[2022] KEHC 26962 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. E249 OF 2020

IN THE MATTER OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF ARTICLES 2(1), 3(1), 10, 22(1), 22(2), 23, 28, 43(1)(b), 43(1)(d), 46(1)(c), 53(2), 165(3)(b), 258 AND 260 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF CONTRAVENTION AND VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 28, 43(1)(b), 43(1)(d), 46(1)(c) AND 53(2) OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013

AND

IN THE MATTER OF SECTION 17 OF THE CHILDREN ACT NO. 8 OF 2001

IN THE MATTER OF SECTION 64 OF THE ENVIRONMENTAL MANAGEMENT AND CO-ORDINATION ACT NO. 8 OF 1999

AND

IN THE MATTER OF SECTIONS 92 OF THE PHYSICAL AND LAND USE PLANNING ACT NO. 13 OF 2019

AND

IN THE MATTER OF ARTICLES 3(1) AND 31 OF THE CONVENTION ON THE RIGHTS OF THE CHILD

AND

IN THE MATTER OF ARTICLES 4, 5, 12, 14, AND 28 OF THE AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD

BETWEEN

ERICK OTIENO OGUMO .................................................................1ST PETITIONER

JULIET NAKHANU KITUYI.............................................................2ND PETITIONER

JACKSON MWANGI WANJUGU.....................................................3RD PETITIONER

VERSUS

CHIGWELL HOLDINGS LIMITED .....................................................RESPONDENT

AND

COUNTY GOVERNMENT OF NAIROBI........................1ST INTERESTED PARTY

NATIONAL ENVIRONMENT MANAGEMENT

AUTHOURITY.....................................................................2ND INTERESTED PARTY

JUDGMENT

THE PETITION

1. The Petitioners through a Petition dated 18th August 2020 seek the following reliefs:-

a) A declaration that the Respondent has violated the constitutional rights of the Petitioners’ children as provided under the constitutional Articles referred to herein.

b) A declaration that the Respondent has violated the Petitioners’ rights and those of their children to human dignity and to reasonable standards of sanitation as well as the Petitioners’ right to clean and safe water in adequate quantities.

c) An order of Injunction restraining the Respondent by themselves or their agents/ servants from developing Phase 4 of Phenom Park Estate until such a time when it has adequately provided for designated play areas which should not be less than what has been proposed by the World Health Organization.

d) An order for Mandatory Injunction against the Respondent to conduct a fresh environmental impact assessment and obtain new development approvals from the 1st and 2nd Interested Parties within the time set by the Court and in the alternative;

a) An order for Mandamus against the 1st and 2nd interested Parties to revoke the respective approvals issued to the respondent in relation to the development of Phenom Park Estate.

e) Any other order or further orders that this Honourable Court will deem fit.

f) Costs of this Petition with interests be awarded to the Petitioners.

THE PETITIONERS’ CASE

2. The Petition is supported by the supporting affidavit sworn on 18th August 2020, replying affidavit sworn on 5th September 2020 and further affidavit sworn on 5th September 2020 by Erick Otieno Ogumo.

3. The Petitioners are residents of Phenom Park Estate within Langata Sub-County in Nairobi County constructed by the respondent and have brought this suit on their behalf and on behalf of the current residents living in phases 1, 2 and 3 of the said Estate.

4. The Petitioners paid premium for the houses from the respondent on the basis that the respondent had indicated in its marketing brochure that; the project will consist of clean and safe borehole water that will be connected to each house; and there would be designated play areas.

5. Upon moving into their respective houses, the Petitioners discovered that the Respondent had not left designated areas for playing within the phases 1, 2 and 3 now complete. Further, the approvals from the 2nd Interested Party were erroneous and inaccurate since after testing the borehole water, the report showed that there was high concentration of fluorides, bicarbonates and sodium.

6. Despite raising the two issues with the Respondent, the same has not been addressed hence the petitioners’ children are opting to play on pavements and car parking areas putting them at great risk of being run over by moving vehicles and they have been exposed to adverse health risks.

7. The said omissions by the respondent have violated their children’s rights under Article 53(2)as read withSection 17 of the Children’s Act and Articles 4, 5, 12 and 14 of the African Charter on the Rights and Welfare of the child andArticles 28and their rights under Articles 43 (1) (b) and (d) and 46 (1) (c) of the Constitution.

8. The Petitioners urge that by dint of Section 64 of the Environmental Management and Coordination Act No. 8 of 1999 the approval granted to the respondent be revoked and it be compelled to obtain fresh approval from the 1st and 2nd Interested Parties.

