[2023] KEELC 16119 (KLR)

Great Meru Timber Manufacturers Association v Kenya Forest Service & 3 others (Constitutional Petition E002 of 2022) [2023] KEELC 16119 (KLR) (15 March 2023) (Ruling)

Neutral citation: [2023] KEELC 16119 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Constitutional Petition E002 of 2022

CK Nzili, J

March 15, 2023

IN THE MATTER OF ARTICLES 2, 3, 6, 10, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 35, 40, 43, 47, 48, 50, 165, 186 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 40, 43, 46, 48 OF THE CONSTITUTION AND RULES 11 AND 13 OF THE CONSTITUTION OF KENYA (PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS) PRACTICE AND PROCEDURE RULE 2013 AND ALL OTHER RELEVANT ENABLING POWER AND PROVISIONS OF THE LAWS OF KENYA AND IN THE MATTER OF: ARTICLE 21 OF THE STOCKHOLM DECLARATION OF 1972 AND IN THE MATTER OF THE FOREST CONSERVATION AND MANAGEMENT ACT 2016 AND IN THE MATTER OF THE FORESTS (PARTICIPATION IN SUSTAINABLE FORESTS MANAGEMENT) RULES 2009 AND THE FORESTS (HARVESTING) RULES 2009 IN THE MATTER OF FAIR ADMINISTRATIVE ACTION ACT 2015

Between

Great Meru Timber Manufacturers Association

Petitioner

and

Kenya Forest Service

1st Respondent

Chief Conservator of Forests

2nd Respondent

The Cabinet Secretary for Environmental and Forests

3rd Respondent

The Hon. Attorney General

4th Respondent

Ruling

1. When this matter came for directions on January 26, 2023for the petitioners to address the court on whether the petition was still sustainable following judgments in similar matters as indicated in the ruling delivered on December 14, 2022, Mr. Mutuma and Mr. Ashaba advocates for the petitioner informed the court that parties had reached an out of court settlement and filed a consent, which they asked the court to adopt.

2. Mr. Nguyo advocate for the respondents confirmed the same position but indicated that there were other matters in Nyeri and Nairobi law courts, all following the type of a consent that had been filed in this court. Counsel stated that the consent filed was however silent on the said matters but nevertheless urged the court to adopt it and proceed to issue a decree. The court reserved its ruling forMarch 15, 2023.

3. This being a constitutional petition, the court is mandated to consider the juridical effect of the intended consent to compromise the petition either partially or fully. Further, while this ruling was pending delivery the petitioner filed a notice to withdraw the petition dated January 27, 2023with no order as to costs.

4. Rule 27 of the Constitutionof Kenya (Protection of Fundamental Rights & Freedoms) Practice & Procedure Rules, 2013 (Mutunga Rules), provides that no petition can be withdrawn without the leave of court. This is for good reasons since there is always a public interest element in a constitutional petition hence a notice of withdrawal is not automatic.

5. In the case of Harry John Paul Arigi & 2 others vs Board KPA & 2 others(2016) eKLR, the court held that withdrawal of a petition was not automatic and could not be achieved merely by notice, since the rule provides that the court must also consider the juridical effect of that decision to withdraw. Under sub-rule (3) thereof and despite the wish by the petitioner to withdraw or discontinue a petition, the court may for reasons to be recorded proceed with the hearing of the petition.

6. The notice of withdrawal, filed herein has excluded the reasons to withdraw the petition. There is also no evidence that the notice was served upon the respondents who ultimately have been prejudiced by the petitioner’s actions of filing numerous petitions over the same subject matter in different courts as confirmed by Mr. Nguyo advocate.

7. In the case of Stephen Mbugua Mwagiru vs Chief Land Registrar and 4 others; Rosemary W. Njau & 2 others (interested party)(2019) eKLR, the court cited with approval Kofinaf Co. Ltd & another vs Nahashon Ngige Nyaga & 20 others (2017) eKLR where the court was faced with a situation in which the petitioner was alleged to have been in the habit of playing games by filing petitions, withdrawing the same before they were heard and refilling afresh on the same issues. The court declined to allow for the withdrawal on account of an abuse of the court process by seeking to continuously engage the respondents in litigation which was by itself prejudicial.

8. Regarding consent to settle a petition, in Geoffrey M. Asanyo & 3 others vs AG(2018) eKLR, the Supreme Court of Kenya was considering among other issues, whether the Court of Appeal was right in declining to adopt a consent by the parties that would have settled the matter in line with article 159 (2) of the Constitution, on alternative dispute resolution. The court cited with approval Council of County Governor’s vs Lake Basin Development Authority and 6 others (2017) eKLR, where it was held that alternative dispute resolution processes were complementary to the judicial process and by virtue of article 159 (2) (6) of the Constitution the court was obligated to promote them. Additionally, the court cited with approvalZachariah Okoth Obado Oyugi vs Edward Okang’o & 2 others (2014) eKLR on the duty by the court to respect, uphold & defend the purpose and principles of the Constitution among the Alternative Dispute Resolution (ADR) mechanisms. Additionally, the court cited with approval from the Council of Governors vs Senate and another(2014) eKLR, on the liberty of parties to withdraw a matter so as to pursue an out-of-court settlement, and that to deny such a right would be contrary to the constitutional principle of ADR.

