Republic v County Government of Mombasa; Outdoor Advertising Association of Kenya (Ex parte) (Judicial Review 63 of 2013) [2014] KEHC 5564 (KLR) (14 April 2014) (Judgment)
Republic v County Government of Mombasa
Ex-parte Outdoor Advertising Association of Kenya [2014] eKLR
Neutral citation:
[2014] KEHC 5564 (KLR)
Republic of Kenya
Judicial Review 63 of 2013
EM Muriithi, J
April 14, 2014
In The Matter Of An Application By Outdoor Advertising Association Of Kenya For Orders Of Certiorari And Prohibition
And In The Matter Of The Constitution Of Kenya, 2010, The County Government Act No. 17 Of 2012, And The Physical Planning Act, Cap. 286 Of The Laws Of Kenya And In The Matter Of Outdoor Advertising Association Of Kenya
Between
Republic
Applicant
and
County Government of Mombasa
Respondent
and
Outdoor Advertising Association of Kenya
Ex parte
Judgment
Introduction
1.On the 28th October 2013, the ex parte applicant association filed a chamber summonsfor leave to file judicial review proceeding for certiorari and prohibition and for anorder that the grant of leave do operate as a stay of decisions of respondent made on29th May 2013 and 8th October 2013 directing the pulling down and removal of alladvertising signages, structures and devices of its members erected on road reserveswithin the Respondent County. The court granted the ex parte applicant leave to file judicial review proceedings and further ordered that the grant of leave do operates as astay of the decisions. The applicant then filed a Notice of Motion on the same date the 28th October 2013.
2.By a letter dated 29th October 2013 the respondent required the respondent made ademand for the payment of a sum of Ksh.35,473,926.00 as outstanding arrears ofcontractual payments allegedly owing by Magnate Ventures Ltd., one of the membersof the applicant, and giving a 7-day notice for payment in default of which therespondent would remove or cause to be removed all advertisement displays by thesaid member. The letter also gave notice of its decision ‘not to grant or review anyadvertisement applications to facilitate necessary advertising reorganizations’ at theexpiry of the calendar year and required the member to remove all advertising devicesnot later than 31st December 2013.
3.Between the 2nd and 4th January 2014, several advertising devices of the members ofthe ex parte applicant were destroyed. The applicant contends that the respondent wasin contempt of court in its demand for the removal of the advertisement devices forfailure by Magnate Ventures to pay alleged arrears and the subsequent destruction ofthe devices for which the respondent denies responsibility. An application for thecommittal for contempt of court of two of the respondent’s officers was filed by theex parte applicant on the 7th January 2014 and argued before the hearing of the mainNotice of Motion herein and ruling thereon reserved. Because of the differentconsiderations of fact and principles in the contempt application and the Notice ofMotion for judicial review, the decisions in the two applications both though reservedwill for neatness be rendered separately. The ruling on the contempt application willbe rendered shortly with notice to the parties.
The Notice of Motion for Judicial Review
4.By the Notice of Motion dated the 28th October 2013 the ex parte applicant soughtorders as follows:
1.An order of certiorari be ad is hereby issued to remove into this court andquash the entire decisions by the respondent made on 29th May 2013 and 8thOctober 2013 directing the pulling down and removal of all erected advertising singages, structures and devices of members of the ex parteapplicant within Mombasa County Road Reserves.
2.An order of prohibition be and is hereby issued prohibiting the Respondentfrom pulling down and removing all erected advertising signages , structuresand devices of members of the ex parte applicant within Mombasa CountyRoad Reserves.
3.The costs of this application be paid by the Respondent.
5.The Notice of Motion was based on the grounds for relief set out in the statement andreiterated in the body of the Motion as follows:
1.The Ex-parte Applicant is an association of advertising companies.
2.Members of the Ex-parte Applicant have erected and maintained advertisingsignages, structures and devices within Mombasa County Road Reserves withthe approval of Kenya National Highways Authority, Ministry of Roads andthe permission of the Respondent’s predecessor, Municipal Council ofMombasa.