9. The Petitioners in their replying affidavit they depose that the 1st Interested Party is a necessary party to the proceedings as they issued erroneous approvals to the respondent. The approvals obtained by the Respondent are unconstitutional as they trample upon the rights of the children and that they have demonstrated the violations are not only limited to them but also affects all the residents within the estate.

10. The Petitioners in their further affidavit they deny admitting that the Respondent has in its possession legitimate and authentic licenses and or approvals and make reference to prayer 4 in their petition. They more or less reiterate the issues raised in the petition and supporting affidavit and urge the court to strike out the replying affidavit and uphold the exparte injunction issued by the Court.

RESPONDENT’S CASE

11. The Respondent filed grounds of opposition dated 10th September 2020, a replying affidavit by Nirish Shah sworn on 31st August 2020 and a supplementary affidavit sworn by Palkesh Shah on 18th January 2021. The Respondent deposes that it has performed all obligations under the respective agreements for sale, constructed phases 1, 2 and 3 in strict adherence to the approved drawing and plans which were made available to the petitioners to inspect before execution of the agreements and upon being handed vacant possession of their respective homes.

12. The Respondent contends that the petitioners lack the locus standi to seek the injunctions pleaded in the petition as the only relationship that subsists between them and the Respondent is limited to phases 1, 2, and 3. Further, barring them from continuing with construction of phase 4 will be breaching the rights of prospective purchasers who have committed/ paid deposits guaranteed under Articles 43 and 40 of the Constitution. It will also make them default on their contractual obligations to the said prospective purchasers leading to adverse economic and legal consequences.

13. The Respondent contends that demanding for additional playing area by the Petitioners that was not indicated on the approved architectural plans and which they inspected has no contractual basis and would be tantamount to rewriting the agreement between the parties.

14. The Respondent urges the court to vacate the injunction issued 19th August 2020 as it is delaying the construction of phase 4 and will ultimately lead to the violation of its rights under Article 40 if not lifted as it will suffer great economic loss.

15. The Respondent contends that the petitioners have not come to court with clean hands as they have continuously and maliciously slandered and defamed it leading to Civil Suit No. E4644 of 2020 wherein a temporary injunction has been issued against the petitioner and other individuals from defaming the respondent.

16. In the supplementary affidavit, the respondent avers that the site report prepared by the Deputy Registrar dated 29th October 2020 is incomplete as it does not recognize the clubhouse and the swimming pool as a playground.

1ST INTERESTED PARTY

17. The 1st Interested Party filed grounds of opposition dated 8th September 2020. The summary of the grounds are;

i) That the Petitioners have not demonstrated in any manner whatsoever how the 1st Interested Party has violated their constitutional rights under the Constitution.

ii) That the Petitioners have not cited any provisions of the constitution that have been violated by the 1st Interested Party.

iii) That the Petition is hapless, presumptive and an abuse of the Court process and should be dismissed with costs.

iv) That the 1st Interested Party is a stranger to the application by the Petitioners.

v) That the 1st Interested Party is not a necessary party to these proceedings as it was not a party to the agreements between the Petitioners and the Respondents.

vi) That the mandate of the 1st Interested Party is to approve building plans as presented to them.

SITE VISIT REPORT

18. The Judge in conduct of this suit directed the Deputy Registrar to visit the site (estate) and determine whether there is provision of playground and its size and whether there is provision for piped water.

19. The said site visit took place on 29th October 2020 and the findings were that; there was no provision for playgrounds in the courts visited; there was provision for piped water; and the residents rely on water from the borehole.

ANALYSIS AND DETERMINATION

20. Having carefully considered the parties pleadings, site visit report and parties submissions, the following issues arise for determination: -

a) Whether the doctrine of constitutional avoidance is applicable.

b) Whether the Petitioners’ rights were violated.

A. WHETHER THE DOCTRINE OF CONSTITUTIONAL AVOIDANCE IS APPLICABLE.

21. The Respondent argues that this is not the correct forum and that there are other alternative forums where this issue can be raised being that they are contractual issues. An order for specific performance and damages for breach of contract it is argued would have been sufficient once the petitioners proved their claim against it. Reliance is placed in the cases of Petition No. 14 of 2014 (Consolidated with Petition No. 14A, 14B & 14C of 2014: Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR; Civil Appeal No. 67 of 2015: Gabriel Mutava & others v Managing Director Kenya Ports Authority & another [2016] eKLR;andPetition 503 of 2014: Bernard Murage v Fineserve Africa Limited & 3 others [2015] eKLR.

