely lie with  the  3rd respondent  until the road  has been transferred  to the 3rd respondent.  It was therefore submitted that there is concurrent jurisdiction to grant  approval between the 1st and  3rd  respondents hence  both 1st and  3rd respondents must grant the  approval for the  beautification.

83. On whether the applicant or 2nd respondent was granted  the  lawful approval  to beautify the roundabouts, It  was submitted that the 3rd respondent never granted any approval to the  exparte applicant and that the only lawful and procedural approval is the one given to the 2nd respondent.

84. That the 3rd respondent never received any application for consideration for approval to beautify the roundabout from the applicant.

85. Further, that the  department  responsible  for such  approvals  is the Department of  Urban and Physical  Planning and not the  Environment, Energy and Water Sector as indicated in the impugned  letter of approval given  to the exparte applicant.

86. In addition, it  was  submitted  that the 3rd  respondent could not  grant approval for a road that was  still under construction and under the purview of Kenya Urban Roads Authority.  That  the jurisdiction  of the 3rd  respondent  is only to endorse  and ratify  approvals given by the 1st respondent (Kenya Urban Roads Authority).

87. It  was accordingly  submitted  that the  approval  granted  to the applicant was  unilateral  hence irregular  and  unprocedural and  fraudulently acquired  as it  was not  given by  the  department  mandated  to give such approval.

88. On whether  the  orders sought  are deserving, it  was submitted that the applicant  having failed to follow the correct  process  in seeking approval  to beautify the roundabout under  contest, they are not amenable to be granted  this  equitable  remedy.

89. Further submission was made to the effect that  as  the applicant  illegally procured  the approval to  beautify the roundabout, it is not entitled  to the orders sought  and that  the doctrine of  exturpi causa  applies.

90. In addition, it  was  submitted  that the  applicant  should  have  sought  the internal dispute resolution mechanisms provided in the County Government of Nairobi before resorting to the Judicial Review.  That the Alternative Dispute Resolution mechanism is stipulated in Section 10(1) of the Physical Planning Act.  Reliance was placed on Republic vs County Government Nairobi & Another exparte Isfandiar Sofaili [2017] e KLR.It was therefore submitted that these proceedings are not deserved and the court was urged to dismiss the Judicial Review application with costs.

The interested party‘s submissions

91. On the part of the  interested party, it  was submitted through  its written submissions  filed on  20th September  2017 framing  two issues  for determination namely:

a) Who has the  first claim of rights.

b) Can the two rights co-exist?

92. On who  has the first  claim  of rights, it  was submitted that  the decision  in Petition No. 472/14  settled  the issue of  functions  between the National Government  and the County Governments  hence the  1st respondent  has no business  issuing approvals  for  beautifications or landscaping of the said roundabout as the Constitution gives that  mandate to the  3rd respondent.  As a result  it  was  contended that the approval given by  the 1st  respondent contravenes the  decision  on Petition  472/2014  and therefore  the licences  given to the  2nd respondent  are a pure pretense.

93. That as approval by the 3rd respondent with regard to the  beautification and landscaping came first, the principle of equity  that “ where he  equities are equal, the first in time shall prevail” is  in favour of  the  applicant  and  the interested party .

94. On whether  the two rights  can  co-exist, it  was submitted that the licence  from the  3rd respondent to the  2nd respondent  was different from that approval given to the applicant and  interested party who already had the advertising lincence  whereas  the 2nd  respondent  acquired the landscaping  licence, which two rights are different and can co-exist without any  conflict  between  either  parties.

95. That the  2nd respondent’s actions  are in  bad faith  and  will cause financial distress  to the  applicant  and the interested party who have spent a significant  amount of resources to their respective  causes.  That both parties can peacefully co-exist at the said  roundabout  without  infringing  on the other’s rights.  It  was  submitted that the forceful removal of the  Clock by the  2nd respondent will amount to violence  and  wanton  destruction  of property which is patently  illegal.  The interested party urged the court to grant the orders sought.

DETERMINATION

96. I have carefully considered the application for Judicial Review, the statutory statement, verifying affidavit and annextures thereto, the replying affidavits, further affidavit by the exparte applicant and the respective parties’ written and oral submissions  and  authorities  cited as  adopted  by the parties’ advocates  as canvassing the application.  In my humble view, the main  issues for determination  are:

1. Whether  the exparte  applicant   had an alternative  remedy for  resolution of the dispute herein and  if so, whether  it should  have first  exhausted that  remedy before  filing  for  Judicial Review.