9. The court further cited with approval SC. Holding of Nigeria in Star Paper Mill Ltd & another vs Bashiru Adetunji & others(2009) 7 1law/SC/292/2002, where the court said that it was a cardinal principle to allow parties to amicably resolve disputes in order to cement their relationship and put a stop to litigation. Additionally, the court said that it had discretion in recording the terms of the settlement to ensure that the same was not vague, ambiguous, and or unascertainable.

10. The Supreme Court of Kenya underscored the fact that the epitome of justice between parties before a court of law was when parties finally and voluntarily come to an amicable settlement of the dispute between them and that the court only comes in as an impartial arbiter where parties have failed to agree amongst themselves hence it should not close the door to continue negotiating since parties must remain at liberty to withdraw or consent to the terms of settlement.

11. Further, the court observed it was alive to some parties who may come to the court by the filing of proceedings as means of coercion for other parties to submit to negotiation, which amounts to an abuse of article 159 2 (e) of the Constitutionsince Alternative Dispute Resolution should always be entered into without malice and with free will.

12. As to whether the court should proceed to deliver a judgment in a matter that parties have settled and informed the court on the same, the Supreme Court of Kenya held that courts of law were not academic institutions to engage in abstract deliberations since they only resolve legal issues emanating from live disputes. Therefore, the court said that where parties consent to the settlement of their disputes, the court reserves no right to insist on determining the matter. The court held that the fact that a judgment was ready after a lot of judicial work and industry has been expended, should not be used as a reason to deny the parties an opportunity to explore an alternative dispute resolution, however frustrating that may be, which essentially was the price judges have to pay in pursuing the safeguarding of access to justice and the rule of law. The court remitted the file to the Court of Appeal to adopt the consent.

13. In the case of Serve in Love Africa Trust (Sila Trust) v County Government of Uasin Gishu (2016) eKLR, the court was considering among other issues, a consent adopted partially compromising the petition without involving some of the parties adversely affected by its terms. The court held that Rules 21 & 29 Mutunga Rules must be followed in the filing and conduct of constitutional petitions and that unlike in conventional civil suits where parties are at liberty to compromise suits without involving courts, consents in petitions filed under article 22 of the Constitution, can only be adopted into with leave of court and a court may overrule the parties under Rule 27 (3) on recorded reasons. The court found a consent order endorsed by a Deputy Registrar as invalid.

14. Further, in John Juma and 2 others v Patrick Lihanda & 3 others; Zedekiah Overa and 466 others (interested parties) (2019) eKLR, at issue was whether the adoption of a mediation agreement was a mandatory or a routine function of the court. The court held, citing with approval Geoffrey M. Asanyo (supra) that a consent can be set aside on grounds of misrepresentation, fraud, or abuse of the process of the court. By parity of reasoning the court held that it could decline to adopt a settlement if there was evidence to prove that the same was obtained inter alia through fraud, misrepresentation or abuse of the court process. In so doing, the court held it had the discretion of refusing to record a settlement agreement and until the adoption is made, the court cannot be said to be functus officio.

15. Applying the foregoing binding caselaw, Rules 27 (2) & 29 of the Mutunga Rules require that the court in allowing a withdrawal and or adoption of a consent on settlement to consider the juridical effects of that decision.

16. The word ‘Juridical’ under Black Law Dictionary11th Ed Byant Gardener page 1016, is defined as relating to or involving judicial proceedings or the administration of justice or relating to or involving law while at page 651 thereof, ‘effect’ ‘is defined as a result, outcome or consequence, the result that an instant between parties will produce on their relative rights or that a statute will produce on existing law as discovered from the language used, forms employed or other materials of construing it.

17. In this petition the consent to settle the petition was filed on 25. 1.2023 following an aborted attempt by the respondents to transfer and or consolidate the petition with Nyeri Constitutional Petition No. E013 of 2021, Nakuru Petition No. E19 of 2021 and Nairobi Constitutional Petition No. E053 of 2021, said to be based on similar issues, against the same respondents and filed by the petitioner herein. The court declined the transfer and consolidation since the Nairobi petition had been determined through a judgment delivered on 21. 10. 2022.

18. The court thereafter asked the petitioner herein to address it on the sustainability of this petition given, that the Nakuru petition had also been determined as Nairobi ELC No. 1 of 2022 through a judgment delivered on October 21, 2022. More importantly, the Nairobi ELC No. E053 of 2021 had declared invalid the acts by the respondents to set aside, lift or replace the November 2018 extension of the moratorium on logging activities in public and county forests and termed them as in violation of the Constitutionfor lack of an Environmental Impact Assessment.

19. The court had also issued a conservatory order against the 1st and 2nd respondents staying further implementation of the notices titled an invitation to tender. In both petitions, the 1st & 3rd respondents were parties.

