[2023] KEHC 22327 (KLR)

Karen Ngong View Estate Association (KNYEA) v National Environmental Management Authority (NEMA) & another (Petition 100 of 2016) [2023] KEHC 22327 (KLR) (Constitutional and Human Rights) (22 September 2023) (Ruling)

Neutral citation: [2023] KEHC 22327 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Constitutional and Human Rights

Petition 100 of 2016

LN Mugambi, J

September 22, 2023

Between

Karen Ngong View Estate Association (KNYEA)

Petitioner

and

National Environmental Management Authority (NEMA)

1st Respondent

Karen Village Limited

2nd Respondent

Ruling

1. The 2nd respondent (applicant herein) filed a Notice of Motion application dated 4th July, 2023 under a certificate of urgency of even date.

2. The nature of the urgency was indicated in the certificate fo urgency as follows: -“1)On 8th August, 2016 parties herein by a consent recorded in court agreed on the disposal of this matter by way of viva voce evidence whereby the matter was fixed for full hearing in various days including 27th July, 2017, 30th August, 2018 and 7th March, 2018 but the matter did not proceed on those days.2)On 15th June 2023, this court delivered a ruling setting aside the consent entered by parties herein on viva voce hearing of the matter on 8th August, 2016 and directed the parties to file written submissions on the same.3)The 2nd respondent is aggrieved by the said ruling and intends to appeal against the same at the Court of Appeal….”

3. The prayers in the Notice of Motion were stated as follows: -1)The application be certified urgent – (spent).2)The application be heard in on priority basis- (spent).3)Pending the hearing and final determination of this application, there be a stay of proceedings herein.4)This Honourable court be pleased to extend time for the 2nd respondent to file a Notice of Appeal out of time against the ruling delivered in the matter on 5th June, 20235)Any other orders as this court many deem just and fit to issue.

4. The application was supported by the grounds on the face of the application and the affidavit Anouska Athaide (a Director of 2nd Respondent) sworn on 4th July, 2023.

5. The deponent echoed the grounds relied upon in the application. In brief; the deponent avowed that on 8th August, 2016; the parties herein agreed that this matter will be disposed of by way of viva voce evidence and thus filed their respective affidavits in preparation of the hearings. The matter was subsequently scheduled for hearing on three occasions namely, on 7th July, 2017, 30th August, 2018 and 7th March, 2018 but it did not take off. He proceeded to swear that on 15th June, 2023, the said consent order was set aside despite his advocate bringing to the attention of the Court the said consent of 8th August, 2016 on their agreed mode of hearing. That the court went ahead and even directed the parties to highlight their written submissions to the petition on 12th July, 2023.

6. The 2nd respondent swore that it was aggrieved by the said ruling thus seeks to appeal the same before the Court of Appeal.

7. The 2nd Respondent explained that the notice of appeal is required to be lodged within 14 days but that it was not possible to do so as its Director had travelled out of the country to the United Kingdom for an extended period hence was unable to instruct its advocates in time to lodge an appeal thus the failure to file the notice of appeal in time was not intentional since the Director could not access their email during his absence from the country.

8. The 2nd respondent further swore that the intended appeal has merit since the court has no jurisdiction to set aside the consent suo moto, and because the court erred by failing to give effect to the intention of the parties to prosecute the petition viva voce. That this also denied the respondent a chance to test the opponent’s evidence through cross-examination which amounts to shutting the 2nd respondent from the seat of justice without justifiable cause. Finally, that the application is made without undue delay and that the petitioner/respondent would not be prejudiced by the orders sought.

9. The petitioner/respondent filed a replying affidavit sworn by Francis Kariuki on 12th July, 2023.

10. The petitioner protested that although the application is dated 4th July, 2023, it was only filed on 10th July, 2023; the objective being to cause an adjournment of the case which the respondent knew was coming up for the highlighting of submissions on 12th July, 2023.

11. It deposed that despite the 2nd respondent causing these proceedings to be adjourned through this application; it has continued putting up structures in the suit property, the latest being a 100-bed capacity hotel, all in the name of building an Art and craft Centre.

12. That as this is happening as NEMA, the Public watchdog on matters environment continues to maintain silence as a quiet residential neighbourhood is gradually being turned into a commercial hub.

13. That contrary to paragraph 6 of the replying affidavit, the setting aside of the consent order in these proceedings was not made by this court on 15th June, 2023 as indicated by the 2nd Respondent. That this court only pronounced itself on the issue of highlighting of submissions since setting aside of viva voce hearing of the suit had already been done by Hon. Justice A Makau (Retired) way back on 14th July, 2021.