3.ON 29th May 2013 and 8th October 2013, the respondent directed the pullingdown and removal of all erected advertising signages, structures and deviceswithin Mombasa County Road Reserves.
4.The decisions are illegal and contravene statute, because the intention anddirection to pull down and remove the advertising signages, structures anddevices are not made in accordance with the procedure set out in Part V of thePhysical Planning Act, cap 286 of laws of Kenya.
5.The decisions contravene the Ex-parte applicant’s legitimate expectation theadvertisement signages, structures and devices erected and maintained by itsmembers with the respondent’s predecessor’s approval and authorization bythe National Government’s Departments shall not be interfered without thedue process of law.
6.The decisions are unreasonable and irrational, because they are not based onany reasons or grounds.
7.The decisions contravene the rules of Natural justice and the right to be heardbecause members of the Ex-parte Applicant have not been notified of anybreaches of the law nor have they been required to answer to any charges ofcontravention of the law if any, in so far as the advertising signages, structuresad devices are concerned.
6.In its reply, the respondent through an affidavit by its legal officer, Jackson N.Mwangi raises in sum the following grounds in opposition to the application:
1.Locus standi – that without a list of fully paid up members and their writtenexecuted authority or resolution of the members who have approvedapplications and licenses issued by the respondent for the year 2013, theapplicant has no authority to institute the present representative proceedings.
2.Abuse of process in view of previously instituted proceedings by M/SMagnate Ventures Ltd, which the respondent contended was suing in theseproceedings under the guise of the ex parte applicant, in which the saidcompany had obtained injunctive relief against the respondent over theadvertisement billboards.
3.The respondent’s predecessor breached Public Procurement and Disposal Actcap 412 in authorizing the advertisement and the present proceedings was anattempt to ratify illegality in the procurement authorizing advertisementbillboards.
4.Respondent’s constitutional (under Article 184 and 4th Schedule of theConstitution) and statutory duty or obligation for greater public safety for thebenefit of residents of Mombasa.
5.The respondent granted ex parte applicants members opportunity to be heardby invitation by the two notices to present grievances over a period of 4months.
6.Effluxion of time for the advertisement licences o the 31st December 2013.
Submissions
7.The counsel for the parties – Ms. Ng’ania for the applicant and Mr. Mogaka for therespondent – on the 19th February 2014 made oral submissions, the former with aid ofwritten submission dated the 18th February 2014, and judgment was reserved. Thecounsel for the ex parte applicant emphasized the breach of the rules of natural justiceand statutory procedure under section 38 of the Physical Planning Act andcontravention of the ex parte applicant’s legitimate expectation and fair administrativeaction in failing to grant the ex parte applicant’s members an opportunity to be heardbefore the decision to remove the advertisement was reached. Counsel for therespondents summed up the respondents’ opposition to the application on theprincipal grounds of locus standi of the applicant and abuse of court process; want ofcompliance in procurement laws in the approvals for the advertisements; and publicinterest in safety on the roads which is alleged to be affected by the bill boards.Below is a verbatim record of the submissions.Miss Ng’ania for the ex parte applicantI have filed ex pare applicant's submissions dated 18.2.2014 together withauthorities. Notice of Motion of 28.10.2013. Judicial review orders ofcertiorari and prohibition.
(1)Locus standiThe applicants are a society registered under a society act certificateof registration is annexed to affidavit of Peter Odoyo P.O.1 I refer toAdopt A Light v. Municipal Council of Mombasa No. 6 on the list. Ialso refer to Article 22, 23 and 260 defies a person including acompany or body of persons incorporated or unincorporated. TheAssociation is of incorporated members. There is no need of a list ofpaid up members and with authority to file the suit.
(2)Scope of Judicial ReviewEx parte applicant has not challenged the decision's merits. Wechallenge the process of arriving at the decision. Annextures at p. 14 –P.O.3 to p.37 P.O.5. They exhibit fact to compliance with therequirements of development approvals and annual advertisinglicenses.The respondent has sought to challenge the approvals on the merits.The JR scope does not go into the merits. I refer to Shaban MohamedHassan No. 13 of my list at p. 171 of the application. JR only appliesto the decision making process not the decision.We challenge the orders of the respondents of the 29.5.2013 and8.10.2013 at p. 39 of the affidavit.