2. Whether the judgment in Petition No. 472/2014 applies to  this case in material  particulars.

3. Whether the 1st respondent had any power to grant an approval for the beautification and landscaping of the contested roundabout.

4. Whether the approval given by the 3rd respondent to the applicant was irregular/fraudulent.

5. Whether  the  applicant  is  entitled  to  the  orders sought.

6. What orders should  this court make.

7. Who should bear the costs of these Judicial Review proceedings?

97. There are other anciliary questions which this court will endeavour to answer.

98. On the issue of whether the exparte applicant had an alternative  remedy  for dispute  resolution  before resorting  to Judicial Review remedies, the respondents have strongly submitted that the exparte applicant  is not entitled  to the  remedies  sought  because  Sections 7,8,9 and  10  of the Physical Planning Act are clear  that Liaison Committees  are empowered  to hear  and  determine  appeals  lodged  by persons  aggrieved  by decisions  made by local authorities under the Act.

99. It  was  therefore  contended that the applicant ought to  have filed  an appeal as stipulated in the Physical Planning Act  if they  were aggrieved by the approvals/decisions of the 1stand 3rd respondents  instead  of rushing  and  challenging  the  merits  of the 1st and 3rd respondents’ decisions by way of Judicial Review.

100. The  respondents also submitted in  contention that Section 9(2), (3) and  (4) of the Fair  Administrative  Action Act  is clear that  where  there are internal  review  or appeal mechanisms, a  party challenging an administrative decision or action must first resort to the internal dispute resolution mechanisms before it can  be allowed to invoke  the  Judicial  Review jurisdiction. Reliance was placed on this court’s decision in Republic vs County Government of Nairobi & another Exparte Isfandiar Sohaili (supra) where the court invoked Sections 9(2), (3) and 4 of the Fair Administrative Action Act and declined to grant the Judicial Review orders sought.

101. On the  part of the  exparte applicant, it  was  submitted  and  averred that the Liaison Committees established under the  Physical Planning  Act have  no jurisdiction  to adjudicate over a matter  challenging the  1st  respondent’s  actions nor  to issue  the reliefs  in the nature of  Judicial Review.

102. Further, it  was  submitted by the exparte applicant that there were special circumstances  to warrant  this court  hear and determine  these proceedings following  the  brazen  threat  by the 2nd  respondent  to forcefully  remove  the clock by 26th August  2016  and  that had  this court  not intervened, the  2nd  respondent  could have  destroyed the  property  where substantial  funds had been  spent   hence the court has jurisdiction to hear and  determine the matter herein  on its merits.

103. In deciding whether there was an alternative remedy  or internal  review or appeal  mechanism which  the applicant ought to  have exhausted first before invoking the Judicial Review  jurisdiction,  the court  must  first examine  the  nature of the complaint.

104. The applicant’s complaint  is brought  under the provisions of Section  7,8 and 9  of the Fair  Administrative  Action Act, 2015   and  Order  53  Rule  3  of the Civil procedure  Rules  2010.

105. The applicant claims that it lawfully contracted with the  interested party for the provision of outdoor advertising   services   through  the use of  the  Country clock located  upon the roundabout  of Hospital Road, Mara  Road and  Elgon Road  in the Upper Hill  area, Nairobi.

106. That the interested party obtained necessary approvals to construct  the  Clock  from the 3rd respondent  and  also obtained  approvals  to beautify the said  roundabout from the same  3rd respondent, only to learn that  the 1st respondent  and  3rd  respondent  subsequently granted  approval to the 2nd respondent  to carry out similar  activities on the same  roundabout.

107. It is not in dispute  that the approval  granted to the applicant  is dated 16th June 2016 whereas the one given to the 2nd respondent  is dated  20th June 2016 four days later.  The approvals were also  given by  different  departments  within the  3rd  respondent  City County Government.

108. Whereas  the applicant’s  approval  came from the Department of Environment  and  Energy   and Water Sector,  the one given to  the  2nd respondent came from the  Department of  Urban Planning.