14. The 2nd respondent did not appeal against that ruling, hence is merely wasting time by purporting to seek leave to appeal this time round.

15. That petitioner further stated that the claim by the 2nd respondent that its Director was unable to instruct the advocate due to the fact that the said Director had travelled to United Kingdom is not a sufficient reason for the delay in the light of the advent of modern information technology.

16. The petitioner further stated that it stands to suffer substantial prejudice as its over 200 members have watched in horror as the 2nd respondent continues to make a mockery of the Kenyan judicial process.

17. In a swift rejoinder; the 2nd respondent asserted in its supplementary affidavit sworn on 17th July, 2023 that it has a right to a fair hearing including the right to lodge an appeal.

18. That allegations that it has continued to build structures are not backed by any evidence and are pure conjectures intended to irritate the 2nd respondent.

19. The 2nd respondent affirmed that the ruling of 15th June, 2023 is the one that formally vacated the consent order recorded on 8th August, 2016 on the mode of hearing of this matter by viva voce evidence and that the failure to lodge notice of appeal is not intentional or deliberate since even the court is yet to supply the typed proceedings to enable the same to be lodged.

20. The 2nd respondent reiterated the position that the Directors were on business trip to United Kingdom with limited access to emails hence delay in instructing its advocates.

Submissions by the 2 nd Respondent/Applicant 21. In the submissions of the 2nd respondent/applicant; the 2nd respondent/applicant Advocate proceeded to give a brief overview of the facts which he summarized as follows: -“… The facts on which the present application is premised are set out in the Supporting Affidavit of Anouska Athaide sworn on 4th July 2023 and the Supplementary Affidavit of Anouska Athaide sworn on 17th July 2023. Briefly put, on 8th August 2016, the parties herein by a consent recorded in court agreed on the disposal of this matter by way of viva voce evidence. This matter was subsequently fixed for hearing on a number of occasions but the same did not proceed for various reasons. On 25th February 2021, Learned Judge Makau after delivering a ruling on an interlocutory application directed that the parties herein file submissions on the main Petition.4. On 15th June 2023, the 2nd Respondent's Counsel orally applied for the variation of the directions given by Learned Judge Makau on 25th February 2021 to have this matter proceed by way of viva voce evidence. By a ruling delivered on the same day, Learned Judge Mugambi delivered a ruling directing that the consent order recorded in court on 8th August 2016 had been vacated and that the directions issued on 25th February 2021 are to take effect…”

22. In its submissions, the 2nd respondent submitted that it has met the threshold for grant of leave to file notice of appeal out of time and cited the Supreme Court of Kenya in County Executive of Kisumu Vs County Government of Kisumu & Others (2017) eKLR which cited with approval the case of Nicholas Kiptoo Arap Korir Salat Vs IEBC & 7 others Application No. 16 of 2014 (2014) eKLR regarding the factors to be considered in deciding an application of this nature, namely: -“1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court:3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis:4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;5. Whether there will be any prejudice suffered by the respondents if the extension is granted;6. Whether the application has been brought without undue delay; and7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.

23. The 2nd respondent asserted that failure to file notice of appeal in time was not intentional as it was occasioned by its Directors absence from the country for a long time which made it difficult to instruct their advocates due to difficulties in accessing the email of the 2nd respondent a fact which the petitioner had not controverted. The 2nd respondent relied on the case of Mohammed & anothervsHaidara (1972) EA 166 which held that facts deposed to on oath that are controverted are to be taken as the truth, a position that was also cited with approval in Republic Vs Nairobi City County ex parte B Concept Limited T/A B Club (2017) eKLR.

24. It was also argued on behalf of the 2nd respondent that the grant of leave will not occasion any prejudice to the petitioner as she will have a chance to defend the appeal once filed. Further, that the present application has been made without delay since the decision was made on 15th June, 2023; and the present application was filed on 10th July, 2023 a delay of only 24 days which counsel submitted was not unreasonable.

25. The 2nd respondent contended that the appeal is important as it is intent on protecting its rights to a fair trial for if it is not allowed, it would essentially take away its right to cross-examination of the petitioner on the various averments made in the petition.

