[2024] KEELC 6504 (KLR)

Mbatia & another v National Environment Management Authority & 102 others (Environment and Land Appeal 34 of 2019) [2024] KEELC 6504 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KEELC 6504 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Appeal 34 of 2019

OA Angote, J

October 3, 2024

Between

Hon Robert Mbatia

1st Appellant

Nairobi City County

2nd Appellant

and

National Environment Management Authority

1st Respondent

Betty Mbugua

2nd Respondent

David Ndirangu & 100 others & 100 others & 100 others

3rd Respondent

Ruling

1. Vide a Notice of Motion dated the 21st December, 2023, brought pursuant to the provisions of Section 5 of the Judicature Act and Section 29 of the Environment and Land Court Act, the 2nd Respondent/ Applicant seeks the following reliefs:i.Spent.ii.That the 1st Appellant, Hon Robert Mbatia and the Director General of the 1st Respondent, National Environment and Management Authority (NEMA) be found to be contempt of the orders of this Honourable Court issued on the 19th June, 2023 and liable to be punished for contempt.iii.That the 1st Appellant, Hon Robert Mbatia, and the Director General, National Environment Management Authority be detained in prison for a period of six (6) months each or for such period as this Honourable Court shall deem necessary for being in disobedience of the orders of the Honourable Court given on the 19th June, 2023. iv.That in addition to, or in lieu of such committal, the Honourable Court be pleased to order the 1st Appellant, Hon Robert Mbatia, and the Director General National Environment Management Authority to pay such fine as the Court may deem fit in the circumstances for disobedience and/or non-observance of its orders issued on the 19th June, 2023. v.That the Plaintiffs’[sic] Chief Officers be detained in prison for a period of six (6) months or for such period as this Honourable Court shall deem necessary for being in disobedience of the orders of the Honourable Court given on the 19th June, 2023. vi.That in any event, the 1st Appellant and the 1st Respondent herein do purge their contempt by causing the demolition of the social hall structure on Uhuru Phase IV Estate Playground, the restoration of all soils, flora and natural features therein, together with the supervised removal of all building materials and sources or causes of pollution and/or environmental hazard or damage on the Uhuru Phase IV Playground, within thirty (30) days of the date of determination of this Application.vii.That such other or further orders as may be just be made to meet the ends of justice and to safeguard and protect the dignity of this Honourable Court.viii.That the Plaintiff[sic] herein be condemned to costs.

2. The application is based on the grounds on the face of the Motion and supported by the Affidavit of Betty Mbugua, one of the 2nd Respondent/Applicant of an even date, who deponed that vide a Judgment delivered on 5th March, 2019, the National Environment Tribunal revoked the EIA License issued by NEMA on the 29th April, 2016, and ordered that the intended development of a social hall at Uhuru Phase IV Playgrounds-Uhuru Estate Area, Makadara Sub-County in Nairobi by the Nairobi City County be stopped.

3. It was deposed that further, an environmental restoration order was issued against the 1st and 2nd Appellants requiring the demolition of the social hall structure and restoration of soils, flaura and natural features within 60 days after the lapse of the period set out under Section 130(1) of the EMCA and that no stay was sought or granted at the Tribunal.

4. The 2nd Respondent deposed that dissatisfied with the Tribunal’s decisions, the Appellants filed the present Appeal sometime on 30th April, 2019; that contemporaneously with the Appeal, they sought a stay of execution through the Motions of 16th and 25th May, 2022 which were dismissed vide a Ruling on 24th November, 2022 and that despite the foregoing, the 1st Appellant continued with its development on the suit property.

5. According to the deponent, prompted by the continual development aforesaid, they filed a Motion seeking inter alia to have the Appellants restrained from carrying on further construction and/or any other interference with the suit property pending determination of the Appeal and for conservatory orders preserving the suit property and directions that the Appellant’s remove their materials from the suit property.

6. The 2nd Respondent deposed that on 19th June, 2023, all the prayers were allowed save for the one seeking to have the OCS Jogoo Road Police Station ensure compliance with the Court Orders; that both the Appellants and the 1st Respondent’s Counsels were present in Court and were aware of the contents of the Court Orders; that she, on several occasions wrote to the 1st Respondent alerting them of the continued developments on the property but the 1st Respondent declined to discharge its duties to stop the same and that the Appellants subsequently withdrew the appeal.

7. It is her averment that the social hall is now complete and currently in use; that the Appellants’ actions are a calculated high handed act of disobedience of the Court prompted by malice and ill will and designed to frustrate her from seeking justice; that there is an unqualified obligation of every person to obey an order of a competent Court and that it is imperative that the Court protects its dignity and upholds the rule of law by finding the 1st Appellant and the Director General, NEMA guilty of contempt.