109. Although the  3rd respondent  claims  that the  approval given  to the applicant is irregular and fraudulent, that allegation has not been proved as  there were no particulars of fraud or irregularity stated  and  neither  did the  two signatories  to the  two approvals swear any affidavits to demonstrate that the approvals as given to the applicant were fraudulent.  The Chief  Officer, Urban  Planning never  swore any  affidavit  to disown the approval given by Engineer Christine Ogut  of Environment, Energy  and  Water  Sector  and  vice versa.  It follows that as no fraud was proved, and as there was no denial that both departments exist within the 3rd respondent, both approvals came from the City County of Nairobi. As to which approval would be valid, and not necessarily fraudulent,  in my view, is a dispute that can only be resolved by a relevant body mandated to deal with such disputes.

110. The 2nd respondent, before getting approval from the Nairobi City County Government ,  obtained  approval from the 1st  respondent  who were  constructing the road  in question  and the  1st  respondents  claims that the   road had  not been  handed  over to the 3rd respondent hence the 1st respondent was in order to grant  the  approval  on 7th June  2016 subject to the 2nd respondent complying  with certain  conditions  among them, obtaining necessary  permits from relevant  authorities before commencement of works.

111. On 20th June 2016, the City County of Nairobi, Urban Planning Department granted the 2nd respondent approval to landscaping scheme of the same roundabout.

112. The question is, where would a party aggrieved by the decisions of the 1st and 3rd respondents seek redress from?

113. The complaint against the 1st respondent is that it  had no  power to  grant  any  authority/approval by dint  of the judgment  of Mumbi J in Petition 472 of 2014 which declared the functions  of the  1st respondent  and  those of the  3rd respondent  with regard to the  management  of national  trunk  roads  and  county roads  to be distinct.  The court in that case also clarified on the function or control of outdoor advertising to belong solely to the 3rd respondent.

114. The  1st and  3rd respondents  agree with  the  applicant on this  aspect but  with a rider  that the judgment  only affects  those  counties that had  appealed to the Senate  for  transfer  of the functions  and  that in this case, there was no evidence that Nairobi City County is one of the  29 counties which   were affected  by the decision  in Petition No. 472 of  2014.  Further, that in any case, the subject road which was still under construction by Kenya Urban Roads Authority had not been handed over to the 3rd respondent.

115. The exparte applicant   avers that this court in granting leave and stay must have considered the exceptional circumstances prevailing namely, the brazen threat to “forcefully remove” the clock from the roundabout.

116. However, this court wishes to remind the parties that the judge’s task on the exparte application for leave is to do no more than to decide whether there is an arguable prima facie case for consideration at the substantive stage if leave is granted  and with regard to stay, whether the court was of the view that unless stay is granted, the intended application if successful would be rendered nugatory and therefore the applicant would at the end of it all be rendered a pious explorer in the judicial process.

117. It is not for the court to  determine any issues finally  in favour of the applicant at the exparte stage for leave and stay.(see Exparte Worth[1985] STC 564 cited in Regina v Criminal Injuries Compensation Board Exparte A(AP) decided by the House of Lords HL [1998-1999]

118. In this case, the court on receipt of the exparte chamber summons under certificate of urgency, certified the matter as urgent and upon being satisfied that prima facie, the applicant had established that it had a prima facie case, proceeded to grant leave and such leave to operate as stay.

119. The court did not consider the “exceptional circumstances” contemplated in section 9 of the Fair Administrative Action Act, 2015.

120. What the applicant needed to show at the leave stage was to demonstrate that on the material placed before the court, its case was not frivolous or vexatious but that it had a case and needed an opportunity to ventilate, seeking for protection against abuse of power or legal process. Section 9 of the Fair Administrative Action Act, 2015 stipulates that: 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.

121. The section does not mandate the court to exclude all applications that it deems should have been considered in a different forum at the leave stage especially where the matter is considered exparte. Furthermore, in most instances, it is only after hearing all the parties to the review application that the court would be in a position to fully appreciate whether the dispute ought to have been determined elsewhere or before this court. The section further provides at subsections 3 and 4 that:

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 applicant shall first exhaust such remedy before instituting proceedings under sub-section (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.

122. The above section makes it clear that in‘exceptional circumstances’ andon application, the court can exempt the applicant from exhausting alternative remedies or internal review mechanisms.

123. In this case, the applicant claimed that there were exceptional circumstances warranting this court to hear this matter only after the respondents raised the issue of the matter falling within the jurisdiction of the Liaison Committee under the Physical Planning Act.

