[2024] KENET 336 (KLR)

Mbugua & 1001 others v National Environment Management Authority (NEMA) & 2 others (Tribunal Appeal 177 of 2016) [2024] KENET 336 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KENET 336 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 177 of 2016

Emmanuel Mumia, Chair, Winnie Tsuma, Vice Chair, Duncan Kuria & Ronald Allamano, Members

March 7, 2024

Between

Betty Mbugua

1st Appellant

David Ndirangu & 1000 others

2nd Appellant

and

National Environment Management Authority (NEMA)

1st Respondent

Nairobi City County

2nd Respondent

Hon. Robert Mbatia

3rd Respondent

Ruling

Introduction 1. This Ruling is in respect to the Appellants’/Applicants’ Notice of Motion application dated 21st December 2023 which was brought under the Certificate of Urgency seeking the following orders:a.Spent.b.That the 1st Respondent, National Environment and Management Authority (NEMA) and the 3rd Respondent be found to be in contempt of the Decree of the National Environment Tribunal in Tribunal Appeal No NET 177 of 2016, issued on 24th September 2020, and liable to be punished for contempt.c.That the Director General of the National Environment Management Authority, Hon. Mamo B. Mamo EBS, and the 3rd Respondent, Hon. Robert Mbatia, be detained in prison for a period of One (1) Year 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 24th September 2020 in National Environment Tribunal, Tribunal Appeal No NET 177 of 2016. d.That in addition to or in lieu of such committal, the Honourable Tribunal be pleased to order the 1st Respondent, through the Director General National Environment Management Authority and the 3rd Respondent, Hon. Robert Mbatia, to pay such fine as the Tribunal may deem fit in the circumstances for disobedience and/or non-observance of the decree of the National Environment Tribunal issued in NET Appeal No 177 of 2016 and issued on 24th September 2020. e.That in any event, the 1st Respondent/Contemnor and the 3rd Respondent/Contemnor do purge its 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.f.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.g.That the Plaintiff herein be condemned to costs.

2. The grounds upon which the application was premised are set out in detail on the body of the application and in the affidavit of Betty Mbugua sworn on 21st December, 2023. The Appellants/Applicants’ complaint against the Respondents can be summarized as follows –i.On 5th March 2019, the Tribunal delivered a judgement whose orders we shall reproduce hereunder:a.The Environmental Impact Assessment License No NEMA RB/P2/5/1/9141 issued by the 1st Respondent on 29/04/2016 is hereby revoked.b.The intended development of a social hall at Uhuru Phase IV playgrounds – Uhuru estate area, Makadara Sub County in Nairobi County, by the 2nd Respondent is hereby stopped.c.An environment restoration order is hereby issued against the 3rd Respondent. The 1st Respondent shall enforce the order at the cost of the 3rd Respondent. This order requires the demolition of the social hall structure on Uhuru Phase IV Estate playground, the restoration of all soils, flora and natural feature therein, together with the supervised removal of all building materials and sources or causes of pollution and/or environmental hazard or damage-on-the-Suit Premises; within sixty (60) days after the lapse of the period set out under Section 130 (1) of Environmental Management and Co-ordination Act: andd.The Costs of the Appeal are awarded to the Appellants and to be borne by the 3rd Respondent.ii.Following the pronouncement of the said judgment, the Applicants deponed that the 3rd Respondent filed an appeal on 30th April, 2019 and an application for stay of execution dated 16th May 2022 to the Environment and Land Court through Milimani ELC Appeal No 34 of 2019 Hon. Robert Mbatia and Nairobi City County vs. the National Environment Tribunal and Betty Mbugua and 100 others. This application was dismissed, and the appeal was subsequently withdrawn vide a Notice of Withdrawal dated 26th October, 2023, which was later ratified in Court on 31st October, 2023. iii.During the pendency of the Appeal, it is deponed that the 3rd Respondent continued to develop the social hall.

3. The Respondents did not file either a Replying Affidavit or Grounds of Opposition and or submissions to Appellant's application at all.

Analysis and Determination 4. Having considered the Applicants’ application, documents filed in support of the application and written submissions, it is our considered view that the only issue arising for determination is whether the Applicant for contempt is merited.

5. Our starting point will be highlighting the test for establishing contempt where Mativo J in Samuel M. N. Mweru & others v National Land Commission & 2 others [2020] eKLR stated –“It is an established principle of law that in order to succeed in civil contempt proceedings, the applicant has to prove -i.the terms of the order,ii.knowledge of these terms by the Respondent,iii.failure by the Respondent to comply with the terms of the order.Upon proof of these requirements, the presence of willfulness and bad faith on the part of the Respondent would normally be inferred, but the Respondent could rebut this inference by contrary proof on a balance of probabilities. Perhaps the most comprehensive of the elements of civil contempt was stated by the learned authors of the book Contempt in Modern New Zealand who succinctly stated: -"There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that: -(a)the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;(b)the defendant had knowledge of or proper notice of the terms of the order;(c)the defendant has acted in breach of the terms of the order; and(d)the defendant's conduct was deliberate.”

