[2022] KEHC 13697 (KLR)

Karen Ngong View Estate Association (KNVEA) v National Environment Management Authority (NEMA) & another (Constitutional Petition 100 of 2016) [2022] KEHC 13697 (KLR) (Constitutional and Human Rights) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13697 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Constitutional Petition 100 of 2016

HI Ong'udi, J

October 13, 2022

Between

Karen Ngong View Estate Association (KNVEA)

Petitioner

and

National Environment Management Authority (NEMA)

1st Respondent

Karen Village Limited

2nd Respondent

Ruling

1. The notice of motion dated November 2, 2021 was filed pursuant to articles 48, 50 and 159 of the Constitution, order 42 rule 6(1) and 51 rule (1), (2), (3) & (4) Civil Procedure Rules 2010, section 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of law, the applicant seeks the following orders:a.(spent)b.(spent)c.(spent)d.Pending the hearing and final determination of the 2nd respondent’s intended appeal against the ruling and order of learned judge J.A Makau dated February 18, 2021 in the Court of Appeal, an order of stay of proceedings herein do issue.e.(spent)f.costs of this application be provided for.

The 2nd Respondent / Applicant’s Case 2. The application is grounded on the applicant’s supporting affidavit of November 2, 2021 sworn by Anouska Athaide, the applicant’s director and the grounds on the face of the application.

3. The applicant’s case is premised on the fact that by a ruling dated February 25, 2021, this court dismissed the applicant’s notice of motion dated November 17, 2020 which sought to challenge the jurisdiction of this court to hear and determine the instant petition.

4. Aggrieved by the said ruling, the applicant preferred an appeal against it by filing a notice of appeal. In view of this the applicant asserts that this court gave directions on the disposal of the petition by way of written submissions and scheduled a mention on November 8, 2021 to take a judgment date.

5. It is deponed that the said directions differed from the directions agreed upon by the parties in their consent dated August 5, 2016 on the disposal of the petition by way of viva voce evidence owing to the nature and complexity of the matter.

6. He deponed that this was since the substratum of the petition involves allegations of noise and noise pollutions and the lack of public participation in the grant of the environment impact assessment license by the 1st respondent to it and so in its opinion the veracity of the same cannot be determined through affidavit evidence. In the same way it was averred that on February 20, 2020, this court locked out from the proceedings tenants of the development the subject of this suit by striking out their affidavits from the record

7. In light of this, the applicant averred that it stands to be heavily prejudiced if the matter is determined in the manner directed by this court as it shall be precluded from testing the veracity of the averments made by the petitioner through cross-examination in breach of its right to fair trial.

8. In addition, it was deponed that if the petition is heard and determined in the manner directed prior to the hearing the applicant’s intended appeal, shall be rendered nugatory and a mere academic exercise. To this end, it was noted that the orders were sought in the interest of justice and that no prejudice would be suffered by the respondents if the same were granted.

The 1st Respondent’s Case 9. The 1st respondent was not opposed to the application and so did not file any pleadings.

The Petitioner’s Case 10. The petitioner filed a preliminary objection/ grounds of opposition dated November 8, 2021and replying affidavit sworn by Josephat Mutunga Ngile on December 6, 2021 in response to the 2nd respondent’s application. The grounds are that: -1. The application is the 2nd application for stay in these proceedings. The court has no jurisdiction to sit on appeal against its own orders.2. The application is in contravention of the order of court made on February 25, 2021 whereby the 2nd respondent was granted 21 days stay and leave to apply for stay of proceedings in the court of appeal within 21 days of the said order.3. The application before court is incurably defective being an omnibus one which seeks the exercise of two different jurisdictions namely, stay of proceedings while at the same time seeking the recusal of the court, which cannot be entertained procedurally in one motion.4. The present application is a total abuse of court process on several grounds: -i.The 2nd respondent has always known the contents of the ruling and orders made on February 25, 2021. ii.The timing of the filing & service of the application is cleverly intended to scuttle the hearing hereof scheduled for November 8, 2021. iii.The 2nd respondent has on several occasions in the past evident from the court record taken steps to forestall the hearing and determination of the petition.5. There is absolutely nothing urgent in the above application other than the 2nd respondents pathological fear that this petition will finally be heard and determined by a fair-minded judge who has refused to be cowed or intimidated by the 2nd respondent.6. An application for recusal of the High Court judge should contain cogent and tangible grounds and not generalisations merely aimed at scaring a judicial officer from attending to his work dispassionately and without fear or favour.