124. The applicant herein never included in its application for leave or in the substantive notice of motion, a prayer seeking for exemption from exhaustion of the internal review/appeal mechanisms. No such internal review or appeal mechanisms were disclosed to this court by the applicant to enable the court consider whether it should exempt the applicant from resorting to the alternative dispute resolution mechanisms, and no order on exemption from resort to alternative remedies on account of exceptional circumstances was ever made by this court in favour of the exparte applicant.

125. Part III of the Physical Planning Act, Cap 286 Laws of Kenya   provides for the establishment and composition of Physical Planning Liaison Committees. Under Section 7, Physical Planning Liaison Committees are established and the composition is as per Section 8 of the Act.  The Director General of the 1st respondent Kenya Urban Roads Authority is a member of the Liaison Committee.

126. In Section 8(2) of the  Act, the Nairobi Physical Planning Liaison Committee is established and consists of members among  them, the Director of  City Planning and Architecture  as Secretary; Director General of Kenya Urban Roads Authority, Town Clerk of the Nairobi City Council(as it then was).  The functions of National Liaison Committee are, inter alia; to hear and determine appeals lodged by a person or local authority aggrieved by the decision of any other Liaison Committee.  The functions of other Liaison Committees include:

a) To inquire into and determine complaints made against the Director in the exercise of his functions under the Act or Local Authorities in the exercise of their functions under the Act.

b) Enquire into and determine conflicting claims made in respect of application for development permission.

c) To hear appeals lodged by persons aggrieved by decisions made by the Director or Local Authorities under this Act.

127. The Liaison Committees are mandated to meet at least once every month. Any person aggrieved by a decision of the National Liaison Committee under the Section may appeal to the High Court against such decisions in accordance with the rules of procedure for the time being applicable to the High Court.

128. Section 8 of the Act  stipulates the functions of the Liaison Committees which include:

“To inquire into and determine  complaints  made against  the Director or Local Authorities in the exercise of their  functions under the Act.

129. It is  not  disputed that the  3rd respondent  has a constitutional mandate as stipulated in Petition No. 472/2016, to manage, develop, rehabilitate and  maintain  all public  roads, save  the national trunk roads and to control outdoor  advertising  on road reserves.”

13o. It is also not in dispute that  the Physical Planning Act stipulates that any decision made by the Local Authority (County Government) is appealable to the relevant Liaison Committee and the decision of the Liaison Committee is appealable to the National Liaison Committee.  The decision of the National Liaison Committee  is appealable  as of right  to  the High Court or to the Environment  and  Land Court, as the case may be, depending on the nature of the dispute, in  view of the stipulations in Articles 162(2)(b), 165(5), (b)  of the Constitution  and Section 13(1) and (7) of the Environment  and  Land Court Act, among other statutes conferring jurisdiction to the court, noting that the dispute herein relates to the right to the use for advertising of the space of land on the road and therefore it is unlikely that the appeal would lie to the High Court.

131. In this  case, the  3rd respondent  made 2  decisions to approve  the applications by both the applicant and 2nd respondent to undertake  beautification and  landscaping  on the roundabout  of Hospital Road, Mara Road and  Elgon Road.  The 2nd respondent also obtained permission from Kenya Urban Roads Authority who were said to be in the process of constructing the subject road which though a county road, had not been completed and handed over to the 3rd respondent.  The two approvals from different departments granted to different persons or parties for the same task are no doubt conflicting decisions anticipated to generate a dispute.

132. Therefore, in my humble view, any person aggrieved by the decision of the 3rd respondent would be expected to file an appeal to the relevant Liaison Committee for resolution of the dispute.  The 1st  respondent being a  member of the Liaison Committee would be a participant and therefore  all the issues which have been raised before this court would be resolved by  the Liaison Committee with room for an appeal  to the National Liaison Committee  and to  the Environment and  Land  Court.

133. This court takes cognizance of the fact that the Physical Planning Act which is an old statute has not been reviewed to accord with the constitutional dictates and therefore must read it with the necessary modifications as stipulated in Part 2 sections 7 of the transitional provisions of the Constitution.