(3)Illegality of decisionMembers of ex parte applicant have development approvals under s.30of the Physical Planning Act and are in the nature of a building.Development approval is one time approval not renewable at the endof each year. The notices challenged require removal of advertisingdevices under the Physical Planning Act. The notice of 29.5.2013gives a 7 day notice for appliance.We contend that an enforcement notice can only be given under section38 of the Cap. 286. The Respondent is not entitled to issue such noticeas the structures had development approvals.Development approvals creates a contract which cannot be withdrawnsuo motu I refer to A One Outdoor Advertising (2006) eKLR at p. 35enforcement notice was illegal of the binding contract and itcontradicts statute. I refer to Taib decision No. 8 on the list ofauthorities, on compliance of statute. I also refer to Kenya ForestAssociation at p. 63 (authority No. 9 on the list).
(4)Legitimate ExpectationAdvertising has existed for long period. There were several approvals andlicenses. The illegal notices of removal contravene the legitimate expectationthat the structure would not be removed save in accordance with the law. Theapplicants will suffer prejudice if the decisions are not granted.I refer To HWR Wade at p. 63 of the application. Legitimate expectation hasbeen recognized in Kenya Law in Keroche v. KRA authority No. 10 at p. 104exception only where there is sufficient reason from departure.
(5)Breach of Nature Justice Right to be heard is a constitutional right in Article 47 and 50 and section 38-40 of the Physical Planning act. The right of hearing is immutable to the exparte applicant. HWR Wade at p. 55.I refer to Taib v. Minister for Local Government explaining rules of naturaljustice. The decision of the respondent breached the rules of natural justice
(6)UnreasonablenessThe respondent claims public interest of preventing proliferation ofadvertisement, securing motorists, visibility and interference of pedestrianmovement and city's appearance. Where are the complaints leading to thisconclusion and how is the complaint reconcilable with the applicant's rightswhen they have paid for fees and obtained approval. Public interest shouldnot be used to contradict written laws. The laws and rules should be compliedwith. I refer R. v. Registrar of Titles ex parte Bedan Gichuru on public interest. The court at p. 135-7 Balancing of interests where interests areprotected by the law. Public interest taken care of by enforcing the law. Therespondents cannot support their decisions by public interests. The decisionswere irrational and cannot be supported by public interest.The respondent’s response is on the validity of development approvals. Thedecisions were reached in contravention of section 38 of the Act and they aresubject to judicial review orders sought. I pray for the notice of motion to beallowed as prayed.Mr. Mogaka for the RespondentMotion is opposed.The motion is supported by the statement and the verifyingaffidavit. The replying affidavit of Mr. Mwangi. Other affidavits are on the contempt application. The replying affidavit of Jackson Mwangi on 15.1.2014.Overriding reasonsVerifying Affidavit of Peter Odoyo. This JR by Magnate Venture Ltd pretendto be bringing it from the Outdoor Adverting Association. Magnate Venturesis abusing the process of the court. I refer to the verifying affidavit. That theapplicants have paid license fees. There is no single evidence of paymentother than Magnate Ventures. See P.O.7, at p. 32-35 relate to MagnateVenture. The same with p. 36, 37.There is no correct averment that the applicants have paid when it is onlyMagnate Venture. This is only Magnate Venture. It is an abuse of the courtprocess because there are pending before the court relating to the same billboards. I refer to exhibits in Mwangi's affidavit JM1 HCCC 33 of 2012seeking to restrain the Municipal Council from allowing other persons fromputting up Billboards and the council form removing the Billboards. It is notdisputed that the case exists. There is a case dealing with Billboards. Theycould have gone there and obtained an injunction. There is also case No.HCCC 284 of 2008 which is still pending. They could have amended the caseand proceeded in the older suit. This suit seeks the same orders as sought inthis case. There is no dispute that this case is pending.Plaintiffs in this case 284 of 2007 are the same parties that are mentioned inthis JR. Does the principle of abuse of court apply to JR. Can a party filesuits in the various divisions of the court. This could have sought proceedingsin 284 of 2008. They could have taken contempt proceedings in the casewhere there are previous orders. The JR proceedings should be dismissed.The doctrine of sub-judice and res judicata applies to all litigation. MagnateVentures is the same parties in the suits. There are no other members indicting that