11. In the replying affidavit while reiterating the contents of the preliminary objection / grounds of opposition, he deposed that the trial judge is not bound by the directions issued by a differently constituted court in the matter. Further that the 2nd respondent has failed to disclose that it was the petitioner who at the material time insisted on the cross examination of the 2nd respondent’s witness which the 2nd respondent vehemently opposed. He averred that the said narrative has now changed with the 2nd respondent now insisting on the need to cross-examine witnesses.

12. He deposed that contrary to the 2nd respondent’s assertion, the trial court has granted it and its surrogates, now termed as tenants the leave to appeal against the ruling of February 20, 2021. To date no substantive appeal nor the application for stay of proceedings been filed as directed by the court on February 25, 2021. Having failed to comply as herein before mentioned, the trial court was duty bound to issue directions on June 19, 2021 on the hearing and disposal of the petition.

13. He deposed that contrary to the assertion in the supporting affidavit, as to whether the outcome of the intended appeal shall be rendered nugatory or not, is a matter for the Court of Appeal to determine. Further that the exercise of the jurisdiction of this court in an application for stay of proceedings is well defined by order 42 rule 4 of the Civil Procedure Rules 2010. To wit;1. Whether the application has been made without inordinate delay. The current application is caught by the unexplained delay of 9 months.2. Substantial loss and damages shall result. We are not told what loss damages the 2nd respondent will suffer.3. Offer of security for the performance of the eventual decree. No offer has been made by the 2nd respondent in this regard.

14. That it is the petitioner and its members who stand to suffer loss and damage with the continued delay in the hearing and determination hereof on account of the fact that the 2nd respondent has continued building not just an arts and crafts center, but also a hotel with an over 100 bed capacity, restaurants, shopping centre and other associated amenities right in the midst of a quiet residential neighbourhood.

15. He avers that the court already found that the dispute herein is constitutional and the right to a quiet and serene environment is indeed a human right protected by the bill of rights and the Constitution of Kenya has granted the petitioner the right to sue for any breach of human rights to the constitutional and human rights division of the High Court notwithstanding the existence and jurisdiction of National Environment Tribunal.

16. That contrary to the assertions by the 2nd respondent, it is the petitioner who should complain about the failure of the court to grant it a fair hearing and access to justice. Further that the 2nd respondent was granted 21 days stay of proceedings in order to lodge an appeal and apply for stay at the Court of Appeal.

17. He deposed that the court was entitled to make the quoted remark since the 2nd respondent seemed not to appreciate what had happened. Further that the 2nd respondent has failed to disclose to this court that this was the 3rd objection to the jurisdiction of the court to hear and determine the constitutional petition.

18. He averred that the 2nd respondent is quoting parts of the judge’s ruling out of context in order to lend credence to the allegation that the learned judge was biased. There were pleadings and submissions filed by the petitioner on the basis whereof the court was entitled to draw the conclusion it made at paragraph 34 of the ruling. Further no sufficient grounds have been laid before court to enable it to recuse itself from these proceedings. Thus, the interest of justice will be better served if this court proceeds to hear and conclude this matter.

The 2nd Respondent/Applicant’s Submissions 19. The applicant through the firm of Walker Kontos Advocates filed written submissions dated January 31, 2022 where counsel identified the issues for determination as:i.Whether the petitioner's preliminary objection dated November 8, 2021 is indeed a preliminary objection.ii.Whether the applicant’s application is res judicata.iii.Whether the applicant has met the threshold for grant of the orders sought.

