The Applicant’s case:
2.The application was brought on the grounds set out in the statutory statement and a verifying affidavit of Harshad Vara dated 12th October 2018 in which the Applicant set out its case against the Respondents as follows:
3.On 25th October 2018, the Applicant was issued with a circular letter of the same date by the 1st Respondent to the effect that all properties that had encroached on among others, Kenya Airports Authority land at Jomo Kenyatta International Airport known as Plot No. 21919 would be demolished upon expiry of the period that was set out in the said circular letter. Upon receipt of the circular, the Applicant made every effort to find out from the 1st Respondent whether the suit property was part of those referred to in the said circular. Several officials of the 1st Respondent initially informed the Applicant that the suit property was not among those that were identified for demolition. The Applicant thereafter commenced construction of godowns on the suit property which was approved by the 4th Respondent. The Applicant was later informed on 12th October 2018 that the developments on the suit property were set for demolition on 15th October 2018.
4.The Applicant averred that it was the lawful owner of the suit property and that the property was not part of the land owned by Kenya Airports Authority (hereinafter referred to only as “KAA”). The Applicant averred that it was not granted an opportunity to be heard prior to the making of the decision contained in the said circular letter dated 25th September 2018 to the effect that the suit property had encroached on KAA’s land at Jomo Kenyatta International Airport (hereinafter referred to only as JKIA) and that the structures on the property would be demolished unless the Applicant demolished the same within the period of the notice. The Applicant contended that having not been granted an opportunity to be heard, it was denied an opportunity to explain the manner in which it acquired and developed the suit property
5.The Applicant contended that the impugned circular letter by the 1st Respondent that sought the demolition of the developments on the suit property was illegal, null and void for various reasons. Firstly, the Applicant contended that the 1st Respondent was a body unknown in law and had no legal mandate to issue notices for demolition of buildings and secondly, the notice was purportedly issued under the Wayleaves Act, Chapter 292 Laws of Kenya that was repealed in 2012 and the Physical Planning Act, 286 Laws of Kenya (now repealed) that had no provision authorising the giving of such notice.
6.The Applicant contended further that the Applicant’s title to the suit property had not been revoked by a competent court and as such the same was lawful and valid. The Applicant averred that there was no irregularity or impropriety in the sale transaction through which it acquired the suit property. The Applicant averred that it was a bona fide purchaser of the suit property for value without notice of any defect in its title and that its title to the suit property enjoyed protection of law.
7.The Applicant contended further that the actions of the 1st Respondent complained of offended its rights as provided for in the Fair Administrative Action Act 2015 in addition to being a breach of the rules of natural justice and the constitutional right to a fair hearing. The Applicant has contended that the said circular also offended the Applicant’s legitimate expectation to enjoy quiet possession of its property as the bona fide owner of thereof. The Applicant contended further that the 1st Respondent acted unreasonably by not taking into account the Applicant’s lawful title and the approvals it had obtained from statutory bodies and Government agencies to construct a boundary wall on the suit property.