they are affected. There is a question of locus standi. The courtshould protect its dignity. The respondent is a public entity. There can onlybe production of a receipt. Even under the Rating Act, person have to produceclearance certificate that it is supported by receipts. There is an allegationthat the parties have been paying promptly but no exhibits of receipts byMagnate and all other receipts. A payment entitles a party to carry outbusiness. A payment would permit outdoor advertising to have bill boards butno payment has been shown.Decision being challengedThe question of the decision having been given contrary to rules of indirectjustice. Verifying affidavit at p. 37 and 38. The decision does not say that ifthe billboards are not removed we shall remove them. It requires the personsto remove them and invite the parties to come to the respondent. It cannot besaid to be unreasonable or without hearing. The applicants were invited to goto the county for the address of any grievances on a case by case basis. Thereis no evidence that any member of the applicant went to the respondent. Theydid not go. The respondents state that they refused to come, and it gave afurther grace period for 4 months until October 8, 2013 when they issued afurther notice. They did not come to court or go to the respondents. Norepresentation was made. They are acting within the law in good faith by therespondent in giving a grace period of 120 days. 8.10.2013 at p. 39 is afurther notice to the one of 29.5.2013. It is not unreasonable.Cap 286 Physical PlanningAdvertisement is defined in the Act. The Bill Boards are included. The issuesof advertisement has now shifted by the Constitution to County Governmentschedule 4. In issuing the notices the county government acts in statutory and onstituted obligations. They were discharging their duties.Can a court prohibit a public body from discharging its constitutionalmandate unless it is shown it is being done unreasonably, when the mandate iswithin the law. The decision of the respondent is that Bill Boards are interfering. Planning is a continuous exercise. Planning changes withinsituation. The legitimate expectation decision should be dealt with on a caseby case basis. The parties in this case were given time to air their grievancesfor a period of 120 days.It would be unreasonable if the county government if it pull down withoutnotice. The applicant refused to go to the county.Section 38 of Cap. 286The provisions of 38 are not applicable. The respondent is exercising powersto plan the town. Certain buildings are condemned out of age and arerequired to be removed due to expansion of facilities in public interest.Certain individuals are affected and they are either compensated in case ofland. In this case, they were invited and they did not state that they attendedand found that nothing was forthcoming. They refused to go. Legitimateexpectation not breached.There is no single permit indicated in the applicant's case by Magnate Ventureor members of the Applicant. The respondents have exhibited the kind ofapproval form which shows that normal format of the approval and this hasnot been challenged. We have shown the form and it has not been challenged.The submission that approval is given once and not required to renewannually is not correct. The payment of trading licenses are paid annually. Itis not correct that it is a one-off. It is paid for annually. The applicationreceipts are for Bill Boards at p. 35. The receipt is for the Bill Boards and it ispaid for regularly and the submission is not correct.Billboards on public roads becomes a licensee. There is no certificate oflease. There is no certificate of lease for a term. The form in the replyingaffidavit gives power to municipal council to alter the circumstances. Clause8 of Notice 8 (iii) – allows renewal of permits.The contract between the parties states that the council has power to refuse torenew. Courts cannot rewrite the contract. Enforcement of contract is not the subject of Judicial Review. The By-Laws are set out pp. 9-12 of affidavit ofMwangi. At p. 11 rule 6 - every permit expires on 31st December of each year.No license goes beyond 31st December. Renewal is contractual. There is noallegation that the terms of contract were obtained by duress or misrepresentation.Rule 5 – payment of fees from time to time and the determined fees. OnlyMagnate Venture has demonstrated payment. Magnate Venture has orders inother suits. The association has not indicated any payment. The otheraffidavits cannot be relied on.Is there any merit in the challenge where parties were invited to go to therespondent. The applicants were given notice to present their grievances.Road reserves within the county is public land and public land held upon trustby county government or Municipal council. It cannot be leased out. Theprocedure for licensing is in the Local Government Act coming into