8. In response to the Motion, the 1st Respondent, through its Director General, swore a Replying Affidavit on 18th May, 2024. He affirmed that Judgment in this matter was delivered on 5th March, 2019 by the National Environment Tribunal issuing the orders set out by the 2nd Respondents and that on appeal to this court, this Court issued interim orders pending the hearing and determination of the Appeal pursuant to which the 1st Respondent was to take all reasonable steps to stop development on the suit property including closing down the project site.

9. It is the 1st Respondent’s case that sometime in March, 2022, they received a complaint from the 2nd Respondent that the construction had resumed on the ground; that based on the foregoing, on 30th March, 2022, their legal department advised their environmental compliance department to visit the site and order enforcement and that on 19th April, 2022, the Authority visited the site with the aim of enforcing the Court Orders.

10. It was deposed by the 1st Respondent’s Director General that they marked the construction as illegal and served a stop order to the persons on the premises; that on the 26th April, 2022, they received a letter from the 2nd Respondent that the Appellants had removed the aforesaid markings while being guarded by armed maasai askaris and that pursuant thereto, the Authority Inspectors visited the site with the objective of arresting the 2nd Appellants’ workers but were met with hostility from armed county and maasai askaris and youths necessitating their retreat.

11. It was deposed that in September, 2023, the Authority visited the site again accompanied by three police officers with the intent to enforce the Court Order; that they however did not find any person or ongoing construction on the site and that on the 7th November, 2023, the Appellants withdrew their appeal in its entirety.

12. It was his deposition that after the withdrawal of the Appeal, the Tribunal’s orders survived the ELC suit and the Authority proceeded to the site on various dates accompanied by its police officers with the aim of enforcing the Tribunal Orders and that they were in all instances met with hostility from members of the community who are in support of the project and that hostilities have been ongoing from the pendency of the suit evinced by the fact of stabbing which occurred during a Tribunal hearing leading to the matter being transferred for physical hearing at the Supreme Court.

13. The 1st Respondent’s Director General posited that that the Appellants have continuously disobeyed all restoration orders knowing that they have crudely armed private security personnel; that they have further fenced and completed the impugned social hall and converted part of it into a police post and that they have equally and continuously ignored the stop order.

14. According to the 1st Respondent, the Authority has not refused to enforce the Court’s decision but has been unable to do so; that nonetheless, the Appeal having withdrawn, there is no suit capable of being heard by this Court and that the 2nd Respondent has filed a similar Motion before the Tribunal which is pending determination.

15. The Appellants did not respond to the Motion. The 2nd Respondent/Applicant filed submissions and a list of authorities which I have considered.

Analysis and Determination 16. Having considered the application, affidavits and submissions, the issues that arise for determination are:i.Whether this Court has jurisdiction to entertain the present Application; and if so?ii.Whether the 1st Appellant and 1st Respondent are in contempt of the Court Orders of 19th June 2023.

17. Vide the present Motion, the 2nd Respondent asks this Court to find the 1st Appellant and the 1st Respondent to be in contempt of its orders. The 1st Respondent, while conceding to the existence of the Court orders it is alleged to be in contempt of, asserts that the present appeal was withdrawn in its entirety and subsequently this Court is functus officio. Further, it was argued, the 2nd Respondent has filed an application for contempt before the National Environment Tribunal and as such, this matter contravenes the doctrine of sub judice.

18. It is trite that jurisdiction is everything. The centrality of jurisdiction was succinctly captured by Nyarangi, J.A. in Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] eKLR as follows:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings…”

19. Similarly, the Supreme Court in Kalpana H Rawal & 2 Others vs Judicial Service Commission & 2 Others [2016] eKLR cited with approval the decision by the Supreme Court of Nigeria in Supreme Case No. 11 of 2012 Ocheja Emmanuel Dangana vs Hon. Atai Aidoko Aliusman & 4 Others where Walter Samuel Nkanu Onnoghen, JSC expressed himself as follows:“…It is settled that jurisdiction is the life blood of any adjudication because a court or tribunal without jurisdiction is like an animal without blood, which means it is dead. A decision by a court or tribunal without requisite jurisdiction is a nullity - dead - and of no legal effect whatsoever, that is why an issue of jurisdiction is crucial and fundamental in adjudication and has to be dealt with first and foremost…”

20. It is well established that the jurisdiction of a Court flows from the Constitution and or statute or both. This position was affirmed by the Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR where it pronounced itself as follows:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. …. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation….”