20. Counsel commenced by submitting that what constitutes a preliminary objection was well defined in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696 as one which is a pure point of law and ought not to raise substantive issues in the pleadings that may have to be determined by the court after perusal of the evidence. A similar definition was spelt out in the case of I.N & 5 others v Board of Management St G School Nairobi & another (2017)eKLR which counsel cited in further support.

21. According to counsel the petitioner’s preliminary objection falls short of this threshold for reasons that:i.It invites this court to verify from the record contested issues in the matter including whether the 2nd respondent had previously applied for stay in these proceedings.ii.It is in contravention of the orders made on February 25, 2021iii.It is fatally defective as it combines different prayers.According to him, these are not issues that are either agreed on or arise from the pleadings. That, the same are arguments that require the court to peruse the record to ascertain their veracity.

22. On the second issue, counsel noted that this assertion was based on the fact that this court allowed the 2nd respondent's oral application for stay of proceedings pending appeal after delivering its ruling on the February 25, 2021. Counsel stated that according to section 7 of the Civil Procedure Act and the case of Invesco Assurance Company Limited & 2 others v Auctioneers Licensing Board & another; Kinyanjui Njuguna & Company Advocates & another (interested parties) [2020)eKLRi.a matter is res judicata when the issue raised was directly and substantially in issue in the former suit;ii.that the former suit was between the same parties:iii.that the parties were litigating under the same title,iv.that the issue in question was heard and finally determined in the former suit,v.that the court which heard and determined the issue was competent to try the suit in which the issue was raised.

23. Counsel submitted that what had been sought was a limited oral stay of proceedings to enable the 2nd respondent file a formal application for stay of proceedings in this matter. It was therefore argued that the petitioner was mistaken in its assertion that this court cannot hear this application having allowed the oral application for stay of proceedings on the February 25, 2021.

24. On the final issue, counsel submitting on the factors that ought to guide the court in considering an application for stay of proceedings relied on the case ofGlobal Tours &Travels Limited; Nairobi HC winding up cause No 43 of 2000 where it was held that whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice. He submitted that some of the factors that guide the court in allowing an application for stay of proceedings include the prima facie merits of the appeal, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously.

25. According to counsel the 2nd respondent's intended appeal was not frivolous but meritorious with reasonable prospects of success. On the issue of time he argued, that it would not be good use of judicial time to proceed with the hearing of this matter knowing that upon hearing the appeal the Court of Appeal, would likely strike out the matter with costs.

26. Counsel concluded by stating that there would be real prejudice and loss suffered by the 2nd respondent if the application was not allowed. This is since the 2nd respondent's intended appeal would be rendered nugatory and a mere academic exercise if the matter is to be heard and concluded prior to the hearing of the intended appeal.

The Petitioner’s Submissions 27. The petitioner filed submissions dated 1January 8, 2022 through the firm of Messrs Kyalo & Associates, Advocates. Counsel submitted that the application raises two prayers. To wit, stay of proceedings pending the hearing and determination of an intended appeal against the ruling of this court delivered on February 25, 2021 and the recusal of the honourable Mr Justice Makau from the matter. The 2nd substantive prayer they argued has been overtaken by events since the honourable judge has opted out of the matter.

28. Two issues were raised namely;a.May a court of co-ordinate jurisdiction overturn or sit on appeal against order of the same court.b.Does the application for stay herein meet the required threshold of proof

29. On the first issue, relying on the cases of Sanitam Services (E.A) Limited v Rentokil (K) Limited & another [2019] eKLR and National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, counsel submitted that the court of co-ordinate jurisdiction cannot sit on appeal and overturn its very own orders. Thus, this court has no jurisdiction to entertain a 2nd application for stay after one has been heard and granted albeit for a limited period of time.