force in1963. The Public Procurement Act No. 3 of 2005 coming into force in 2006.Physical Planning Act came into force in 1998. Public Land must be dealtwith in accordance with public land. In case of conflict, the publicProcurement Act prevails by reason of section 5 of that Act. All land disposalmust be by Procurement Act.There is no dispute that the case before the court applies the Procurement Act.It is not going to the merit of the decision. Courts cannot ignore provisions ofthe law. Section 27 of the Act requires everybody to comply with the Act. Ifthe Local Authority is in breach of the statute. A court of law cannot sanctionan irregularity. The Physical Planning Act is subject to the Procurement Act.The applicant cannot rely on the Physical Planning Act without applyingsection 5 of the Procurement Act. The Constitution also requires publicprocurement to follow the law.Judicial review orders. Overriding interests. In the absence of payment bythe others and Magnate abusing process of court and permits are renewable annually, the respondent had a right to require the removal of the devicesacting within the law.Money expected in putting up bill board and no material has been placedbefore the court through the verifying affidavit. Counsel should have availedinformation on costs. There is no material before the court.Permanency of structuresNo demonstration that structures are permanent. No affidavit evidenceindicating the permanencyBalance of interestsThe county government is a government for the people by the people and itrepresents the people of Mombasa. The complainants are the people throughthe government. The interests of the applicants are not permanent beingrenewable annually and subject to public interests.The decision in case of Outdoor Advertising - the decision was to take effectimmediately and no opportunity was granted to applicants to giverepresentation. The sections of the Physical Planning Act are not applicable.In this case the applicants refused to be heard within the 120 days. The Respondent cannot force the applicants to go to them to present theirgrievance. They are not entitled to complain that they were not heard andthey are not entitled to judicial review orders. I refer to Article 227 of theConstitution.Miss Ngaira in reply(1) Outdoor Association – the ratio in the case is that the procedure wasnot followed. It does not matter whether 7 days were given. The decision hadalready been made. Section 38 and 40 of the Physical Planning applies. Theprocedure to follow is in the Act.(2) Public Procurement Act – A party can benefit from its own illegality.The Notices do not refer that refer to any procurement issues only visibilityJUDICIAL REVIEW NO. 63 OF 201312 and interference.(3) Magnate Ventures are only a member. It does not matter that the suit isbrought by Outdoor Advertising Association but receipts appeared onlyMagnate.(4) Respondents cannot escape through the arguments because of the scopeof the judicial Review to deal with process rather than merit.(5) Certificate on p. 35 originates from the respondents and it is sent to oneof the members of the applicants, Magnate.(6) Constitutional mandate – they were obliged to follow the law inreacting to decisions. They are required to follow the Physical Planning Act –in giving effect to the Constitution.(7) Notices of 29.5.2013 and Notice of 8.10.2013. They had already madethe decision in requiring the applicants to come to him if they are aggrieved.In fact it should have been given by the Liaison Committee under the PhysicalPlanning Act. I pray that the Notice of Motion be allowed.
Issues for Determination
8.In considering whether the judicial review orders of certiorari and prohibition will beordered in the circumstances of the case, the following issues arise for determination:
1.Whether the ex-applicant has locus standi and whether the proceedings werean abuse of the court process.
2.Whether the decisions were made in contravention of the rules of naturaljustice and the ex parte applicant’s legitimate expectation.
Determination
Locus standi and abuse of process
9.On locus standi, as a constitutional principle of public law and for promotion accessto justice, the law makes generous provisions on standing over and above sufficientpersonal interest in the interest of enforcement of public law duties. See articles 22and 258 of the Constitution. The constitution recognizes the right of an association tolitigate questions of fundamental human rights and interpretation of the constitution on behalf of its members. It should not matter that such questions of fundamentalrights or of interpretation of the constitution arise in judicial review proceedings. Inthese proceedings, the issue of the ex parte applicant’s constitutional right to fairadministrative action is at the centre of its claim on legitimate expectation and right ofbeing heard before the impugned decisions were taken.
