[2012] KEHC 1131 (KLR)
The court found that both criminal cases against the petitioner arise from the same facts and involve similar offences under the Environmental Management and Coordination Act. Proceeding with both cases simultaneously would prima facie violate the petitioner's rights. However, the court recognized the public...
Source-derived case information.
- Citation
- [2012] KEHC 1131 (KLR)
- Parties
- Petitioner: Elizabeth Njeri Hinga; Respondent: National Environmental Management Authority; Respondent: Director of Public Prosecutions; Respondent: Honourable Attorney General; Respondent: The Chief Magistrate’s Court at Kibera
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 465 of 2012
- Procedural Posture
- Constitutional Petition / Ruling on Application for Conservatory Orders
- Outcome
- conservatory order granted in part; one criminal case stayed pending determination of the petition
- Judges
- DAS Majanja
- Legal Topics
- Conservatory Orders, Double Jeopardy, Environmental Compliance, Criminal Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Njeri Hinga
Petitioner
National Environmental Management Authority
Respondent
Director of Public Prosecutions
Respondent
Honourable Attorney General
Respondent
The Chief Magistrate’s Court at Kibera
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Conservatory Orders
Legal Issues
- 1 Whether prosecuting the petitioner in two criminal cases arising from the same facts violates her constitutional rights.
- 2 Whether a conservatory order should be granted to restrain parallel prosecution pending determination of the petition.
Ratio Decidendi
The court found that both criminal cases against the petitioner arise from the same facts and involve similar offences under the Environmental Management and Coordination Act. Proceeding with both cases simultaneously would prima facie violate the petitioner's rights. However, the court recognized the public interest in prosecuting environmental offences. To balance these interests, the court exercised its discretion to grant a conservatory order restraining the prosecution from proceeding with one of the cases (Kibera Criminal Case 1907 of 2012) pending the hearing and determination of the constitutional petition. This approach preserves the petitioner's rights while allowing the...
Court Disposition
conservatory order granted in part; one criminal case stayed pending determination of the petition
Orders
- A conservatory order is issued restraining the respondents from prosecuting or proceeding with Kibera Criminal Case 1907 of 2012 pending the hearing and determination of this cause or until further orders of the court.
- Costs of the Chamber Summons dated 15th October 2012 shall be in the course.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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ELIZABETH NJERI HINGA ..............................................................................PETITIONER
AND
NATIONAL ENVIRONMENTALMANAGEMENT AUTHORITY .......1ST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS.......................................2ND RESPONDENT
HONOURABLE ATTORNEY GENERAL...........................................3RD RESPONDENT
THE CHIEF MAGISTRATE’S COURT AT KIBERA...........................4TH RESPONDENT
RULING
1. The grant of a conservatory order and indeed the reliefs set out in Article 23 of the Constitution are a matter for the court’s discretion. The gravamen of the petition as raised in the application dated 11th October 2012 is that she faces two trials arising from the same facts.
2. In Kibera Criminal Case 1907/2012, she is charged with an offence under Section 58 of the Environment Management and Coordination Act (Act No. 8 of 1999) in which it is alleged that on 11th January 2011 she failed to submit a project report on quarrying activities undertaken on LR No. 11478, Mirema Drive Kasarani which she owns. The second count relates to failure to comply with an order issued by NEMA to stop quarrying activities.
3. In Kibera Criminal Case 4429/2012, she is charged with the self same offences, that is the offence arising out of her failure to submit a project report contrary to the provisions of the Act and in a second count failing to comply with the environmental restoration order.
4. Prima facie, both cases deal with the similar offences and facts and I agree that the petitioner’s rights would be violated if the matters were to proceed tandem. This is not to say that the respondents are not entitled to prefer charges as it is the public interest that offenders be prosecuted to the fullest extent permitted by law.
5. The nature of a conservatory order is that the court is required to balance public interest and individual rights pending hearing and determination of the matter and in doing so, I think this balance will be struck by permitting one case to proceed and the other to be stayed.
6. The order that commends itself to me is as follows;
(i)A conservatory order be and is hereby issued restraining the respondents from prosecuting or in any way proceeding with Kibera Criminal Case 1907 of 2012 pending the hearing and determination of this cause or until further orders of the court.
(ii)Costs of the Chamber Summons dated 15th October 2012 shall be in the course.
DATEDand DELIVERED at NAIROBI this 8th day of November 2012
D.S. MAJANJA
JUDGE
COURT–Ruling read and delivered in open court.
D.S. MAJANJA
JUDGE