[2022] KENET 776 (KLR)

Muturi & 4 others (Registered Officials of Kinale Forest Conservation Association) v Kenya Forest Service (Tribunal Appeal 11 of 2021) [2022] KENET 776 (KLR) (Civ) (19 October 2022) (Judgment)

Neutral citation: [2022] KENET 776 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 11 of 2021

Mohamed S Balala, Chair, Christine Mwikali Kipsang, Bahati Mwamuye, Waithaka Ngaruiya & Kariuki Muigua, Members

October 19, 2022

Between

David Kinyanjui Muturi

1st Plaintiff

Elizabeth Njeri Maina

2nd Plaintiff

David Chui Kamochu

3rd Plaintiff

Daniel Kamau Njoroge

4th Plaintiff

Waweru Karanja Samuel

5th Plaintiff

Registered Officials of Kinale Forest Conservation Association

and

Kenya Forest Service

Defendant

Judgment

A. Background 1. The Plaintiffs instituted the appeal vide a Notice of Appeal dated June 8, 2021 under Rule 4 (1) of the National Environment Tribunal Rules. The Plaintiffs allege unlawful withdrawal, termination and cancellation of a Forest Management Agreement by the Defendant.

2. The Plaintiff’s subsequently filed an Amended Plaint dated June 2, 2021 and an Amended Plaint dated January 3, 2022.

3. At paragraph 4 of the amended plaint, the Plaintiffs contend that on April 14, 2014, Kinale Forest Conservation Association entered into an agreement with the Kenya Forest Service, the Defendant herein, granting the Association permission to participate in the conservation and management of Kinale Forest Reserve located in Kiambu Forest Zone.

4. The Plaintiffs contend at paragraph 5 of the amended plaint that the Defendant purported to unlawfully withdraw, terminate and cancel the said agreement sometime in April 2017 or thereabout. The Plaintiffs allege several particulars of breach, irregularity and unlawfulness as set out in the amended plaint.

5. On this basis, the Plaintiffs allege at paragraph 6 of the amended plaint that as a result of the actions of the Defendant, the conservation and management of the Kinale Forest Reserve has been left in a precarious situation with the likelihood of causing harm to the environment. They further allege that lack of access by the Plaintiffs to the forest reserve has greatly affected their source of livelihood and as a result, they have suffered loss and damages.

6. The Plaintiffs thus seek the following reliefs from the Tribunal:a)A declaration that the actions of the Defendant of unlawful withdrawal, termination and cancellation of the agreement dated April 14, 2014 has affected/compromised the management and conservation of the Kinale Forest Reserve;b)An order of specific performance of the agreement dated April 14, 2014;c)Special damages in the sum of Kshs 253,221,400/=;d)General and punitive damages;e)Costs of the suit; andf)Any other orders/relief the Honourable Tribunal may deem just and fit to grant.

7. The Defendant responded to the Plaintiffs’ suit vide a Defence dated July 12, 2021.

8. At paragraph 4 of the Defence, the Defendant admits that it entered into a Forest Management Agreement with the Plaintiffs to allow them permission to participate in the conservation and management of Kinale Forest Reserve located in Kiambu.

9. The Defendant contends at paragraph 5 of the Defence that the Forest Management Agreement between the parties dated April 14, 2014 was to run for a duration of five years after which the Agreement was to automatically lapse. On this basis, the Defendant contends that the Agreement lapsed on April 14, 2019.

10. The Defendant further alleges at paragraph 7 of the Defence that at the time the new Community Forest Association was registered by the Registrar of Societies the agreement between the parties had already lapsed thus not in force.

11. The Defendant also contends at paragraph 8 of the Defence that the mandate of registering a Community Forest Association rests purely with the Registrar of Societies as set out under the Societies Act, Cap 108 and thus it had no hand in the formation and registration of the new Community Forest Association. The Defendant alleges that the new Community Forest Association was formed by members of the community living adjacent to Kinale Forest Reserve and registered by the Registrar of Societies on November 5, 2019.

12. On this basis, the Defendant argues that the Plaintiff’s suit is unmerited since there was no binding agreement between the parties as at the time the Plaintiffs were raising their grievances. The Defendant thus prays that the Plaintiffs’ claim be dismissed with costs.

B. Submission by the parties a)Plaintiffs’ submissions 13. The Plaintiffs filed written submissions dated June 16, 2022. The Plaintiffs submit on the following issues for determination by this Honourable Tribunal:i.Whether the honourable tribunal has jurisdiction to hear the matter;ii.Whether the Defendants are in breach of the contract dated April 14, 2014; andiii.Whether the Plaintiff should be granted the prayers sought.

14. On the issue of jurisdiction, the Plaintiffs submit that this Tribunal has jurisdiction to hear and determine the matter pursuant to clause 14 of the Agreement between the parties and section 70 of the Forest Management Act.

15. On whether the Defendant breached the Agreement between the parties dated April 14, 2018, the Plaintiffs submit that they were denied access to the forest and farms and further that they were harassed by the Defendant.