22. Mrima J. in Anthony Miano & others v Attorney General & others [2021] eKLR observed that the doctrine of constitutional avoidance, deals with instances where a Constitutional Court will decline to deal with a matter because there is another remedy provided in law which the aggrieved party is yet to utilize. This doctrine is also referred to as doctrine of exhaustion.

23. The said doctrine as observed in Petition No. 159 of 2018 Consolidated with Petition No. 201 of 2019 ( 2020) eKLR may arise where a litigant is aggrieved by an agency’s action, seeks redress from the court of law on an action without pursuing available remedies before the agency itself.

24. Similar position is observed in Geoffrey Muthiga Kabiru & 2 others vs Samuel Munga Henry & 1756 others [2015] eKLR but which proceeds to set out exceptions to the said doctrine. To wit; where the exhaustion requirement would not serve the values enshrined in the constitution and permit the suit to proceed before it; where there are valid grievances from parties who lack adequate audience before a forum created by a statute, or who may not have the quality of audience before the forum which is proportionate to the interest the party wishes to advance in a suit must not be ousted; and where a party alleges violation of fundamental rights.

25. The issues raised by the Petitioners herein are on violation of fundamental rights, which this court has jurisdiction over by virtue of Article 165 (3) (b) of the Constitution. These are constitutional issues which this Court is mandated to determine. I therefore do not agree with the Respondent that the said doctrine is applicable in this matter.

B. WHETHER THE PETITIONERS’ RIGHTS WERE VIOLATED.

26. On the designated play areas, the petitioners submitted that the Respondent has violated their legitimate expectation as they relied on the marketing brochures to buy the respondents property on the provision of designated play areas. The Petitioner in support thereof relied on Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR Petition 14, 14A, 14B & 14 C of 2014 (Consolidated).

27. The Petitioner further relying on Articles 53(2) and 28 of the Constitution; Section 4(2) of the Children’s Act No. 8 of 2011; Article 20 of the African Charter on the Rights of the child ; Article 3(1) of the Convention on the Rights of the Child; and the cases of ANM v FPA (suing as the father and next friend of the minor) [2021] eKLR Civil Appeal E 13 of 2020;and L.N.W v Attorney General & 3 others [2016] eKLR Petition 484 of 2014, argued that the child’s best interest are paramount and the deliberate refusal to provide play areas as promised has robbed them of their dignity relegating them to the same level with all manner of vehicles as they compete for the same cabro paved driveways to play as the vehicles move around.

28. It is submitted by the Petitioners that the site visit indicated that none of the courts within the estate had provisions for playgrounds and the defamation suit has no bearing in this petition. They further submitted that the replying affidavit and the grounds of opposition by the respondent are only meant to divert the courts attention from the constitutional to commercial by focusing on the substance of the sale agreement which is not the reason for this dispute. Reliance is placed in the case of CIS v Directors, Crawford International School and 3 others (Constitutional Petition 162 of 2020).

29. It is Petitioners contention that the fact that the respondent in annexure EOO-4A indicated that they would take the issue of lack of designated play areas into consideration, and admitting in Annexure EOO-4B that the measurements for the designated play areas is done by their contractor then sent to the 1st Interested Party for approval and that they complied with the laid down regulations was prove that the plans sent were devoid of the intended plans to provide designated play areas as per the marketing brochures. The respondents have also as per minutes 04/03/2021 and 05/03/02/2021 not committed to providing the said areas. Hence the interested party is obligated to revoke any unprocedural plans that had been issued and approved at the initial stage of any development.

30. Relying on Republic v County Government of Nairobi; Kilimani Project Foundations & 21 others (Interested Parties) Ex Parte Cytonn Investment Partners Sixteen LLP [2020] eKLR and Section 64 of the Environmental Management and Co-ordination Act No. 8 of 1999, the Petitioner submitted that there was no public participation when the architectural plans were changed to omit the designated play areas before presenting them to the interested parties for approval.

31. The Petitioner in their response dismiss the averments in the supplementary affidavit by the Respondent and submit that the site report confirmed that there are no designated play areas in the estate. It is further contended that the clubhouse and the swimming pool cannot accommodate children from over 200 households and cannot be used as the threshold in the provision of the designated play areas.