134. Albeit the applicant claims that the Liaison Committee has no jurisdiction to grant the orders of judicial review sought herein and  which I agree, nonetheless, section 9 of the Fair administrative Action  does not anticipate a situation where the alternative remedy or forum for ventilation of the dispute must be a forum that has jurisdiction to grant judicial review remedies stipulated under the Act. The Act contemplates alternative fora and or remedies for dispute resolution before reverting to the Court.

135. Nothing would have prevented the exparte applicant from filing the dispute over the conflicting approvals by the two entities, before the Liaison Committee and seeking for an injunction before a court of competent jurisdiction to restrain or prohibit  the  private  party who is  the  2nd  respondent  herein from  actualizing  its threat  to forcefully remove and or destroy the Clock from the roundabout, pending the  hearing  and  determination  of  proceedings  before the Liaison Committee, since significant  amount of  money  had been  expended  in the installation  and  maintainance  of the said  Clock  and the roundabout

136. It is now settled law and judicial opinion that where the Constitution or any written law provides a procedure for settlement of disputes, that procedure shall be followed before resort to the High Court or any other procedure provided by law.  That is the spirit and letter of Articles 50(1) and 159(2) of the Constitution which stipulates that :

““50(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent or impartial tribunal or body.”

137. And Article 159(2) states –

“159(1) …….....

(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles –

(a) justice shall be done to all, irrespective of status;

(b) justice shall not be delayed;

(c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);

(d) justice shall be administered without undue regard to procedural technicalities; and

(e) the purpose and principles of this Constitution shall be protected and promoted.”

138. In Samson Chembe Vuko V Nelson Kilumo & 2 Others [2016] e KLR, the Court of Appeal citing with approval several  other decisions among them:

i. Speaker  of the National Assembly vs Karume [2008] 1 KLR  425  where the  Court of Appeal  held inter alia:

“……..where  there is  a clear procedure  for the redress  of any particular  grievances s  prescribe  by the Constitution  or the Act  of Parliament, that  procedure  should be strictly  followed….”

ii. Mutanga Tea & Coffee Company Ltd Vs Shikara  Limited  & Another [2015] e KLR  the Court of Appeal reiterated the  foregoing 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 that:

“[W] here 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  Wa Nyoike  & 4  Others  [2008] e KLR (ER) 296)

“It is readily apparent that in those cases the Court was speaking to 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 resort to that mechanism first before purporting to invoke the inherent jurisdiction of the High Court. (Emphasis added).

The basis for that view is first that Article 159 (2) (c) of the Constitution has expressly recognized alternative 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 reading 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.(Emphasis added).

Secondly, such alternative dispute resolution mechanisms normally have the 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 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……”(emphasis added).

139. From  the above   decisions  and others, it is clear  that as  recent  as 27th day of May  2016  when the Court of Appeal rendered  the decision in Samson  Chembe   Vuko V Nelson  Kilumo (supra) case, parties  ought not to invoke  the jurisdiction  of the High Court in Judicial Review  matters  where there is an alternative  dispute  resolution mechanism  established by an Act of Parliament and which is efficacious. And where there is need to depart from the established procedure, then a p[arty must apply to the High Court for exemption, citing and proving the exceptional circumstances that exist to enable the court consider and exercise its discretion to exempt the party from resorting to alternative remedies  or forum for resolution of the particular dispute.

140. In the circumstances of this case, the Physical Planning Act establishes an elaborate mechanism for resolving any disputes/complaints that may arise from exercise of powers donated by that Act to the 1st and 3rd respondents or any other public authority created under the Act. To this end, Section 7 of the Act establishes Physical planning Liaison Committees whose functions include:-

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

141. Section 10(2) (a) and (e) of the Act stipulates that (2) The functions of other liaison committees shall be—(a) to inquire into and determine complaints made against the Director in the exercise of his functions under this Act or local authorities in the exercise of his functions under this Act or local authorities in the exercise of their functions under this Act; (e) to hear appeals lodged by persons aggrieved by decisions made by the Director or local authorities under this Act.

142. In terms of administrative action, Article 47 as read with Article 165(6) of the Constitution donates to the High Court supervisory jurisdiction over subordinate courts, tribunal and bodies.

143. Pursuant to Article 47 of the Constitution, Parliament enacted the Fair Administrative Action Act, 2015. Section 9(2), (3) and (4) thereof provides:

(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 applicant shall first exhaust such remedy before instituting proceedings under sub-section (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.