16. The Plaintiffs further submit that the Defendants supported the registration of another association during the subsistence of the Agreement between the parties. They refer to the letter dated September 17, 2018.

17. The Plaintiffs further submit that they raised the issues of breach vide correspondences dated September 4, 2018 and November 4, 2020.

18. The Plaintiffs also submit that the actions of the Defendant amounted to performance of the contract in a defective manner which can be termed as a breach. They contend that failure by the Defendant to respond to the Plaintiff’s correspondence was an express breach of the contract by the parties to use their best efforts to settle their dispute.

19. On whether they should be granted the prayers sought, the Plaintiffs submit that every breach will give rise to a right to claim damages. They contend that they have quantified their damages and refer to the report by an agricultural officer. The Plaintiffs further submit that this Honourable Tribunal has powers to award damages.

b) Defendant’s Submissions 20. The Defendant filed written submissions dated July 1, 2021. It submits on the following issues for determination by this honourable tribunal:i.Whether the Defendant is in breach of the Contract dated April 4, 2022; andii.Whether the Plaintiff should be granted the prayers sought.

21. On whether it breached the contract dated April 4, 2022, the Defendant submits that the Plaintiffs have failed to particularize the breach pleaded by failing to demonstrate how it denied the Plaintiffs’ members access to the forest. The Defendant cites section 107 of the Evidence Act and submits that the Plaintiff has not discharged the burden of proof on this issue.

22. The Defendant further submits that the Plaintiffs have failed to prove that it deregistered the Plaintiffs’ Community Based Organizations (CBO) .

23. At paragraph 14 of its submissions, the Defendant contends that the allegation by the Plaintiffs that it supported and gave recognition to another Forest Association during the pendency of the Agreement between the parties is farfetched, unconvincing and defenseless.

24. At paragraph 23 of its submissions, the Defendant submits that the investigations alluded to by the Plaintiffs were overtaken by events since the Agreement expired on April 19, 2020. The Defendant thus submits that the Plaintiff’s suit lacks merit.

25. On whether the Plaintiff should be granted the prayers sought, the Defendant contends that the Plaintiffs are not entitled to any remedies.

26. The Defendants submit that the Plaintiffs are not entitled to the cost of preparation of the Forest Management Plan in the amount of Kshs 1,000,00/= as alleged in the amended plaint since there in no record of receipts in support of the claim. It further contends that it received a grant and the Forest Management Plan was fully sponsored by theUNDP.

27. On the Plaintiffs’ claim for Kshs 253,221,400/= for loss of earnings, the Defendant submits that the claim is unmerited and demonstrates that the Plaintiffs were money oriented in the participation as they refused to demonstrate to the Tribunal that they have clean hands in fulfillment of the primary objective in the Forest reserve which is forest conservation through tree planting amidst a myriad of other conservation undertakings.

28. The Defendants further submit that the Plaintiffs have failed to show that each of their members had cultivation permits and during which tenure the Plaintiffs have failed to plead and or prove that they fulfilled the conservation conditions foretasted before claiming any damages.

29. On this basis, the Defendants submit that the particulars pleaded in the Plaint and the evidence tendered before court are broad, vague and lack material and evidential particulars. The Defendant submits that the Plaintiffs’ suit ought to be dismissed for lack of merit.

C. Analysis 30. Having considered the Plaintiffs’ Amended Plaint dated January 3, 2022, the Defendant’s Defence dated July 12, 2021 and the submissions by the parties, the Tribunal has identified the following issues for determination:I. Whether there was breach of contract by the Defendant;II. Whether the Plaintiff is entitled to the reliefs sought in the Amended Plaint; andIII. What orders should this Tribunal make?

Whether there was breach of contract by the Defendant 31. The crux of the Plaintiff’s case is that the Defendant breached the Agreement between the parties dated April 14, 2014. The Plaintiffs set out the particulars of the alleged breach in the Amended Plaint. The Defendant on the other part deny the allegations of breach by the Plaintiffs.

32. The Plaintiffs and the Defendant executed a Forest Management Agreement dated April 14, 2014. Clause 1 of the Agreement sets out the object and purpose of the Agreement which was to grant the Association permission to participate in the conservation and management of Kinale Forest Reserve located in Kiambu Forest Zone.

33. The Agreement further sets out the respective rights and duties of the parties. Under clause 8 of the Agreement, the Association had the right to enter the forest area for purposes of carrying out activities to fulfill the requirements of the agreement. Under clause 9 of the Agreement, the Association had certain user rights including plantation establishment through PELIS, bee keeping and honey harvesting, grazing and grass harvesting, collection of fuel wood, water abstraction, fish farming among others.

34. The Plaintiffs had the obligation to protect, conserve and manage the forest or part thereof pursuant to the Agreement and the provisions of the approved management plan for the forest.