21. Beginning with the plea of sub judice, it is a principle of law that acts to bar a Court from trying a matter whose issues are similar to those pending before another Court of competent jurisdiction between the same parties canvassing it under the same title. It finds roots in Section 6 of the Civil Procedure Act which provides as follows:“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

22. In Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR) (Constitutional and Human Rights) (7 February 2020) (Ruling) the Supreme Court of Kenya stated as follows with regard to sub judice:“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.”

23. It is clear from the foregoing that to make a finding of sub judice, the Court must be convinced that there exists more than one suit, over the same subject matter, both pending before Courts of competent jurisdiction and that the suits are between the same parties or representatives.

24. The 1st Respondent has adduced in evidence the Motion by the 2nd Respondent/Applicant filed on 23rd December, 2023 at the National Environment Tribunal [NET 177 of 2016]. The application therein seeks to have the 1st and 3rd Respondents, (the 1st Appellant and 1st Respondent herein) cited for contempt of the Tribunal’s orders of 24th September, 2020.

25. While the 2nd Respondent also seek to have the 1st Appellant and 1st Respondent cited for contempt herein, the same is with respect to this Court’s Orders of 19th June, 2023. It is clear that apart from the fact that what are sought are “contempt orders,” the same are with respect to different decisions by the Court and the Tribunal with each being called upon to enforce its orders, a mandate the Court and indeed the Tribunal are well vested with.

26. To say that the instant application is sub judice the application before the Tribunal is to find that this Court is being called upon to enforce the orders of the Tribunal while the Tribunal is equally enforcing its decision, which is not the case.

27. The rationale of the sub judice rule is to diminish the chances of Courts of competent jurisdiction issuing conflicting decisions over the same subject matter. In the instant case, there can be no conflicting decisions if the two judicial bodies were to arrive at different findings, for each body would be enforcing its own orders. The plea of sub judice therefore fails.

28. Moving to the plea of functus, this doctrine is one of the mechanisms by which the law gives expression to the principle of finality. Discussing the same, the Supreme Court in Raila Odinga & Others v IEBC & Others [2013] eKLR cited with approval an excerpt from an article by Daniel Malan Pretorius, in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law” [2005] 122 SALJ 832 in the following words:“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.”

29. It is not in dispute that vide a notice of withdrawal dated 26th October 2023, the Appellants sought to withdraw the entire appeal with no orders as to costs. It is further not in dispute that the withdrawal notice was endorsed by the Court on the 31st October 2023 albeit with costs to the 2nd Respondent, the applicants herein.

30. The Courts have held that parties are well within their rights to withdraw their matters. In Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others, Supreme Court Application No. 16 of 2014, the Supreme Court stated as follows:“a party’s right to withdraw a matter before the court cannot be taken away. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.”

31. However, in Beijing Industrial Designing & Researching Institute v Lagoon Development Limited [2015] eKLR, the Court of Appeal while interrogating the right to discontinue a suit held as follows:“The above provision presents three clear scenarios regarding discontinuance of suits or withdrawal of claims. The first scenario arises where the suit has not been set down for hearing. In such an instance, the Plaintiff is at liberty, any time, to discontinue the suit or to withdraw the claim or any part thereof. All that is required of the Plaintiff is to give notice in writing to that effect and serve it upon all the parties. In that scenario, the Plaintiff has an absolute right to withdraw his suit, which we agree cannot be curtailed. The second scenario arises where the suit has been set down for hearing. In such a case the suit may be discontinued or the claim or any part thereof withdrawn by all the parties signing and filling a written consent of all the other parties. The last scenario arises where the suit has been set down for hearing but all the parties have not reached any consent on discontinuance of the suit or withdrawal of the claim or any part thereof. In such eventuality, the Plaintiff must obtain leave of Court to discontinue the suit or withdraw the claim or any part thereof, which is granted upon such terms as are just. In this scenario too, the Plaintiff’s right to discontinue his suit is circumscribed by the requirement that he must obtain the leave of the Court. That such leave is granted on terms suggests that it is not a mere formality.It follows therefore that a literal application of Order 25 Rule 1 in the circumstances of this suit would enable a party who is alleged to have undermined the rule of law to walk away scot-free by simply withdrawing the suit in which the law compels the respondent to file the application for contempt of court. As has consistently been stated by the courts, the law will not countenance a person benefiting from his wrongdoing or alleged wrongdoing….We entertain no doubt in our minds that the withdrawal by the respondent of its suit for the purpose of defeating the contempt of court application against it was an abuse of the process of court. Under section 3A of the Civil Procedure Act the High Court’s inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court is preserved. Where a party uses the right to discontinue a suit in manner that amounts to abuse of process of court or to defeat the ends of justice, the court has power to stop such abuse or undermining of justice.”