20. Against this backdrop, clause (a) of the consent seeks to lift the moratorium dated February 24, 2018 and to pave the way for the petitioners, who in paragraph 2 of the petition is described as licensed saw millers and timber wood dealers across the Republic of Kenya engaging in commercial harvesting of timber in the public, county and private forests. Prayers No. (III) and (iv) of the petitions were seeking for the court to declare gazette notice volume (CXX No. 28 dated 20. 2.2018 as unconstitutional. Clauses Nos. (f) (g) (h) & (i) of the consent, if allowed effectively grants the petitioner reliefs which were never pleaded, prayed for, and or contemplated in the petition dated February 8, 2020 yet this court is called upon by the respondent’s counsel on record to proceed to issue a decree after adopting this petition.

21. This court sitting as a constitutional court has a limited jurisdiction to hear and determine applications for redress of a denial, violation, infringement or threat to a right or fundamental freedom in the Bill of Rights in order to issue the appropriate reliefs as contemplated under Article 23 (3) of the Constitution.

22. The implications of the terms of the consent are broad, far, and wide given the constitutional statutory and policy framework governing the respondents under articles 19, 20, 21, 28, 35, 40, 42, 47, 60 (1) (c) (e), 62 (1) (g), 63 (d), 64, 69 (1) & (2) 70, 71, 72 of the Constitutionas read together with sections 56, 57, 70 of the Forest Management & Conservation Act No. 34 of 2016 and Rules made thereunder of 2009 and the Fair Administration Action Act.

23. In my considered view, even though parties are at liberty to attempt an out-of-court settlement under article 159 of the Constitution, they cannot consent to what is illegal, or against public policy and which is unconstitutional. The court is bound by article 1 (3) (c) of the Constitutionin exercising the sovereign power of the people, has to comply with the general rules of international law; must abide by national values and principles of governance under article 10; and is supposed to uphold and enforce the Bill of Rights while minding of rights and freedoms of other people. Further the court has to be alive to the principles of land policy and uphold obligations in respect of the environment and more importantly while enforcing environment rights make appropriate direction.

24. In De Smiths’ Judicial Review 6th Edition paragraphs 5 pages 225 – 226, it is stated that a court cannot make an order, not in public interest, as quoted in Republic vs DPP & another; Chief Magistrate’s Court at Malindi & another (Interested parties) Exparte Salim Omar Mohamed(2020) eKLR.

25. A court of law cannot sanction an illegal act. A consent cannot purport to take away or ignore a party’s statutory mandate, obligations, and or responsibilities. Similarly, a consent order cannot give away statutory rights and obligations to non-statutory bodies to dictate how the statutory body would undertake its obligations. Similarly, a consent order cannot possibly suspend statutory duties, rights and obligations. Additionally, a party cannot enter into an agreement that limits constitutional powers and obligations. See Republic vs D.PP & 2 others Exparte Peter Mulwa Mbithi (2012) eKLR.

26. In the case of Karanja Karenju vs AG (2012) eKLR the court cited with approval KCB vs Benjoh Amalgamated Ltd (1997) eKLR, where the court held that a consent could be varied or discharged inter alia, if it was contrary to the public policy of the court or was entered into without sufficient material facts or generally on grounds capable of setting aside a contract or was res-judicata. See Tom Shavisa & another vs Hazina Madeizi Speaker County assembly of Vihiga & 3 others(2021) eKLR,HFCK & another vs Sharok Kher Mohamed Ali Hirji & another(2021) eKLR.

27. Moreover, the parties herein are privy and aware, especially the respondents, of the judgments of the court of concurrent jurisdiction relating to the issues forming part of the consent which they are essentially contradicting or seeking for nullification by this court as if it was seating on appeal against such judgments.

28. In my considered view, this court would be failing in its duty to uphold the Constitutionand the rule of law to adopt the consent as it is, in the name of encouraging and promoting Alternative Dispute Resolution. The two judgments aforementioned to the best of my knowledge have not been appealed against or set aside by way of review. This court’s role is simply to adopt or not to adopt the consent as it is. The court chooses the path of not adopting it due to the foregoing reasons. See Zameen Land & Sand Co. Ltd vs Jirani (ELC E005 of 2021) (2022) KEELC 14540 (KLR) (21 October 2022) (Ruling).

29. As to the whether this court should allow the discontinuance of the petition by virtue of the notice of withdrawal dated 27. 1.2023, it is instructive to note that this notice was filed a day after the consent to settle was filed and the court asked to adopt it. The reasons for the withdrawal have not been shared out with the court. It is apparent that the petitioner was prompted to file a notice of withdrawal after this court deferred its ruling. Given that no reasons accompanying the withdrawal have been stated, coupled with the fact that similar decisions have been made touching on the issues, the court takes the view that it would serve no purpose to sustain this petition. Consequently, I find the consent dated January 24, 2023 unconstitutional and proceed to dismiss the petition as an abuse of the court with no orders as to costs.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 15TH DAY OF MARCH, 2023In presence of:Miss Mwiti for Mutuma for petitionerHON. C.K. NZILIELC JUDGE