144. It is however my view that the onus is upon the applicant to satisfy the Court that he ought to be exempted from resorting to the available remedies. In this case the applicant has not shown why the Court ought to exempt it and the interested party from the dispute resolution mechanism provided under the Physical Planning Act. This position is not novel. In Republic vs. National Environment Management Authority [2011] eKLR, it was held that where there is an alternative remedy and especially where Parliament has provided a statutory appeal procedure, it is only in exceptional circumstances that an order for judicial review would be granted.

145. The Court of Appeal had this to say at page 15 and 16 of its judgment:

“ The principle running through these cases is 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 that 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 and ask itself what, in the context of the statutory powers, was the real issue to be determined and whether the statutory appeal procedure was suitable to determine it. – see for example R v BIRMINGHAM CITY COUNCIL, ex parte FERRERO LTD case. The Learned judge, in our respectful view, considered these strictures and come to the conclusion that the Appellant had failed to demonstrate to her what exceptional circumstances existed in its case which would remove it from the appeal process set out in the statute with respect we agree with the judge.”

146. There is now a chain of authorities from the High Court as well as the Court of Appeal that where a statute has provided a remedy to a party, this Court must exercise restraint and first give an opportunity to the relevant bodies or State organs to deal with the dispute as provided in the relevant statutes. This principle was well articulated by the Court of Appeal in Speaker of National Assembly vs. Njenga Karume (supra) as borrowed from other earlier decisions. In Re Preston [1985] AC 835 at  825D Lord Scarmanwas of the view that a remedy of judicial review should not be made available where an alternative remedy existed and should only be made as a last resort.

147. I further associate myself with the position held by the Court of Appeal in its various decisions and as adopted by the High Court in decisions such as Revital Healthcare (Epz) Limited & another v Ministry of Health & 5 others [2015] eKLR where Emukule, J  at paragraph 10 cited with approval the case of Damian Belfonte v The Attorney General of Trinidad and Tobago C.A 84 of 2004 in which 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 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 a misuse, an abuse of the Court’s process.”

148. Therefore if there is a particular procedure provided under the Constitution or any written law which remedy is effective and applicable to the dispute before the Court, the judicial review remedies ought not to be resorted to as a first point of call. The Court ought to ensure that that dispute is resolved in accordance with the relevant statute.  This is the spirit and letter of section 9 of the Fair Administrative Action Act, 2015.

149. I also agree with the decision in Pasmore vs. Oswaldtwistle Urban District Council [1988] A C 887 that where an obligation is created by statute and a specific remedy is given by that statute, the person seeking the remedy is deprived of any other means of enforcement.

150. I further agree with Mwera, J (as he then was) in Safmarine Container N V of Antwerp vs. Kenya Ports Authority Mombasa  High Court  Civil Case  No. 263   of  2010  where it was held that it is not only the Constitution that can limit/confer jurisdiction of the court but that any other law may by express provision confer or limit that jurisdiction. In his decision the learned Judge relied on Article 159 of the Constitution. Clause (2)(c) of the said Article which  provides that in exercising judicial authority, the courts and tribunals shall be guided by the principle that alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted.

151. In other words, Courts and Tribunals cannot be said to be promoting alternative dispute resolution mechanisms when they readily entertain disputes which ought to be resolved in other legal fora.

152. Therefore, where there is an alternative remedy and procedure available for the resolution of the dispute, like in this case where the Liaison Committee exist to receive and consider the dispute between and among the parties hereto,  that remedy ought to be pursued and the procedure adhered to.

153. I further associate myself with Majanja J’s views in Dickson Mukwelukeine vs. Attorney General & 4 Others Nairobi High Court Petition No. 390 of 2012 that alternative dispute resolution processes are complementary to the judicial process and by virtue of Article 159(2)(c) of the Constitution of Kenya, 2010, the Court is obligated to promote these modes of alternative dispute resolution and that it is not inconsistent with Articles 22 and 23 to insist that statutory processes be followed particularly where such processes are for the specific purpose of realizing, promoting and protecting certain rights. Accordingly the Court is entitled to either stay the proceedings until such a time as the alternative remedy has been pursued or bring an end to the proceedings before the Court and leave the parties to pursue the alternative remedy.

