[2018] KEELC 2147 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KAKAMEGA

ELC CASE NO. 143 OF 2016

GEORGE MBITHI MULINGE.........................................PLAINTIFF

VERSUS

THE CHAIRMAN LUANDA CONSTITUENCY

DEVELOPMENT FUND COMMITTEE.......................DEFENDANT

RULING

The defendant herein, the Chairman Luanda Constituency Development fund Committee, raised a preliminary point of law based on section 56 of the National Government Constituency Fund Act which section provides as follows:-

56 (1) “All complaints and disputes by persons arising due to the administration of this Act shall be forwarded to the Board in the first instance”.

The present suit was filed contrary to the aforegoing provisions hence premature and incompetent and should be struck out with costs.

The plaintiff opposed the preliminary objection and stated that they did issue a demand notice to the defendant and this was enough. This court has unlimited jurisdiction and should hear this matter.

This court has carefully considered the preliminary objection and the submissions herein. Section 52 of the National Government Constituency Fund Act which section provides as follows;

52 (1) “All complaints and disputes by persons arising due to the administration of this Act shall be forwarded to the Board in the first instance”.

On the interpretation of statutes where the words "may" and "shall" have been used, the Court of Appeal in the case of Peter Muturi Njuguna v Kenya Wildlife Service [2017] eKLR, the court of appeal held that;

"It cannot, therefore, be overemphasized that while the court must rely on the language used in a statute or in the rules to give it proper construction, the primary purpose is to discern the intention of the Legislature (or Minister) in enacting or making of the provision...... Whether the words“shall”or“may”convey a mandatory obligation or are simply permissive, will depend on the context and the intention of the drafters."

See the case of Sony Holdings Ltd –vs- Registrar of Trade Marks & Another [2015] eKLR.

In the Australian case of Johnson's Tyne Foundry Pty Ltd v Maffra Shire Council(1948) 77 CLR 544 at 568,Williams, J stated:

“‘May’, unlike ‘shall’, is not a mandatory but a permissive word, although it may acquire a mandatory meaning from the context in which it is used, just as ‘shall’ which is a mandatory word, may be deprived of the obligatory force and become permissive in the context in which it appears."

In the case of Peter Muturi Njuguna v Kenya Wildlife Service [2017] eKLR, the court of appeal held that;

“From the foregoing, it is abundantly clear to us that where there is a specific procedure as to the redress of grievances, the same ought to be strictly followed. Having arrived at that conclusion, we are satisfied that the learned Judge of the High Court did not err by upholding the lower court's finding. Section 62 (1) of the Act is explicit on the procedure to be followed by any person who suffers bodily injury from or is killed by any animal. Such person, is required to make an application to the District Committee. It is good practice intended to foster public confidence and trust to let each organ perform its mandate. The appellant ought to have approached the District Committee first and followed the appellate system designed under the Act. The avenue of Judicial Review which the Committee is always subject to, was also available. Filing the claim before the District committee as the appellant appears to have done and filing a suit for negligence based on the same facts is certainly in abuse of court process. The trial court and the High Court were right in rejecting the suit. However, the two courts made orders dismissing the suit which is ordinarily the consequential order for matters heard and determined on merits. The correct order, in our view, ought to have been the striking out of the suit. The order for dismissal shall thus be set aside and substituted accordingly”.

So also I find that in this case there is a specific procedure as to the redress of grievances, the same ought to be strictly followed.Sending a demand letter was not enough. For these reasons I find that the preliminary objection has merit and I strike out this suit with costs.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 25TH DAY OF JULY 2018.

N.A. MATHEKA

JUDGE