Why Kisumu Council Will Pay For Breach Of Right To Fair Administrative Action

Where a municipal authority neglects to respond to several letters from a member of the public who has acquired land within the municipality and is seeking clearance to develop the land, has the authority breached the person’s right to expeditious, efficient, lawful, reasonable and procedurally fair administrative action provided in Article 47 of the Constitution of Kenya, 2010?

Rachel Auma Owiti v Municipal Council of Kisumu [2012] eKLR

Petition 52 of 2011

High Court at Kisumu

HK Chemitei J.

July 13, 2012

All statutory bodies have the duty to serve its constituents with utmost care speed and diligence; the High Court at Kisumu has held. Justice Chemitei made the decision in a suit where the petitioner Rachel Auma Owiti had purchased a parcel of land in Kisumu Municipality from one Joseph Gathamba Maina on December 20, 2001. The said Mr. Maina had been allotted the property by the respondent, Municipal Council of Kisumu on January 4, 1999.

The petitioner had made an application to the Municipal Council of Kisumu for development of the said property and which she paid for approval on December 2, 2010. It was her contention that the respondent despite numerous letters and reminders had refused to approve the necessary building plans which it was holding for the petitioner to start developments on the land which according to her was in complete breach of her fundamental rights as per the Constitution.

In response the respondent objected to the petition and submitted that the said plot had been repossessed and given to another deserving person as the petitioner or the allotee had failed to comply with the stipulated rules requiring that the property be developed within twelve (12) months after being allotted. The respondent further attached the minutes of the full council which revoked the allotment to the petitioner of the suit property.

There was further a gazette notice inviting members of the public to bid for the repossessed plots which included that of the petitioner. From the affidavit evidence on record, it was shown that Mr. Maina was allotted the suit property on 4th January 1999 and had proceeded to accept the terms by signing on the letter of offer and in particular on the condition attached to the same. Condition 6 of the offer stated that “Time allowed for construction and completion of the building shall be twelve (12) months”. No. 7 further stated that “Failure of plot owners to erect a building within their stipulated time shall cause the council to repossess the plot without further reference to the plot owner”

Right to Fair Administrative Action

The court observed that from the Sale Agreement dated December 20, 2001 between the petitioner and Mr. Maina it was clear that by the time she purchased the property it had not been developed. The application for development and which she paid for approval was on December 2, 2010 about ten (10) years from the date of the allotment and purchase. Was the respondent therefore in breach of the relevant constitutional provisions? The court in making the decision made reference to

Article 47 (1) and (2) of the Constitution which states:-

47 (1) Every person has the right to administrative action that is expeditious efficient, lawful, reasonable and procedurally fair.

47 (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

The minutes of the respondent dated February 19, 2010 showed that the petitioner’s plot was one of those which were repossessed. The same was buttressed by the gazette notice dated October 15, 2010. The court pointed out that by then and afterwards the respondent continued to receive the rates and approval fees from the petitioner. It was further noted that the petitioners letters dated September 24 and 26, 2011, February 28, 2011, June 6, 2011 as well as December 8, 2010 went unanswered by the respondent.

The court opined that the failure to respond to the petitioner letters clearly breached Article 47 (1) and (2) of the Constitution. The approval fee of Kshs. 21,300 was paid on December 30, 2010. Ordinarily the respondent ought to have approved the plans or at least communicated to the petitioner expeditiously of its failure to approve. The court emphasized that the recalcitrance action by the respondent was inefficient, unlawful, unreasonable and unprocedural and time wasting. It was pointed out that there was no reason shown by the respondent why it failed to respond to the letters and yet it was quick to receive payments from the petitioner. At most it ought to have rejected the cash since at any rate it had revoked the allotment.

On the issue of whether the respondent had acted illegally in repossessing the property from the petitioner, the court observed that the petitioner had failed to develop the property. The developments ought to have been commenced within twelve (12) months from the date of allotment. For the petitioner to commence development about ten (10) years later was inordinate delay according to the court. The respondent in the courts view had acted within its mandate in revoking the allotment of the suit property. If the procedure adopted by the respondent in revocation was wrong the same ought to have been ventilated in a Judicial Review Proceedings.

In conclusion the court reiterated that the purposes and duty of any statutory body was to serve its constituents with utmost care speed and diligence. The respondent was hence in breach of Article 47 of the Constitution and for that reason the respondent was ordered to pay to the petitioner the sum of Kshs. 150,000 for general damages. The respondent was further ordered to refund to the petitioner all the amount of money it had received from the date it revoked the allotment of the petitioners.