6. In the instant case, there is a judgment that was entered in favour of the Applicants, with a decree subsequently being issued leading the 2nd and 3rd Respondents filing an appeal through Milimani ELC Appeal No 34 of 2019, which was later withdrawn. There can be no doubt that the Respondents were at all times aware of the said orders. The upshot of this, therefore, is that the first two elements relating to the knowledge of an order have been met.

7. What remains to be determined from the above elements is whether the Respondents have acted in breach of the terms of the order and whether their conduct was deliberate. Proof of these two elements is supposed to be beyond a balance of probabilities because contempt proceedings are quasi-criminal in nature, and a person may lose his/ her freedom. This was the finding in the case of Mwangi HC Wangondu v Nairobi City Commission, Nairobi Civil Appeal No 95 of 1998 where it was held that the threshold of proof required in contempt of court is higher than in normal civil cases, and one can only be committed to civil jail or otherwise penalized on the basis of evidence that leaves no doubt as to the contemnor’s culpability.

8. The Applicants contend that the 3rd Respondent continued to develop the social hall with the 1st Respondent turning a blind eye on the said developments. To support this assertion, the Applicants annexed photographs showing the development of the said social hall taken 21st December, 2023 on the suit premises, Uhuru Phase IV playgrounds – Uhuru Estate Area in Makadara, Nairobi. Annexed therewith also is a certificate in compliance with Section 106 B of the Evidence Act.

9. To our minds, the existence of the structure standing tall presently despite the Tribunal orders demonstrates deliberate disobedience. The orders were specifically to stop the said construction with a consequent order requiring the demolition of the structure and restoration of all soils, flora and natural features. This was to be enforced by the 1st Respondent at the cost of the 3rd Respondent within sixty (60) days after the lapse of the period set out under Section 130 (1) of Environmental Management and Co-ordination Act:.

10. We reiterate the holding in Hadkinson v Hadkinson 2 ALL ER 1952 p.569 where the court stated –“It was the plain and unqualified obligations of every person against, or in respect of, whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged”.

11. This leads to the question as to whether the Tribunal has jurisdiction to punish for contempt. Section 133 (2) of the Environmental Management and Co-ordination Act (EMCA) provides:“(2)It shall be an offence for any person to engage in acts of or make omissions amounting to contempt of the Tribunal and the Tribunal may punish such person for contempt in accordance with the provisions of this Act.

12. On that same note, Section 143 of the EMCA provides –“Any person who-a.fails, neglects or refuse to comply with an environmental restoration order made under this Act;b.fails, neglects or refuses to comply with an environmental easement, issued under this Act;c.fails, neglects or refuses to comply with an environmental conservation order made under this Act,commits an offence and shall on conviction, be liable to imprisonment for a term not exceeding twelve months, or to a fine not exceeding five hundred thousand shillings, or to both.

13. This Tribunal will not condone deliberate disobedience of its orders and will not shy away from its responsibility to deal firmly with proved contemnors. That even failing to present themselves before the Tribunal to answer to the contempt allegations despite having been served speaks to the very nature of the disobedience conduct.

14. In Ndolo J in Teachers Service Commission v Kenya National Union of Teachers & 2others [2013] eKLR the court stated that-“A court order is not a mere suggestion or an opinion or a point of view. It is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest of every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this Court will not be the one to open that door. If one is dissatisfied with an order of the court, the avenues for challenging it are also set out in the law. Defiance is not an option.”

15. It is, therefore, our finding that the 1st and 3rd Respondents have refused and or neglected to comply with the orders issued, which are valid and legal orders, as they have not been set aside, varied or appealed against.

Orders 16. Accordingly, we make the following orders:a.The 1st to 3rd Respondents failed to comply with the Tribunal’s orders of 24th September 2020. b.The 1st to 3rd Contemnors shall pay the Applicants Kshs 2,000,000 in 90 days to purge contempt of court orders of 24th September 2020. The contempt of the Tribunal’s orders shall take effect in terms of the Applicant’s application, which is hereby granted after 90 days.

DATED AND DELIVERED AT NAIROBI, THIS 7TH DAY OF MARCH, 2024EMMANUEL MUMIA -CHAIRMANWINNIE TSUMA -VICE-CHAIRDUNCAN KURIA -MEMBERRONALD ALLAMANO -MEMBER