32. On the provision of clean and safe water it is urged that the Respondent has in annexure EOO-4 admitted that the water is not fit for human consumption, in Annexure EOO-4B Minute 6, it is equally admitted that the fluoride levels are high and that they have installed water purifiers in part of phase 3 and not 1 and 2, the water testing report dated 3rd March 2021 and the email of 19th March 2021 indicate the high PH and the high fluoride levels and recommend reverse osmosis water purifier be fitted in houses in phases 1 and 2.

33. The Petitioner confirmed meeting the threshold in Anarita Karimi case and that costs follow the event as in Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLRandFarah Awad Gullet v CMC Group Motor Limited (Civil Appeal No. 206 of 2015).

34. The Respondent submitted that the Petitioners had not adduced evidence to show how the construction of houses in the estate and failing to provide designated play areas affected their right to a clean healthy environment or pose any potential harm to the environment. According to them, they carried out the constructions as per the approved plans and it is on that basis that they were granted the Certificates of occupation by the Interested Parties. No evidence was adduced to show that the measurements sent to the interested parties for approval were devoid of measurements for the play areas as per the marketing brochures.

35. It argued that the marketing brochures were only for marketing purposes and not binding unless the same were incorporated in the agreement for sale and or contract executed by the parties. Hence any reliance on them for breach of contract is baseless. It further argued legitimate expectation is not applicable herein rather promissory estoppel is which it cannot stand as it has provided a swimming area within the courts and a club house which cater for the children’s leisure and recreational activities.

36. The Respondent added that it had provided precautionary measures within the estate to ensure the safety of the children while playing in the provided areas and that the sale agreement do not in any way give specifics on the size and the kind of play area to be provided. Hence requiring it to provide another play area would be making it look for an alternative space, interfering with the approved plans and is an illegality.

37. The Respondent submitted that the Petitioners were made aware that the borehole water was to supplement the one provided for by the Nairobi City Water and Sewerage Company and that it was not for consumption but for other domestic purposes hence the claim is baseless and it is the duty of the Petitioners and residents of the estate to prevail upon the management company of the estate to liaise with the Nairobi City Water and Sewerage Company to ensure that the clean water for human consumption is provided to the residents.

38. The Respondent contended that it had installed water filtration systems in phase 3 and that given time it would do the same for the other phases. Further the Petitioners lack locus standi to stop the construction of the houses in phase 4 as the contract between them is only limited to phases 1-3.

39. The 1st Interested Party argued that it is not a party to the contract between the Petitioners and the respondent, the Petitioners have not demonstrated how it has infringed on their rights and there is no cause of action against it. It also confirmed that it is obligated to ensure proper execution and implementation of approved physical development plans and if there is a breach of the approved conditions or there is discovery of a material justifying the cancellation of the approval, it is mandated to revoke or cancel the approval. Relying on Susan Mumbi v Kefala Grebedhin (Nairobi HCCC NO. 332 of 1993) it urged the court to dismiss the case against it with costs.

40. The Petitioners allege that their legitimate expectation has been violated by the Respondent. That the marketing brochures and the contents contained therein were the basis for purchasing houses constructed by the respondent. The Respondent has argued that legitimate expectation is not operational between private individuals and that the marketing brochures were only for purposes of marketing and the issues raised in the Petitions are not contained in the agreement for sale. I have had a look at the marketing brochure and I confirm that the two issues raised by the Petitioners are not contained therein. The agreement for sale makes no mention of the same. I however do agree with the Respondent that the doctrine of legitimate expectation is applicable to public bodies as was observed in Royal Media Services Ltd and 5 others (Petition No. 14 of 2014)and Nairobi Civil Appeal No. 150 of 2018, Kenya Revenue Authority v Universal Corporation Ltd [2020] eKLR where the principles of legitimate expectation were elaborated.

41. The petitioners have alluded to violation of Articles 53 (2) , 28 and 43 (1) (b) and (d) of the Constitution by the respondent failing to provide designated play grounds for their children and failing to provide water fit for consumption. They have argued that the Respondents changed the architectural plans and presented to the Interested Parties without involving them hence breaching their right to public participation. They also submit that they have met the threshold espoused in the Anarita Karimi Njeru case. The Respondents have submitted that the petitioners have not demonstrated how the construction of the houses and failure to provide designated play grounds will pose a danger to the environment. The Petitioners have also not shown that the plans submitted to the interested parties for approval were devoid of measurements for play areas as per the brochure. It has put precautionary measures in the estate and has indicated that given more time, it can install filters in the phases 1 and 2 as in phase 3. It finally submits that the Petitioners lack the locus standi to stop construction of houses in phase 4. The Interested Party has submitted that there is no evidence of any violations by it against the Petitioners and there exists no cause of action hence it is not a necessary party.