10.As Lord Denning in R. v. Greater London Council ex parte Blackburn (1976)3 ALL ER 184 stated:“I regard it matter of high constitutional principle that if there is a goodground for supposing that Government Department or public authority istransgressing the law, or is about to transgress it, in a way that offends orinjures thousands of her majesty’s subjects, then any one of those offended orinjured can draw it to the attention of the courts of law and seek to have thelaw enforced, and the courts in their discretion can grant whatever remedy isappropriate.”
11.In adopting the liberalized stance with regard to locus standi in the Court ofAppeal in Adopt-A-Light Ltd. v. The Municipal Council of Mombasa Civil AppealNo. 47 of 2007 rejected a contention that different considerations apply to judicialreview application as opposed to constitutional matters, and said:“Counsel for the appellant sought to distinguish this authority (Rushin andAnor. v. Minister for Finance and Anor. 2001 EA 253) on the basis that itwas a constitutional matter as opposed to judicial review application herein.To our mind, much as this was a judicial review application the holding aboveequally applies here, What the 3rd respondent was engaged in was publicinterest litigation. It came to court in its capacity as stakeholder in theadvertising industry as well as a rate payer. The 1st respondent wasaccountable to 3rd and any other rate payers on how revenue is collected andutilized and how services and goods are procured by the 1st respondent. Onthe whole, we are in agreement with the learned judge that the 3rd respondenthad the necessary locus standi to sue on account of either as a person aggrieved, sufficient interest or even as a public spirited person in vindicationof the law.”I take the view that requiring the ex parte applicant to produce list of fully paid upmembers who have had approvals, with receipts of payment for licenses, granted bythe respondent is to unduly restrict the right of the association’s members to approachthe court to challenge the decision of the local authority or county government whichis expressed to affect “all Advertisers/Advertising Agents who may have erected orcaused to have erected/put in place any Advertising Device(s) within our City’s roadreserves, dual carriageway aisles and/or at major highway/roads intersections,...”Accordingly, I reject the objection as to locus standi of the ex parte applicant to bringthe suit on behalf its members, two of whom have attached relevant documents in theverifying affidavit in support of the judicial review proceedings.
Abuse of process of the court
12.I have perused the orders in the two previous decisions relied on by therespondent as a basis for the abuse of process charge. Although the applicant’smember M/S Magnate Ventures Limited is a party in both the suits and the samerelated to billboards, the claims in the two suits were different from the public lawaspect of the present proceedings in that:
1.Suit no. HCCC 284 of 2008 is shown in the order of 13th October 2008attached to the replying affidavit of Jackson Mwangi as a suit by MagnateVentures and two other advertisers and the respondent Association forinjunction against the Municipal Council of Mombasa, the respondent’spredecessor, against removing or destroying the plaintiffs billboardsadvertising structures and media and for account of all sums paid by theplaintiffs to the defendant for the billboards etc erected in the municipalCouncil of Mombasa.
2.Suit no. HCCC 33 of 2012 is shown in the order of 18th January 2012 as a suitby Magnate Ventures Ltd against an advertising company and the MunicipalCouncil of Mombasa to prevent the putting up of billboards in close proximityto the plaintiff’s billboards so as result in blockage of its billboards.
3.The notices challenged in the present suit affected all advertisers andadvertising agents who may have erected advertisement signages or devices,and the challenge is on the legality of the decision of the respondent to removethe billboards on the grounds of “proliferation of several AdvertisingDevices/Systems even obscuring visibility to motorists, pedestrian movementsand the resultant negative impact they have had on our City’s appearance”.The claim challenging the decisions to remove the advertisement signages by thenotice of 29th May 2013 and 8th October 2013 is clearly in the realm of public lawand cannot properly be merged in the private law claims for injunction in the twosuits.
Whether respondent’s decisions contravened the ex parte applicant’slegitimate expectation and right to be heard.