13.What is before the court is an application for judicial review. What I need to determine is whether the Applicant has satisfied the conditions for the grant of the orders of Certiorari, Prohibition and Declaration sought. I think that it is necessary to consider the general principles applied by the courts on applications of this nature before going to the merit of the application which would involve merely applying the said principles to the facts of the case. A few notable cases and legal texts would suffice for that purpose. In Municipal Council of Mombasa v Republic & another  eKLR the Court of Appeal stated as follows concerning judicial review:
14.In OJSC Power Machines Limited, Trans Century Limited, and Civicon Limited (Consortium) v Public Procurement Administrative Review Board Kenya & 2 others NRB CA 28 of 2016,  eKLR, the Court of Appeal stated as follows:
15.In the book, H. W. Wade and C. F. Forsyth, Administrative Law, 10th Edition, the authors have stated as follows at page 509 on the remedies of Certiorari and Prohibition:
16.In Kenya National Examination Council v Republic, Ex-parte Geoffrey Gathenji Njoroge & 9 others  eKLR, the court stated as follows on the scope and efficacy of remedies of Prohibition and Certiorari:
17.In Republic v National Land Commission Ex-Parte Ephrahim Muriuki Wilson & others  eKLR the court stated as follows:In Sanghani Investment Limited v Officer in Charge Nairobi Remand and Allocation Prison  1 EA 354 the court stated as follows:
18.In the book; Public Law in East Africa published by Law Africa, the author Ssekaana Musa has stated as follows at page 250;
19.It is on the foregoing principles that the Applicant’s application falls for consideration. These proceedings were brought following a public notice dated 25th September 2018 that was issued by the Government through the National Buildings Inspectorate. The notice was signed by Moses Nyakiongora as the Secretary National Buildings Inspectorate and Chairman Multi-Sectoral Committee On Unsafe Structures. The notice concerned “Removal of illegal structures” and it was addressed to “the owners/developers of illegal developments, buildings/structures and go-downs which have encroached to Kenya Airports Authority land at JKIA on L.R No. 21919, Wilson Airport land, L.R No. 209/13080 and Embakasi Village Airport Staff Quarters”
20.The notice was said to have been issued “in the interest of safeguarding aviation Safety, Security and Human Life..”. The notice called upon those who had undertaken any development, entered, occupied, developed or initiated any human activity on KAA land or any portion thereof, on the flight path or upon any restricted area of JKIA or Wilson Airport or KAA Embakasi Staff quarters without approval by KAA to remove the illegal structures and vacate the encroached areas within 14 days for their own safety. They were warned that if the notice was not heeded, the illegal buildings, installations or erections would be demolished or removed from the encroached areas without any further reference to them.
21.The Applicant has challenged the said notice on various grounds which are set out in its Statutory Statement dated 12th October 2018 and a Verifying Affidavit of the same date. The Applicant has contended that the notice was illegal, ultra-vires, irrational, a breach of the rules of natural justice and constituted abuse of power and discretion, unreasonable and an infringement of the Applicant’s legitimate expectation. The Applicant has contended that the notice was issued under non-existent provisions of the law and contrary to the Fair Administrative Action Act 2015. The Applicant has contended that it was entitled to adequate notice of the decision, the reasons for the decision and an opportunity to be heard before the decision was implemented.
22.The impugned notice was issued by the Secretary National Buildings Inspectorate and Chairman Multi-Sectoral Committee On Unsafe Structures. It is not clear why the Applicant sued only “Multi-sectoral Committee On Unsafe Structures” as the first Respondent. The notice was issued by the “National Buildings Inspectorate” and “Multi-Sectoral Committee On Unsafe Structures.” The two cannot be separated. The National Buildings Inspectorate is a department within the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works (the Ministry) as deposed in the affidavit of Moses Nyakiongora. It is not true however that it was established through Executive Order No. 1 of 2018. The executive order merely placed the department under that Ministry. From the literature that I have come across on National Buildings Inspectorate, the same was established earlier in 2015 to carry out audits of buildings for conformity with land registration, planning, zoning and building standards and soundness.
23.National Buildings Inspectorate therefore exists in law. As for Multi-Sectoral Committee On Unsafe Structures, it appears from the evidence before the court to have been a committee composed of various agencies or organs of the national and county governments which was formed to deal with the problem of unsafe structures in the country. From the affidavit of Moses Nyakiongora and the minutes of the said committee that were produced in court, the committee had three major mandates namely; profiling and demolishing of unsafe buildings/structures, removal of illegal structures without necessary documentation and clearing of illegal developments on riparian reserves. The institutions and agencies represented in the Committee from the minutes of its deliberations were National Buildings Inspectorate, Kenya Airports Authority, Kenya Power & Lighting Co. Ltd, Nairobi City County, National Construction Authority, National Environmental Management Authority, Kenya Urban Roads Authority, National Youth Service, Water Resources Management Authority among others. The committee was operating under the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works (the Ministry) as its mandate to a large extent fell within that Ministry. I am of the view that there is nothing illegal in a Government Ministry forming a committee comprising of various agencies to assist it handle any particular mandate falling under it. It is therefore my finding that it was not unlawful for the National Buildings Inspectorate department under the Ministry working together with the Multi-Sectoral Committee On Unsafe Structures in dealing with the problem of unsafe structures and illegal developments in the country. Neither the National Buildings Inspectorate nor the Multi-Sectoral Committee On Unsafe Structures was an illegal entity as claimed by the Applicant.