30. On the second issue, and relying on order 42 rule 4 of the Civil Procedure Rules, 2010, he submitted that the application has not addressed any of the criteria set therein. In any event, the application for stay of proceedings (before the wrong court) was made 9 months out of time, and no reasonable explanation for the delay has been made by the 2nd respondent. He adds that the 2nd respondent has not explained any loss it will suffer in the event, the final submissions herein are made and a judgment date given. The only reason advanced is that it will have been denied the right to cross -examine their witnesses. Lastly no offer of security has been made by the 2nd respondent for the eventual decree of this court.

Analysis And Determination 31. Having carefully considered the parties’ pleadings and submissions, the following issues arise for determination: -i.Whether the preliminary objection meets the threshold for the same.ii.Whether the 2nd respondent has met the threshold for grant of stay of proceedings.

Issue no (i). Whether the preliminary objection meets the threshold for the same. 32. The petitioner in response to the 2nd respondent’s application filed a preliminary objection/grounds of opposition which challenged this court’s jurisdiction to entertain the prayer for stay of these proceedings. This argument was based on the claim that this court cannot sit on appeal against its own orders. This is because the same application had already been dealt with following the ruling dated February 25, 2021. The 2nd respondent opposed the preliminary objection noting that the same concerned disputed facts hence cannot be deemed as a pure point of law.

33. This court takes cognizance of the definition of a preliminary objection as adopted in the Court of Appeal for East Africa case of Mukisa Biscuit Manufacturing Co Ltd(supra) as correctly observed by the 2nd respondent’s learned counsel in their submissions. Similarly, the court in the case of Dismas Wambola v Cabinet Secretary, Treasury & 5 others(2017) eKLR noted as follows:“A preliminary objection must first, raise a point of law based on ascertained facts and not on evidence. Secondly, if the objection is sustained, that should dispose of the matter. A preliminary objection is in the nature of a legal objection not based on the merits or facts of the case, but must be on pure points of law.Also seeOraro v Mbaja [2005] 1 KLR

34. The preliminary objection in this matter is founded on the notion that this court lacks jurisdiction to sit on appeal of its own orders. Jurisdiction has been pronounced time and again as one of the pure points of law that a party can invoke in a preliminary objection. Evidently, the issue of jurisdiction does not concern a factual aspect calling for proof by the parties. Considering this it is apparent that this preliminary objection has met the threshold of a pure point of law.

Issue no (ii). Whether the 2nd respondent has met the threshold for granting of stay of proceedings. 35. The application before this court is essentially seeking stay of proceedings pending the hearing and determination of an intended appeal filed by the 2nd respondent. The 2nd respondent was dissatisfied with the ruling by Makau J delivered on February 25, 2021 and dated February 18, 2021.

36. The 2nd respondent submitted that it had preferred an appeal against the ruling by filing a notice of appeal. The court gave directions for the disposal of the petition by way of written submissions and scheduled a mention for November 8, 2021 for purposes of taking a date for judgment. The 2nd respondent asserts that this was contrary to the directions agreed upon by the parties in their consent dated August 5, 2016 that the matter proceeds by way of viva voce evidence. It claims that it will be prejudiced if the petition proceeds on those directions and the appeal will be rendered nugatory and a mere academic exercise.

37. The petitioner on the other hand submitted that this is the second application for stay by the 2nd respondent and this court has no jurisdiction to sit on appeal against its own orders. That it is an abuse of the court process. To date no substantial appeal nor formal application for stay of proceedings has been filed as directed by the court. That the court was right in issuing the directions it gave on June 19, 2021. The petitioner further submitted that the 2nd respondent has not met the threshold for grant of the orders sought.