154. Way back  before the promulgation of the Constitution, the Court of Appeal in Narok County Council vs. Trans Mara County Council & Another Civil Appeal No. 25 of 2000,expressed itself as follows, and it has persisted thus:

“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 matters 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 be done in the event of a disagreement...Where the 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 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 duty 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 do, 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”.

155. In the end, I am of the view and I hold that the Court’s jurisdiction under Article 165 can be limited and/or restricted by an Act of Parliament by donating jurisdiction to other bodies to resolve disputes which, nonetheless, the High Court has jurisdiction of last resort.

156. Having so found, the next question is whether the judgment of Mumbi Ngugi J in Petition No 472 of 2014 should be adopted by this court. It must however be understood that it is not this court that is set to implement the Judgment of Hon Mumbi Ngugi J. There are established mechanisms for enforcing court decisions. The Judgment of Mumbi Ngugi J was  cited before this court not for implementation or interpretation. That is not the role of this court to interpret that judgment since there is no dispute on whether or not the Constitution has provided separate and distinct roles for each of the two levels of governments, with some roles overlapping. In addition, that judgment is not properly placed before this court for implementation or enforcement purposes. That judgment needs no adoption by this court. What this court can do is to apply it if the court finds it relevant to the facts of this case not to be asked to adopt it as if the judgment was inchoate.

157. This court determines cases before it on the material evidence placed before it. It was for the parties to demonstrate that the Judgment of Mumbi Ngugi J had crystallized since there was a rider given in the said Judgment by Mumbi Ngugi J that the Judgment applied to the 29 County Governments that had appealed to the Senate for transfer of the functions from the National Government.

158. None of the parties to these proceedings adduced evidence as to whether Nairobi City County Government was one of the 29 County Governments that had appealed to the Senate for the transfer of functions. It was the duty of the applicant to avail such evidence or seek for production of such evidence by the adverse party. It never did so.  The burden of proof lies on he who alleges.(see sections 107 and 108 of the Evidence Act, CAP 80 laws of Kenya). However, that failure to adduce evidence on whether or not the 3rd respondent was one of the 29 County Governments that applied for transfer of functions in itself does not take away the distinct functions assigned to County Governments as stipulated in the Constitution and other implementing Statutes.

159. Furthermore, there was no evidence to counter the contentions by the 1st and 3rd respondents that the subject road was undergoing construction by the 1st respondent and that transfer could only be done to the Nairobi County Government, the 3rd respondent herein after completion; and that as matters stood now, the two bodies had joint control over the road and therefore approvals could be given by both entities until such transfer was effected.

160. On whether the 1st respondent had any power to grant an approval for the beautification and landscaping of the contested roundabout, the answer lies in whether or not the said road had been transferred to the County Government of Nairobi in accordance with the Judgment of Mumbi J in Petition No. 472 of 2014. In this case, there was no material to show that the Nairobi City County Government was one of the 29 County Governments that had appealed to the Senate to have the functions transferred to it. Accordingly, I find that where the road had not been transferred to the 3rd respondent and it was still under construction by the 1st respondent, and where there is a dispute as to which body should approve the activity intended to be done by the applicant, it would be appropriate for the parties to appear before the Liason Committee to resolve the conflict bearing in mind the judgment of Mumbi J, before resorting to court.

161. On the issue of whether the approval given by the 3rd respondent was irregular or fraudulent,  albeit the issue of fraud was a mere allegation which was not proved by the County Government, I have answered this question in issue No. 1above and held that it is upon the Liaison Committee to determine the validity of the or otherwise of that approval.

162. On whether the applicant is entitled to the orders sought, I find and hold that the applicant is not entitled to the orders sought at this stage as it did not demonstrate that it had exhausted the available alternative remedies under the Physical Planning Act Cap 286 Laws of Kenya before resorting to this court for judicial review.

163. On what order should this court make, I find and hold that the application for judicial review must fail and the same is hereby dismissed.

164. On who should bear costs of this application, I hold that each party shall bear their own costs of the application of the dispute which remains unresolved.

Dated, signed and delivered in open court at Nairobi this 20th day of November, 2017.

R.E.ABURILI

JUDGE

In the presence of:

Miss Kavagi  h/b for Mr Mbaluto for the Applicant

Miss Daido h/b for Mr Munene for the 1st Respondent

Mr Oyunge h/b for Miss Mwangi for the 2nd Respondent

N/A for Interested Party

N/A for 3rd Respondent