24.I now turn to the legality of the notice that was issued by the National Buildings Inspectorate and Multi-Sectoral Committee On Unsafe Structures (hereinafter referred to only as “the 1st Respondent).” I have set out the particulars of the said notice earlier in the judgment. There is no doubt that the notice was issued on behalf of KAA that was a member of the 1st Respondent. The notice was not addressed to any particular person or individual. It was a public notice that was addressed to the persons who were alleged to have encroached on KAA land to vacate the same and to remove the structures they had put up thereon illegally without the approval of KAA. There is no doubt that this was an eviction notice to those concerned. The notice was clear that if they failed to vacate and demolish the structures that they had put up on KAA land, they would be evicted.
25.I am not in agreement that the persons targeted with the said notice some of whom may not have been known to the 1st Respondent were entitled to be heard before such notice was issued. The notice was addressed to the persons considered trespassers by both KAA and the 1st Respondent. Trespass is a criminal offence. Section 3 of the Trespass Act, Chapter 294 Laws of Kenya provides:
26.Section 152A of the Land Act, 2012(as amended) provides as follows:
27.I am of the view that a person considered a trespasser on land is not entitled to be heard before he is asked by the land owner to vacate the land. The law does not place such obligation on the land owner. What is secured by the law is the process and manner of eviction of a trespasser. I am of the view that what was required of the 1st Respondent was to comply with the law on evictions which law has an inbuilt mechanism of ensuring that those considered trespassers are given an opportunity to approach the court for relief before they are evicted.
28.Section 152B of the Land Act 2012(as amended) provides as follows:
29.Kenya did not have eviction law for a long time. The law was introduced in 2016 through an amendment to the Land Act 2012 which introduced Sections 152A to Section 152I which deals with evictions from public, community and private late. These provisions of the Land Act provide a procedure for carrying out eviction. They provide for the giving of a notice, a right of the person served with the notice to approach the court for relief and the manner of carrying out the actual eviction.
30.The notice that was served by the 1st Respondent fell short of the form of notice that is provided for in Section 152C and 152E of the Land Act, 2012(the Act) in several material respects. The 1st Respondent gave the Applicant and others to whom the impugned notice was addressed 14 days notice to vacate what was referred to as KAA’s land in default of which they would be evicted. The Act however provides for 3 months notice. The Applicant was in the circumstances given inadequate notice. There is also no evidence that the notice was served in accordance with the provisions of the Act. In the circumstances, the 1st Respondent’s notice that was purportedly served under the Wayleaves Act that had been repealed and the Physical Planning Act, Cap. 286 Laws of Kenya was illegal, null and void. A null and void notice is open to review by the court. The Applicant is therefore entitled to an order of Certiorari to quash the decision contained in the notice.
31.As concerns the order of prohibition and the declaration sought, I am not satisfied that a case has been made out for granting the orders as prayed. Although the Applicant denied it, it is clear on the face of the filings by the parties that there is an underlying dispute over the ownership of the suit property between the Applicant and KAA. The prohibitory order sought by the Applicant is framed in very wide terms. The court can only grant an order on the said terms where a determination has been made that the Applicant is the lawful owner of the suit property. The court cannot make such determination in these proceedings. First, the Applicant did not join KAA to the suit although it was well aware that the impugned notice was issued on its behalf. Secondly, a dispute over ownership of land cannot be determined in a judicial review application through affidavit evidence. I will therefore grant the order of prohibition but limited only to any action that may be taken pursuant to the impugned notice that I have found to be illegal, null and void. As for the declaration, the Applicant is not entitled to the same. On the material before the court, the title of the Applicant to the suit property is under serious challenge. The Applicant should file a normal civil suit for such a declaration to issue.