38. A perusal of the court record reveals the following: -i.After the court delivered the ruling on the 2nd respondent’s application on February 25, 2021, it granted the 2nd respondent leave to appeal and obtain an order of stay from the appellate court, within 21 days.ii.The matter was then set down for mention on June 19, 2021 to confirm the position and give further directions on the petition. No mention took place as directed.iii.The matter was next mentioned on July 14, 2021 in the absence of counsel for the 1st respondent. Counsel notified the court of the filing of a notice of appeal on March 10, 2021. However to date there has been no order for stay of proceedings obtained. Justice Makau proceeded to issue directions for the matter to be disposed of by way of written submissions. It was subsequently set down for highlighting of submissions on November 8, 2021.

39. It is hence not in dispute that this application is seeking stay of proceedings and that the petitioner is unhappy with the court for directing that the matter proceeds for hearing despite the 2nd respondent’s claim to have filed a notice of appeal.

40. The locus classicus case on stay of proceedings is Global Tours & Travels Limited; Nairobi HC winding up cause No 43 of 2000 where Ringera J (as he then was) stated the principles to be as follows: -“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously”

41. In Lucy Waithera Kimanga & 2 others v John Waiganjo Gichuri[2015] eKLR, considered;“(16)Are the reasons given sufficient for this court to impose a stay of proceedings" As a general rule, stay of proceedings should not be imposed unless the proceeding beyond all reasonable doubt ought not to be allowed to continue. The mere fact that an appeal is arguable alone does not fit the constitutional yardstick used to gauge whether a stay of proceedings should or not be imposed. That is only one of the factors which the court should consider. There are other equally important factors to consider namely;i)The need for expeditious disposal of cases and the impediment the stay would place on the right of the respondent to have the case determined expeditiously;ii)The interest of justice in the case; the pros and cons of granting or not granting the order;iii)The prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one,iv)The scarcity and optimum utilization of judicial time andv)Whether the application has been brought expeditiously”also see:i.Kenya Power & Lighting Company Limited v Esther Wanjiru Wokabi [2014] eKLR,ii.Gichuhi Macharia & another v Kiai Mbaki & 2 others [2016] eKLR.

42. The principles to be considered before granting stay of proceedings have clearly been set out in the above cited cases and I am in total agreement with them.

43. Based on the history of this file it is not disputed that Makau J, granted the 2nd respondent leave to file an appeal and to obtain an order for stay of proceedings from the appellate court. The question would be whether the 2nd respondent has indeed complied with those directions.

44. In my humble view, although the 2nd respondent has so far filed a notice of appeal dated March 8, 2021 there is no substantive appeal that has been filed at the Court of Appeal against the said ruling. The 2nd respondent has not adduced any evidence of the same, neither has he even furnished this court with the memorandum of appeal for this court’s consideration. There is also no evidence showing that the 2nd respondent obtained any orders of stay from the Court of Appeal. The 2nd respondent has treated this matter very casually. I therefore find that it would not be in the interest of justice to stay the proceedings herein.

45. The next issue would be whether the 2nd respondent has established a prima facie arguable appeal dated March 8, 2021. There is no other document/documents which has / have been filed in the Court of Appeal besides the notice of appeal. Had that been done copies of the document /documents would have been filed with the application or thereafter.

46. On this point, I am guided by the case of Mukunya Mugo ‘A’ & another v Elizabeth Mugure Mukunya [2019] eKLR, where the court stated;15. On the April 18, 2018 the applicant moved the court seeking for orders for setting aside the proceedings, that is to say the evidence of the plaintiff taken down during the exparte hearing on the October 11, 2017. The court delivered its considered ruling on the July 31, 2018 dismissing the said application. It is this application that the applicants intend to appeal against in the Court of Appeal. I have seen a notice of appeal filed on August 8, 2018 in the Environment and High Court of Murang’a (perhaps to mean the ELC court at Murang’a?). The applicant has not attached the memorandum of appeal or the specific orders being appealed against. The court is therefore unable to deduce if the applicant has an arguable appeal.