32. The above finding was adopted by this Court in Republic v Export Processing Zones Authority & 2 Others; London Distillers (K) Ltd & 3 Others (Interested Parties) Ex parte Erdermann Property Limited [2020] eKLR where it was held:“It is not in dispute that the 1st Interested Party has filed an Application dated 12th February, 2020 for contempt of court. In the Application, the 1st Interested Party has accused the Applicant’s advocate, together with her instructing client, for willfully disregarding the doctrine of sub judice, and that as a result of the press statement that was made by the Applicant’s advocate on 30th January, 2020, the sanctity of this court has been scandalized, demeaned, exposed to public ridicule and has interfered with the due process of the court. The 1st Interested Party having filed the Application for contempt, the matter stopped being a contest between the Applicant and the 1st Interested Party. Contempt proceedings, being quasi-judicial in nature, encompass public interest, which interest cannot be circumvented by the Applicant by withdrawing or discontinuing the suit at will. Considering that the Application for contempt has not been heard, I decline to allow the Applicant’s application to withdraw the suit. Having declined the Applicant’s Application to withdraw the suit at this stage, I will not address the issue of costs.”

33. The above exposition is necessary so as to distinguish the position held by the Court of Appeal in the Beijing matter and the instant suit. In the Beijing case (supra), the party sought to withdraw the suit after a contempt application had been filed. The Court of Appeal held that the decision to allow the withdrawal of the suit while the application was pending was erroneous. In the London Distillers’ case (supra), the withdrawal was also refused on account of the pending contempt application.

34. However, in this suit, as at the time of withdrawal of the appeal, no contempt motion had been filed. The contempt application was filed on the [21st December 2023] after the appeal had already been withdrawn on the 31st October 2023.

35. The effect of the withdrawal of the appeal is that there is no substantive appeal before this Court on which any application can be sustained. In Priscilla Nyambura Njue vs Geovhem Middle East Ltd; Kenya Bureau of Standards (Interested Party) [2021] eKLR which cited the case of Smt. Rais Sultana Begam v Abdul Qadir & Others, the Court held as follows:“The consequence of an act of withdrawal is that the Plaintiff ceases to be a Plaintiff before the Court. If he is the only plaintiff and withdraws the whole of the suit, the suit comes to an end and nothing remains pending before the Court, if he withdraws only a part of the suit that part goes out of the jurisdiction of the court and it is left with only the other part. This is a natural consequence of the act; a further consequence imposed by sub rule (3) is that he cannot institute a fresh suit in respect of the subject-matter. He becomes a subject to this bar as soon as he withdraws the suit. It follows as a corollary that he cannot revoke or withdraw the act of withdrawal. If he absolutely barred from instituting a fresh suit, it means that he is absolutely barred from reviving his status as a Plaintiff before the Court.It stands reason that when on withdrawal the Plaintiff ceased to be a party and the Court ceased to have jurisdiction over the suit and thus became functus officio nothing but a fresh suit can again invest the Court with jurisdiction over it. As far as the withdrawn suit is concerned the suit is at an end and no further proceedings can be taken in it; the suit and the Plaintiff do not exist and no application such as an for revoking the withdrawal can be made in the suit or by the Plaintiff.”

36. Similarly, the Court in Mary Njambi Mwangi v Paul Mbogo Karanja & Another [2014] eKLR held as follows:“I have reviewed and considered the instant application by the plaintiff and I have reviewed the pleadings giving rise to the application and the material placed before the court by the parties. On the issue of whether or not the Defendant is in contempt of the court order issued on 19th August 2013 it is my view that any orders that had been given pending the hearing of the application dated 5th August 2013 ceased to have any effect once the applicant of the application dated 5th August 2013 elected to withdraw the application since after the withdrawal of the application there was no application to be heard that the orders could crystallize having regard to the fact that the orders were given pending the hearing of the now withdrawn application.”

37. The Court concurs. There is no appeal before this Court on which the present Motion is founded. Further still, the orders issued by this Court were issued pending the hearing and determination of the appeal. There being no appeal, there are no interim orders that the Applicant can say are being contravened.

38. Once the Appeal was withdrawn, the position that was created was the position ante the Appeal. In the circumstances, and as explained above, there is no appeal before this Court. Any attempt to determine the Motion will be an exercise in futility. The 2nd Respondent’s option is to pursue the contempt application that is pending before the National Environment Tribunal.

39. In conclusion, it is the finding of this court that it has no jurisdiction and must down its tools. For those reasons, the Notice of Motion dated 21st December, 2023 is dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED IN NAIROBI VIRTUALLY THIS 3RD DAY OF OCTOBER, 2024. O. A. ANGOTEJUDGEIn the presence of;Ms Mwangi for Ngara for 1st RespondentMs Betty Mbugua for 2nd RespondentNo appearance for AppellantCourt Assistant - Tracy