Petitioner/Respondent Submissions 26. The petitioner commenced its submissions by putting forward what it considered to be the issues for determination as follows:-i.Whether this honourable court should exercise its discretion to extend time for the Applicant to file a Notice of Appeal?ii.Whether the application before this court is an abuse of court process?iii.Who should bear the costs?

27. In submitting on the 1st issue; the petitioner insisted that the applicant ought to demonstrate that there are good and substantial reasons for the delay and that there is a prima facie reason why the intended appeal should be heard.

28. Just like the 2nd Respondent/applicant, the petitioner/respondent also relied on the principles enunciated in Nicholas Kiptoo Arap Korir Salat Vs Independent Electoral and Boundaries Commission & 7 others (2021) eKLR. The petitioner submitted that the claim that the 2nd respondent Directors’ travel to the United Kingdom prevented them from giving timely instructions to their advocate to file the notice of appeal cannot stand in today’s digital age when communication barriers have been greatly overcome by various means of communication such as telephone calls, video calls, conferencing and email correspondence.

29. On the issue that there were facts that were not controverted which should be taken as the truth, the petitioner asserted that in its replying affidavit dated 12th July, 2023; it had indicated that travel to United Kingdom by 2nd respondent’s directors was not a good reason to allow leave to file notice of appeal out of time. In any case, the petitioner submitted that no evidence of travel had been presented before the court to substantiate that allegation either.

30. The petitioner’s counsel observed that the applicant had already caused numerous adjournments purposefully to delay these proceedings and termed the present application a continuation of the abuse of the court process. Counsel for petitioner thus contended that granting a stay of these proceedings by extending time to file the notice of the appeal will further delay the resolution of this matter, which had been in court for over seven (7) years already.

31. The Petitioner’s counsel drew attention of the court to the fact that directions for filing of written submissions were given in February, 2021; hence whatever that remained was therefore for the parties to highlight their submissions and no more.

Determination and Analysis 32. The main issue in this notice of motion application is whether this court should extend time for filing of Notice of Appeal to the 2nd respondent against what he described as the decision of this court to set aside the consent order of the parties entered on 8th August, 2016 to have this matter disposed of by viva voce evidence.

33. Before delving into whether or not this court should grant the leave sought by the applicant; it is important to that I critically examine the facts that the 2nd respondent relied on to prosecute this application.

34. A thorough examination of the facts contained in the affidavit of the 2nd respondent/applicant vis-a-vis the summary of facts that the advocate for the 2nd respondent/applicant captured in his submissions to argue the application shows that there is variation in the two narratives.

35. In the affidavit of the applicant and also in the grounds cited in support of the Certificate of urgency, the applicant was uncompromising that it is this court that made the decision that vacated the consent order dated 8th August, 2016 where the parties had agreed to dispose the petition by viva voce evidence.

36. However, in the brief summary of facts that the 2nd respondent advocate captured in the introductory part of his submissions, he acknowledges that prior to this court taking over this matter, Justice A Makau had already directed the parties way-back on 21st February, 2021 to file written submissions so as to dispose this matter. The order was made despite the aforesaid consent. He then says that it is those directions of Justice Makau that he requested this court on 15th June, 2023 to vary and this court declined.

37. The correct factual position is the version he summarizes in the submissions. This is what the court record bear witness, is unfortunately not what the affidavit in support of the application gives. The facts in the affidavit are thus erroneous and misleading in so far as events leading to the ruling of 15th June, 2023 are concerned.

38. The truth of the matter is that despite the existence of the said consent order which had been entered into on the 8th August, 2016; on 21st February, 2021 Justice A Makau gave fresh directions that were inconsistent with the consent order, and the other truth is that the Judge did not even do so on his own motion, it was upon an oral application by Mr. Kyalo Mbobu in the presence of the respondents counsel that these fresh directions were given and were not contested by the 2nd Respondent.

39. Mr. Kyallo Mbobu, advocate for the petitioner orally moved the court to have the matter proceed by way of affidavit evidence. These proceedings of 21st February, 2021 are well captured by the Justice Makau as follows: -“Kyalo Mbogu: Mention scheduled for 19th October, 2021. Application for stay was granted for 21 days to lodge appeal. I have not been served with appeal. We can proceed by way of affidavit evidence. I have instructions for court to visit the locus in site.Mr. Wafula: We filed notice of appeal on 10th March, 2021 and we awaited for typed proceedings. We received a dismissal notice. We pray that the matter be transferred to ELC or we proceed with our appeal. We want to file an application for transfer. We wrote to the Deputy Registrar on 18th May, 2021. Mr. Mbobu: Matter for mention to confirm status of the file. Nothing has been filed in the Court of Appeal. The stay not made as directed. I pray for directions on how to proceed with the matter. The 2nd respondent is not interested in prosecuting this matter.Court: There is no evidence of filing of an appeal nor order of stay of these proceedings so far. I direct the petition be determined by way of written submissions. The petitioner do file and serve submissions within 21 days. The respondent do file submissions within 21 days from date of service. Highlighting of submissions on 8thNovember, 2021. SignedJustice A Makau”

