[2023] KEELC 16537 (KLR)

Osoro v Kenya Rural Roads Authority (KERRA) & another (Environment & Land Petition E005 of 2022) [2023] KEELC 16537 (KLR) (23 March 2023) (Ruling)

Neutral citation: [2023] KEELC 16537 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyamira

Environment & Land Petition E005 of 2022

JM Kamau, J

March 23, 2023

Between

James Omboga Osoro

Petitioner

and

Kenya Rural Roads Authority (KERRA)

1st Respondent

Sinohydro Corporation Ltd

2nd Respondent

Ruling

1. The 2nd Respondent has sought for orders that:'This court be pleased to strike out the 2nd Respondent from the instant proceedings for misjoinder. The costs of the Application is borne by the Petitioner.'

2. The Grounds upon which the Application is made include:'the 2nd Respondent had illegally dumped material on the Petitioner’s parcel of land whereas the 2nd Respondent is not privy to the facts relating to the contract and to the illegal dumping.'

3. In the Affidavit of her Chief Engineer sworn on December 5, 2022, the 2nd Respondent depones that she did not illegally dump any material on the Petitioner’s parcel of land Isoge/Kineni Settlement Scheme/818 and that the Petitioner would not suffer any prejudice should she be struck out as a party in these proceedings.

4. Neither the Petitioner nor the 1st Respondent filed any Response to the above Application. On March 6, 2023 the Court gave the 2nd Respondent 7 Days within which to file her written Submissions. The same were not forthcoming and I had to retire to write my Ruling. The Petitioner’s Petition dated August 2, 2022 seeks conservatory orders for restraining the Respondents from dumping by any means soil from the ongoing construction of the Erongei (D 209)- Kebuse-Kahawa-Memisi-Tembwo/ Border-Borabu TTC-Omonyenya, Amakara-Isoge-Chebilat, Chencha-Simbauti-Tindereti-Nyansiongo Missio & Anti Stock Theft Unit (ATSU)-Saiga Nginya-Kineni Junction-Prince Dan High School Roads Project Only in so far as they concern the dumping of soil by any other means at the Petitioner’s Plot – Isoge Kineni Settlement Scheme/818. He seeks to: -

5. (a)Prevent, stop or discontinue any act or omission that is harmful to the environment.(b)Compel any public officer to take measures to prevent or discontinue any act or omission that is harmful to the environment.(c)Provide compensation for any victim of a violation of the right to a clean and healthy environment.

6. It is the Petitioner’s case that whatever the 1st Respondent has commenced she has contracted the 2nd Respondent to carry it out. The 1st Petitioner’s instructions are being carried out by the 2nd Respondent. The latter may carry out work in line with the instructions from the 1st Respondent or even deviate from the given instructions. At this stage we cannot tell how she is conducting the exercise. Time for those investigations will come. And in any case there is a nexus between the Principal (the 1st Respondent) and the Agent (2nd Respondent). If the court finds that there is liability on the part of the 2nd Respondent, it may find the 1st Respondent vicariously liable. Should the 2nd Respondent be left out in this Petition there is a likelihood of the 1st Respondent dismissing the Principal-Agent relationship. Should the court be convinced that the 2nd Respondent was in a frolic of his own mission then the 2nd Respondent may end up being condemned unheard which would lead to a travesty of justice: In Lenson Products Limited v Mary Waithira Ndirangu & another (Suing as joint administrators of the Estate of David Mwaura, deceased) [2020] eKLR High Court of Kenya at Kiambu, Civil Division Civil Appeal No 121 of 2018 Lady Justice Ruth N Sitati observed as follows:'In the instant case, the first issue is to establish the agency/employer-employee relationship between the driver and the owner of the suit motor vehicle and then secondly establish whether the driver was driving the suit motor vehicle at the owner’s request or authority, express or implied. The only person who could have given a clearer picture in evidence as to how the accident happened was the driver, but since he did not testify, the evidence of the respondents on negligence on the part of the driver remained unchallenged. The driver was best placed to explain how a vehicle that is presumably well maintained and serviced and did not have any mechanical problems as per the evidence of DW2 could start moving in a zig zag manner and cause an accident. As the Court of Appeal observed in the cases of Kenya Bus Services Ltd v Dina Kawira Humphrey CA 295/2000 and Nairobi CA 179 of 2003 Rahab Micere Murage estate of Esther Wakiini Murage v Attorney General & 2 others [2015] e KLR:'Buses, when properly maintained, properly serviced and properly driven do not just run over bridges and plunge into rivers without any explanation. Well driven motor vehicles do not just get involved in accidents.'

7. Going by the above the only person who would give a clearer picture in evidence as to whether there is any act or omission leading to environmental degradation is the 2nd Respondent otherwise the evidence of the Petitioner would remain unchallenged. The 2nd Respondent is best placed to explain what is on the ground. The 1st Respondent may not. In the circumstances I am unable to grant the prayer sought by the 2nd Respondent, of striking her from the instant proceedings. There is no misjoinder.

RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 23RD DAY OF MARCH, 2023. MUGO KAMAUJUDGEIn the Presence of: -Court Assistant: SibotaPetitioner: N/ARespondents: Mr. Mainga for the 2ndRespondent