13.The notices the subject of these proceedings were issued in the followingterms:The notice of 29th May 2013 provided:“county Government Of Mombasapublic Noticeremoval And Re-organization Of Advertisement Signages Structures/devices Within Mombasa County Road ReservesThe County Government of Mombasa wishes to notify all Advertisers/AdvertisingAgents who may have erected or caused to have erected/put in place any AdvertisingDevice(s) within our City’s road reserves, dual carriageway aisles and/or at majorhighway/roads intersections, that in view of the proliferation of several AdvertisingDevices/Systems even obscuring visibility to motorists, pedestrian movements and theresultant negative impact they have had on our City’s appearance, the CountyGovernment of Mombasa, in accordance with Building By-laws 231, 232, 233, 234,etc and the Physical Planning Act, therefore, shall pull down within seven days fromthe date of this notice, at the Advertisers/Advertising Agents cost and consequences, all such signages in such situations with a view to rectifying any contributors towardsthis situation.Any person aggrieved by this decision is advised to call in at the Mombasa CountyOffices with copies of Year 2012 and 2013 Advertisement permits and Receiptswhere their grievances shall be looked into on a case by case basis.Muzne Abdulatiff (Mrs)Interim County SecretaryDated 29th May 2013”The notice of 8th October 2013 provided:“County Government Of Mombasapublic Notice (final Notice)removal And Re-organization Of Advertisement Signagesstructures/devices Within Mombasa County Road ReservesFurther to our notice which appeared on the Daily Nation on Wednesday 29th May2013, we hereby give a FINAL NOTICE to all Advertisers/Advertising Agents whomay have erected or cause to have erected /put in place any advertising device(s)within our County’s roads reserves, dual carriageway aisles and or at major highwayroads intersections that in accordance with building by law 231 - 234 etc and thePhysical Planning Act therefore, shall pull down and remove all erected advertisingdevices within SEVEN days from the date of this notice.At the expiry of this notice, the County Government of Mombasa shall pull down theabove mentioned outdoor advertising devices without any further references to theadvertisers, as to the cost and consequences arising thereof.Rose NgowaInterim County Secretary”
14.The ex parte applicant has attached the approvals of the Kenya NationalHighways Authority for 5years from 15th august 2013 for Magnate Ventures, theProvincial Roads Engineer Coast approving locations for Outlook Media billboards and 2013 payment receipts and clearance with respect to Accounts for 2012 forMagnate Ventures. Section 38 of the Physical Planning Act provides for theprocedure for enforcement of development permissions in these terms:“38. Enforcement notice
(1)When it comes to the notice of a local authority that the development ofland has been or is being carried out after the commencement of this Actwithout the required development permission having been obtained, or thatany of the conditions of a development permission granted under this Act hasnot been complied with, the local authority may serve an enforcement noticeon the owner, occupier or developer of the land.
(2)An enforcement notice shall specify the development alleged to have beencarried out without development permission, or the conditions of thedevelopment permission alleged to have been contravened and such measuresas may be required to be taken within the period specified in the notice torestore the land to its original condition before the development took place, orfor securing compliance with those conditions, as the case may be, and inparticular such enforcement notice may require the demolition or alteration ofany building or works or the discontinuance of any use of land or theconstruction of any building or the carrying out of any other activities.
(3)Unless an appeal has been lodged under subsection (4) an enforcementnotice shall take effect after the expiration of such period as may be specifiedin the notice.
(4)If a person on whom an enforcement notice has been served undersubsection (1) is aggrieved by the notice he may within the period specified inthe notice appeal to the relevant liaison committee under section 13.
(5)Any person who is aggrieved by a decision of the liaison committee mayappeal against such decision to the National Liaison Committee under section15.
(6)An appeal against a decision of the National Liaison Committee may bemade to the High Court in accordance with the rules of procedure for the timebeing applicable to the High Court.
(7)Any development affecting any land to which an enforcement notice relatesshall be discontinued and execution of the enforcement notice shall be stayedpending determination of an appeal made under subsection (4), (5) or (6).”