42. It is trite law that where a party alleges, the said party must prove as espoused in Section 107 of the Evidence Act. The petitioners have raised issues concerning violation of their constitutions rights. They have cited Article 28 and 53(2) of the Constitution, they have pleaded that there are no play areas for their children and that as a result the children are forced to compete with motor vehicles exposing them to danger. The Respondent has not controverted this contention. I find such failure to provide playground is not in the best interest of the child as espoused in Article 53(2) of the Constitution.

43. Mativo J. in MWK v another v Attorney General & 3 others [2017] eKLR observed that human dignity is not defined by Article 28 and made reference to O’ Regan J in South African case of S v Makwenyane{1995} ZACC 3;1995 (3) SA 391(CC) in para [328] on the prime value of dignity as follows;-

“The importance of dignity as a founding value of the ... Constitution cannot be overemphasized. Recognizing a right to dignity is an acknowledgment of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. The right is therefore the foundation of many of the other rights that are specifically entrenched in Chapter 3. ”

44. The Petitioners have submitted and demonstrated that their children’s right to human dignity has been violated. There are no play grounds in the Estate, hence they are left to compete with motor vehicles for space exposing them to danger. The site report by Deputy Registrar of this Court also confirmed that there are no play areas in the estate and that the ones available have either clothes line, manhole, or electricity torrents hence not fit as playground for the children. The fact that the Respondent has not made any effort since the Petitioners took up issue with it, to address this issue portrays a breach of the children’s right to human dignity. The Respondent do not in my view consider that the children are important to have the issue raised addressed. The Respondent inaction leave them in a position where they are competing with motor vehicles for space for parking and playing for the children exposing them to danger which is obviously not in the best interest of the children hence a violation of Article 53 (2) of the Constitution.

45. On the rights under Article 43 of the Constitution to accessible and adequate housing, and to reasonable standards of sanitation the Petitioners have not demonstrated how the Respondent has violated their right to accessible and adequate housing and to reasonable standards of sanitation.

46. On right to clean and safe water in adequate quantities, the Petitioners have adduced evidence and produced reports indicating that the water in the borehole provided by the Respondent is not safe for human consumption. The water by the Nairobi Sewerage Company is also not adequate as admitted by the Respondent. The Respondents have also admitted that the water is not fit for human consumption and the Respondent has to that extent installed water filtration systems to houses in phase 3 and are requesting for more time is an acknowledgement of their obligation. I find in my view that there is violation of Article 43 (1) (d) of the Constitution. The Petitioners have however not demonstrated how the Respondent and Interested Parties have violated their right to public participation.

47. On the issue of lacking locus standi as to the construction of houses in phase 4, I do not agree with the Respondent. The Petitioners by dint of Articles 22 of the Constitutionand 258 of the Constitution have the locus standi to bring a suit on behalf of the future and or prospective buyers as there is apprehension that their rights are threatened.

48. The 1st Interested Party has admitted that it is obligated to ensure proper execution and implementation of approved physical development plans and if there is a breach of the approved conditions or there is discovery of a material justifying the cancellation of the approval, it is mandated to revoke or cancel the approval. In my view the Interested Party ought to visit the estate and if the constructions are not as per the approved plan, revoke the approval. This is an issue for consideration by Interested Party.

49. The upshot is that the Petitioners Petition is meritorious and I proceed to grant the following orders:-

a) A Declaration be and is hereby issued that the Respondent has violated the constitutional rights of the Petitioners’ children as provided under the constitutional Articles referred to herein.

b) A declaration be and is hereby issued that the Respondent has violated the Petitioners’ rights and those of their children to human dignity and to reasonable standards of sanitation as well as the Petitioners’ right to clean and safe water in adequate quantities.

c) I direct the Respondent do within ninety (90) days from the date of this judgment install water filtration systems to houses in Phase 1 and 2 as already done in houses in phases 3.

d) I direct that within 90 days of this Judgment the Respondent do provide a play area for the children in house in phase 1, 2 and 3 separate from the vehicle parking grounds.

e) I decline to grant prayers 3 and 4 of the Petition.

f) Costs of the Petition to the Petitioners to be met by the Respondent.

DATED, SIGNED AND DELIVERED AT NAIROBI ON THIS 3RD DAY OF MARCH, 2022.

………………………

J. A. MAKAU

JUDGE OF THE HIGH COURT OF KENYA