47. Without the memorandum of appeal this court is not able to assess whether the appeal is arguable. On whether the application has been brought expeditiously, in my humble view, this application for stay of proceedings was filed eight (8) months after the ruling and similar orders issued by Makau J on February 25, 2021. For avoidance of doubt, the court directed that the 2nd respondent obtains a stay of proceedings order from the appellate court, and that has not been done. The 2nd respondent has not demonstrated that he sought for the said orders from the appellate court.

48. Making this court consider the present application for stay while there were earlier orders issued on the same, will be tantamount to this court sitting on appeal. In this regard I find that this court lacks the jurisdiction to do so.The 2nd respondent has also not sought a review of the said orders. Having failed to comply with the court orders of February 25, 2021 I do not find it helpful determining whether the application was filed expeditiously or not.

49. This is an old matter which was field in 2016 and has never proceeded to hearing. There is no good reason for further delays. I have perused the record and I note that the issue of jurisdiction was raised severally before Justice Mativo (as he then was) and parties were told by the court that they would address it on the same.

50. On April 4, 2016 the late Onguto J in the presence of counsel for all the parties stated this:“Section 13 of theELCAct 2011(as amended in 2012) is relatively clear. This matter ought to be handled by the ELC. I consequently exercise my ….jurisdiction and rather than strike matter out direct that it be transferred to the ELC Nairobi for final disposal. It is only proportionate that it be so dealt with. Let parties mention matter before the presiding judge (Okong’o J) on April 12, 2016. ”

51. The matter was then mentioned severally before the ELC presiding judge and returned to the CHR division for review of the order by Onguto J. On June 20, 2017 the issue of jurisdiction was raised afresh before Mativo J and in his directions stated that on July 11, 2017 parties would be required to show cause why the matter should not be transferred to the ELC. On the July 11, 2017 when the matter came up he reiterated his sentiments of June 20, 2017. Same thing happened on October 17, 2017. On November 21, 2017 parties agreed to address the court on the issue of jurisdiction on March 7, 2018.

52. On the said date the counsel briefly addressed the court and this is what Mativo J. (as he then was) directed.“I direct that the matter proceeds in this court in view of what the counsels are saying about the decision by Onguto, J. However counsel for the 1st respondent shall be at liberty to raise the issue of jurisdiction in their defence and the court will in the final judgment make a finding on the question of jurisdiction.”

53. I have keenly perused the record and I do not find any order directly reviewing Judge Onguto’s decision made on April 4, 2016. In as much as Mativo J allowed the parties to proceed with the petition before this court he clearly insinuates in his directions that there is still an issue with this court’s jurisdiction in handling the matter. How can the issue of jurisdiction be handled in the judgment after all parties have testified?

54. Another issue raised by the 2nd respondent is the direction to have the matter proceed by way of written submissions. This direction was issued by Makau J on July 14, 2021. Before that on February 27, 2017 and on March 7, 2018 Mativo J had given directions to the effect that the matter would proceed by way of viva voce evidence.

55. The 2nd respondent is aggrieved by Judge Makau’s directions issued on July 14, 2021 as regards the hearing. Unfortunately the 2nd respondent has not sought any review on the said orders. That itself would not be a reason for this court to stay the proceedings.

56. Upon considering all the issues outlined above I am satisfied that the present application lacks merit. The 2nd respondent /applicant is at liberty to pursue its appeal in the Court of Appeal and any other orders.

57. The upshot is that both the application dated November 2, 2021 and the preliminary objection dated November 8, 2021 lack merit and are dismissed with costs. This matter will be mentioned on November 15, 2022 for counsel to fully address the court on the issue of jurisdiction.

DATED AND SIGNED THIS 11TH DAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.H. I. ONG’UDIJUDGE OF THE HIGH COURTDELIVERED AND SIGNED THIS 13TH DAY OF OCTOBER, 2022 AT MILIMANI, NAIROBI.MUGURE THANDEJudge of the High Court