35. Under clause 10 of the Agreement, the Defendant had the obligation to allow the Plaintiffs to access to the forest area for the purposes of carrying out activities to fulfill the requirements of the Agreement provided that such access was to be done in an orderly manner, on designated paths, routes and roads and without committal of any offences under the Forests, Act 2005 or regulations or under any law.

36. Under clause 3, the Agreement was to last for a period of five (5) years commencing on the date of signing being April 14, 2014. Consequently, the clause envisaged that the Agreement was to lapse on April 14, 2019.

37. The Plaintiffs in the Amended Plaint allege that the Defendant’s breached the Agreement between the parties through inter alia denying its members access to the forest and farms as well as harassing members of the Plaintiff who seek access, purporting to dissolve/disband all Community Based Organisations (CBOs) under the Plaintiffs’Association and giving recognition to another forest association during the pendency of the current agreement between the parties.

38. Despite raising allegations of breach by the Defendant, the Plaintiffs did not adduce sufficient evidence in support of the allegations. The Plaintiffs failed to prove vide documentary and oral evidence that the Defendant denied its members access to the forest pursuant to the Agreement between the parties.

39. As correctly submitted by the Defendant at paragraph 8 of its submissions, the burden of proof lies with the party seeking to prove the existence of any fact as provided under section 107 of the Evidence Act. The Tribunal finds that the Plaintiffs have failed to discharge the burden of proof on this matter.

40. Further, the allegations that the Defendant purported to disband all community based organizations (CBOs) under the Plaintiffs Association is unsubstantiated. Registration of societies is governed by the Societies Act and it is not a matter within the capacity of the Defendant. The Plaintiffs did not prove how the Defendant deregistered the Plaintiff’s CBOas alleged.

41. In addition, the allegation that the Defendant neglected the mutually agreed terms of dispute resolution between the parties is unconvincing. The Plaintiffs did not sufficiently prove that there was a dispute between the parties during the pendency of the Agreement. Further, as correctly submitted by the Defendant at paragraph 23 of its submissions, the Agreement between the parties lapsed on April 19, 2019 and thus the dispute resolution clause between the parties was overtaken by events.

42. On this basis, the Tribunal finds that the Plaintiffs have failed to prove the allegations of breach of contract by the defendant.Whether the Plaintiff is entitled to the reliefs sought in the Amended Plaint

43. The Plaintiffs seek the following reliefs in the Amended Plaint dated January 3, 2022:i.A declaration that the actions of the Defendant of unlawful withdrawal, termination and cancellation of the agreement dated April 14, 2014 has affected/compromised the management and conservation of the Kinale Forest Reserve;ii.An order of specific performance of the agreement dated April 14, 2014;iii.Special damages in the sum of Kshs 253,221,400/=;iv.General and punitive damages;v.Costs of the suit; andvi.Any other orders/relief the Honourable Tribunal may deem just and fit to grant.

44. Having found that the Plaintiffs have failed to prove the allegations of breach of contract by the Defendant, the Tribunal cannot grant an order of declaration that the actions of the Defendant of unlawful withdrawal, termination and cancellation of the agreement dated April 14, 2014 has affected/compromised the management and conservation of the Kinale Forest Reserve;

45. Further, the Tribunal cannot grant an order of specific performance of the Agreement dated April 14, 2014 since the Agreement lapsed on lapsed on April 14, 2019 as envisaged under clause 3.

46. The Tribunal further finds that the Plaintiffs are not entitled to the claim of damages since they have failed to prove the claim. In particular, the Tribunal finds that the claim of Kshs 1,000,000/= being costs incurred in preparation of the forest management plan is unsubstantiated. The Plaintiffs did not adduce documents and receipts in support of this claim. Further, the Forest Management and Conservation Act envisages that a management plan in respect of each forest shall be prepared by the Kenya Forest Service. The Defendant submitted that it received financial support from the United Nations Development Programme towards this end. This evidence was uncontroverted by the Plaintiff.

47. In addition, the claim for loss of earnings for Kshs 252,221,400/= is unsupported by sufficient evidence is further unmerited since it goes contrary to the primary obligation of the Agreement between the parties being the management and conservation of Kinale Forest and not its exploitation for commercial acivities.

48. Based on the foregoing, the tribunal finds that the plaintiffs are not entitled to the reliefs sought in the amended plaint.

What orders should this tribunal make? 49. Based on the foregoing, the Tribunal makes the following orders:a.The Plaintiff’s case be and is hereby dismissed; andb.Each party to bear their own costs.

50. The parties’ attention is drawn to the provisions of Section 130 of the EMCA.

DATED AT NAIROBI THIS 19TH DAY of OCTOBER 2022. MOHAMMED S BALALA…………………...………………………CHAIRPERSONCHRISTINE KIPSANG………………………….…………………….MEMBERBAHATI MWAMUYE……………………………..…………………..MEMBERWAITHAKA NGARUIYA…………………….……………………....MEMBERKARIUKI MUIGUA…………………………..………………………..MEMBER