40. It is crystal clear from the above proceedings of 21st February, 2021, before Justice A Makau (Rtd), that Counsel for the Petitioner orally and quick-wittedly prompted the court to vacate/vary the previous directions of 8th August, 2016 on the mode of hearing in the presence of the counsel for the 2nd respondent who did not voice any objection to the application. The court granted the request and went ahead to give directions on the filing of written submissions. No appeal or review was made by the 2nd respondent consequent upon issuance of the new directions.

41. It is therefore incorrect and a gross misrepresentation of facts by the applicant to swear that it this court that vacated the consent order of 8th August, 2016 by its ruling delivered on 15th June, 2023. To that extent, the application is premised on the wrong facts.

42. While rejecting the 2nd respondent oral application on 15th June, 2023 this court restated the above position as follows: -“… although Mr. Wafula points out that a consent to have the matter heard viva voce was entered on 8th August, 2016, the parties subsequently, appeared before the court severally and going by the voluminous nature of these proceedings, neither of the parties seems to have insisted on this position before my predecessor. As I was taking over this matter there were directions already in the file as to how this matter is to proceed…”

43. The applicant is thus insisting on appealing a decision that vacated the consent in his presence before Hon. Justice A Makau way back on 21st February, 2021. He never applied for the review or appeal. This court merely reaffirmed those orders made on 21/2/21 when this matter came up on 15th June, 2023.

44. Having failed to challenge the change of directions since 21st February, 2021; can the application to lodge a notice of appeal out of time against those orders be timeous? It is almost 2 years since those orders were made. I certainly do not think so. The applicant has been sleeping on its laurels. This application is an afterthought.

45. Further, the 2nd respondent/applicant’s director claims that the reason he could not give instructions following the decision of the court on 15th June, 2023 is because he had travelled to United Kingdom where he had challenges accessing the 2nd respondents email. He has not attached any evidence to substantiate the fact that he had even travelled out of the country. Moreover, communication in the present day and age is not limited to email communication only. There are different modes of communication which are available hence this is a flimsy excuse in my view.

46. In asserting that the intended appeal has merit, the applicant accused this court of denying him the right to fair hearing by denying him right to cross-examine the petitioner. My answer to this is that a hearing by affidavit and written submissions is one of the specified modes of hearing constitutional petitions. The rights of the parties are still upheld when this mode is adopted as opportunity is granted to controvert matters that are put forward by filing affidavits, further affidavits and documentations where need arises hence any material information would be availed whatever the mode that is chosen.

47. Further, Part III of the Constitution of Kenya (Protection of rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Rule 20 (1) provides: -20(1)the hearing of petition shall, unless the court otherwise directs, be by way of: -a.Affidavitsb.Written submissions orc.Oral evidence.20(3)the court may upon application or its own motion direct that the petition or part thereof be heard by oral evidence.”

48. Flowing from the above reading of Rule 20 (1) & (3) of the Constitution of Kenya (Protection of rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, it is apparent that the discretionary power to determine the mode of hearing of a petition is given to the court and not left to the whims of the parties. Rule 20(3) unequivocally provides: -“… the court may upon application or its own motion direct that the petitioner or part thereof be heard by oral evidence…”Whether a hearing shall take the form of oral evidence or be heard by affidavit evidence, it is for the Court to decide so long as the court considers that the ends of justice will not be compromised. Nothing stops the Court from reviewing or varying its directions as to the mode of hearing. The hands of the court are not unnecessarily tied to the parties selection of mode hearing of a petition. That discretion is squarely left to the court to exercise. That is the essence of rule 20(3).

49. In the instant case, I find that the application for leave to file appeal out of time lacks merit. I hereby dismiss the same.

50. Costs shall be in the cause.

51. Parties are consequently directed to appear virtually for mention on 26/9/2023 for allocation of a date to highlight their submissions.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF SEPTEMBER, 2023. L N MUGAMBIJUDGE