[2022] KEHC 14160 (KLR)

Republic v Kenya Forest Service & 3 others; Warui (Exparte Applicant) (Judicial Review Miscellaneous Application 1 of 2022) [2022] KEHC 14160 (KLR) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14160 (KLR)

Republic of Kenya

In the High Court at Nyahururu

Judicial Review Miscellaneous Application 1 of 2022

CM Kariuki, J

October 13, 2022

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI, PROHIBITIN, AND MANDAMUS AND IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF THE FOREST CONSERVATION AND MANAGEMENT ACT NO. 34 OF 2016, LAWS OF KENYA AND IN THE MATTER OF NYAHURURU, CHIEF MAGISTRATE'S COURT CRIMINAL CASE NO. E1076 OF 2022

Between

Republic

Applicant

and

Kenya Forest Service

1st Respondent

Director of Public Prosecution

2nd Respondent

Chief Magistrate Court, Nyahururu Law Courts

3rd Respondent

Attorney General

4th Respondent

and

Isaiah Muthami Warui

Exparte Applicant

Ruling

1. By Chamber Summons dated 18th August 2022, the ex parte Applicant sought leave to apply for orders of certiorari to remove into the High Court and quash the decision of Respondent No 1 and 2 to charge and prosecute ex parte Applicant in Nyahururu Criminal Case No. E1076 of 2020.

2. He also sought leave to operate as stay prohibit of further proceedings in the same Court, and mandamus for compelling 1st Respondent to release items held as Exhibits.

3. The Applicant sought the grant of orders to operate as a stay of the proceedings in the Magistrate Court above.

4. The Court granted leave ex parte and ordered the application for a stay to be heard inter partes.

5. The parties' Counsel addressed Court on the same. The Respondent relied on his statement of facts to support his case, particularly Paragraph 13 -17. It was contended that the invoked Sections of the Law do not disclose any offense committed by the ex parte Applicant herein in light of the facts of the case. Accordingly, he has not committed any crime under the said Sections of the Law, or any other provision of the Forest Conservation and Management Act, and any other known laws of the land.

6. This is because the said Parcel of land is a freehold property of description Land title Number I.R 102458 being Land Reference Number 722/1 and it is not and has never been declared and Gazetted as a forest, whether public, private or otherwise, within the context of the Forest Conservation and Management Act but instead it is personal property as stipulated under Article 65 of the Constitution, 2010.

7. Consequently, the charges against the ex-parte Applicant and his prosecution in Nyahururu Chief Magistrate's Criminal Case No. E1076 of 2022 is therefore wrongful, arbitrary, malicious, without any lawful basis, and has violated and threatens to violate the ex parte Applicant's fundamental rights under Articles 28, 29,40,43,47, and 65 of the Constitution.

8. The Respondents herein have acted unreasonably, ultra vires, and in bad faith and have misconstrued the Forest Conservation and Management Act provisions, No. 34 of 2016, to arrive at an erroneous decision to prosecute the Applicant herein.

9. The Respondent's acts aforesaid erode public confidence in public prosecutions, create a mockery of the judicial system, and abuse the court process.

10. The ODPP, via affidavit of PC Charles Murugi, opposed stay orders a verring that that the Applicant committed the offence of cutting forest produce in a personal forest (private firm) without authority Contrary to Section 64 (1) (a) as read with Section 64 (2) of the Forest Conservation and Management Act No. 34 of 2016.

11. The Applicant applied for judicial review over the matter, citing that the charges did not exist under the law. Further, on 7th September 2022, an amended charge sheet to read and made a subsequent amendment of charge sheet on 7th September 2022 to read of cutting forest produce in a provisional forest (private forest) without authority Contrary to Section 64 (1) (a) as read with Section 64 (2) of the Forest Conservation and Management Act No 34 of 2016.

Issues, analysis, and Determination 12. The issue in the instant application is whether the Applicant's application meets the threshold for a grant of stay as prayed. The provisions invoked in the charges impugned, and the meaning of the forest and provisional forests are reproduced below to shed some light on the epicenter of the dispute.

13. To start with, provisions of Section 64 (1) (a) state that,“Except under a license or permit or a management agreement issued or entered into under this Act, no person shall, in a public or provisional forest —(a)fell, cut, take, burn, injure or remove any forest produce; "forest" means land which is declared or registered as a forest or woody vegetation growing nearby in an area of over 0. 5 hectares, including a forest in the process of establishment, woodlands, thickets;

14. Section 2. The interpretation states that; in this Act, unless the context otherwise requires—" provisional forests" means any forest which has been declared a temporary forest by the Cabinet secretary under Section 35; which in turn states, Declaration and reversion of provisional forests; (1) Upon the recommendation of the Service or the relevant county government, the Cabinet Secretary may, by notice in the Gazette, declare any community or private forest, which in the opinion of the Service is mismanaged or neglected, to be a provisional forest.

15. Thus, the Declaration via a gazette notice is the common thread in the provisions invoked. Therefore, it will have to be established that the locus in quo of the allegedly cut tree was within a declared forest per said provisions. As it is now no prima facie evidence of an instrument declaring the place tree was cut as a forest.

16. In R (H) v Ashworth Special Hospital Authority (2003) 1 WLR 127, it was held that such a stay halts or suspends proceedings that are challenged by a claim for judicial review. The purpose of a stay is to preserve the status quo pending the final Determination of the claim for judicial review. The primary consideration is always whether or not the decision or action sought to stay fully implemented in Taib A. Taib v The Minister for Local Government & Others Mombasa HCMISCA. No. 158 of 2006, the Court held that: -“… The purpose of a stay order in judicial review proceedings is to prevent the decision maker from continuing with the decision-making process if the decision has not been made or to suspend the validity and implementation of the decision that has been made. It is not limited to judicial or quasi-judicial proceedings as it encompasses the administrative decision-making process undertaken by a public body such as a local authority or minister and the implementation of the decision of such a body if it has been taken. It is, however, not appropriate to compel a public body to act…."

17. It is clear that where the action or decision is yet to be implemented, a stay order can usually be granted in such circumstances. However, where the action or decision is implemented, the Court needs to consider the completeness or continuing nature. If it continues, it is still possible to suspend the implementation. In the instant case, the proceedings are at the initial stage and thus not complete. Therefore, the principle stated above is applicable and obtainable.

18. The impugned charges in the magistrate court are yet to be heard, thus still fresh and alive. There is a need, therefore, to prevent the continuation of the said proceedings in issue until the legality of the Respondent's decision is established in light of the prejudice pleaded by the ex-parte applicants. Therefore, I believe the order of stay ought to be and is hereby oissued thus court makes the orders:i.In the premises aforesaid, I find that the application has merits, and I do allow prayer for stay orders as prayed.ii.The Cr Case No. 1076 of 2020 are hereby stayed to await judicial review application to be heard and determined.

DATED, SIGNED, AND DELIVERED AT NYAHURURU THIS 13TH DAY OF OCTOBER 2022. .................................CHARLES KARIUKIJUDGE