15.The two notices of 29th May 2013 and 8th October 2013 make reference to thePhysical Planning Act but no attempt is made to comply with provisions of the Act.The submission by counsel for the respondent that the Act is inapplicable in view ofthe provisions of the procurement act which overrides all other law is invalid becausethe procurement act was not cited as one of the enabling acts for the decisions of therespondent. Moreover, the respondent cannot unilaterally purport to canceldevelopment approvals on the grounds that they did not comply with the ProcurementAct. The decision must be taken in accordance with the rules of natural justice givingthe person affected an opportunity to be heard on question of the compliance with theprovisions of the Procurement Act and other relevant matters. In addition the twonotices communicated a ready-made decision to remove the billboards which wasmade without hearing any representations that the affected persons may have had, adefect that the purported 4month opportunity to be heard allegedly granted after thefact did not cure. To be sure the notice period given in the notices was seven days forany aggrieved persons to attend the respondent for a consideration their cases. Thedecision to remove the billboards had already been made before the invitation to go tothe respondent when their ‘grievances shall be looked into on a case by case basis.’This is clearly ultra vires the provisions of the Physical Planning Act.
Findings
16.I have no hesitation in finding that the respondent’s decisions of the 29th May2013 and the 8th October 2013 were made in breach of the rules of natural justice forthe hearing of the affected persons and in contravention of their legitimate expectationcreated by the provisions of the Physical Planning Act and borne of the developmentapprovals given by the national Roads Authority and the respondent’s predecessor upon payment of the requisite licence fees. There can never be public interest inbreach of the law, and the decision of the respondent is indefensible on public interest because public interest must accord to the constitution and the law as the rule of law isone of the national values of the constitution under Article 10 of the Constitution.Moreover, the defence of public interest ought to have been considered in a forumwhere in accordance with the law, the ex parte applicant members were granted anopportunity to be heard. There cannot be public interest consistently with the rule oflaw in not affording a hearing to a person likely to be affected by a judicial or quasijudicial decision.
17.The ex parte applicant is therefore entitled to an order of certiorari to quash thenotices of 29th May and 8th October 2013 notifying the ex parte applicant members ofpulling down and removal all erected advertising devices within SEVEN days fromthe date of the notices.
18.The prayer for prohibition sought to prohibit ‘the Respondent from pullingdown and removing all erected advertising signages, structures and devices ofmembers of the ex parte applicant within Mombasa County Road Reserves’ is as setout above overtaken by events although the respondent denies that it was responsiblefor the removal and destruction of the applicant member’s billboards and signages.The order for prohibition cannot therefore be made.
19.It is clear that the respondent’s decision violated the ex parte applicant’sconstitutional right to fair administrative action under Article 47 of the Constitutionand the ex parte applicant’s members are in the circumstances of the case entitled todamages for breach of the constitutional right. As damages are not recoverable underthe judicial review procedure, the court will in interests of justice deem theproceedings as having been brought under Article 22 of the constitution for theenforcement of the constitutional provisions of fair administration action andconsequently award damages for the breach thereof. This course of action accordswith the decision of the court in Stanley Munga Githunguri v. Attorney General No. 2(1986) KLR 1, where the three judge bench of the High Court deemed an applicationfor prerogative orders as one for the enforcement of fundamental human rights undersection 84 of the former constitution. The court will therefore make an award of damages to remedy the breach of the fair administrative action by the respondentupon hearing submissions of the parties on question of quantum of damages on a dateto be fixed in consultation with the parties.
Orders
20.For the reasons set out above, I make the following orders on the ex parteapplicant’s Notice of Motion dated 28th October 2013:1.An order of certiorari is granted as prayed in prayer no.1 of the Notice ofMotion.2.The order for prohibition sought in prayer no. 2 of the Notice of Motion isdeclined for having been overtaken by events.3.The ex parte applicant’s members herein will be awarded such damages forbreach of fair administrative action as the court shall determine uponsubmissions in that behalf by the parties on a date to be fixed.
21.Costs of the Notice of Motion will be in the cause.
DATED AND DELIVERED THIS 14TH DAY OF APRIL, 2014.EDWARD M. MURIITHIJUDGEIn the presence of: -Mr. Gikandi for Mr. Havi for the Ex parte ApplicantNo appearance for the RespondentMr. Bwire for the 1st ContemnorMr. Ibrahim – Court Assitant