[2006] KEHC 9 (KLR)

Republic vNational Environmental Management Authority & 2 others ex- parteGreenhills Investment Ltd & 2 others

High Court, at Nairobi September 20, 2006

Ibrahim J

Miscellaneous Application No 169 of 2004

Environmental law– practice and procedure – application to stay a

decision or order of the National Environment Management Authority –

where stay of the order has been granted but the applicant fails to comply

with conditions imposed by the court – the right of the Authority to make

an application to court to have stay vacated so that it can carry out its

statutory obligations

Environmental law– practice and procedure - appeals – National

Environmental Tribunal – where a person is aggrieved by a decision or

order of the National Environment Management Authority, Committee or

Director General – whether such a person is precluded from invoking the

jurisdiction of the High Court on a judicial review application – whether

section 129 of the Environmental Management and Co-ordination Act,

1999, ousts the jurisdiction of the High Court of considering applications

for judicial review of the decisions of the National Environment

Management Authority

Environmental law– practice and procedure – whether the National

Environment Management Authority’s Board is a legal entity – the proper

authority against whom legal action can be commenced

The first respondent, National Environment Management Authority, filed

an application seeking orders that: the stay granted by Justice Isaac Lenaola

on the 19th February, 2004 be set aside and vacated and the application for

judicial review presented to court by Notice of Motion dated 24th February,

2004 premised on the orders of grant of leave to apply be struck out with

costs. The application was premised on grounds that: no attempts had

been made to comply with the orders of the judge who had granted leave

and stay where he had directed that a hearing date should be fixed on

priority basis; the application was an abuse of the court process as the

relief sought in the notice of motion did not tally with the relief for which

leave was sought and granted; the application for judicial review was for

the enforcement of fundamental rights and freedoms and an application

for relief such should have been under the Rules made under the

Constitution; the applicants had withheld crucial and material information

relating effluent standards for disposal into natural watercourses, and that

the application was premature as no appeal, as required by section 129 of

the Environment Management and Co-ordination Act, 1999, had been

made to the National Environment Tribunal. The application was supported

by two affidavits.

The application was opposed by the three ex-parteapplicants who filed

grounds of opposition and a replying affidavit. The third respondent, the

City Council of Nairobi filed two affidavits in support of the first

respondent’s application.

The third respondent also filed an application seeking orders that the grant

of leave and notice of motion subsequently filed be struck out and/ or

dismissed as against them as the application did not disclose a cause of

action. This application was heard together with that of the first respondent.

Held:

1. The court in exercising its inherent jurisdiction is entitled to entertain

and consider an application to strike out a notice of motion made under

order 53 of the Civil Procedure Rules seeking judicial review orders.

However, such an application can only be granted in very exceptional

circumstances. For instance, if the court has no jurisdiction to determine

the issues in dispute or to grant the orders sought, an aggrieved party

need not wait until the hearing of the substantive application to have

the question of jurisdiction dealt with.

2. The Board of the National Environment Management Authority

(NEMA) is merely an internal organ and not a legal person or entity.

Under the Environmental Management Co-ordination Act of 1999, it

is the National Environment and Management Authority which is vested

and clothed with the legal capacity to be a corporate body. Any reference

to the National Environment Management Authority Board in the body

of the application for leave and orders granted is a misnomer and a

mere misdescription.

3. It is clear that no leave was sought by the applicants to file an application

for declaratory orders. This means that the inclusion of declarations

and/or declaratory orders in the application is improper and unlawful.

In any case, the High Court exercising its jurisdiction of judicial review

as conferred by section 8 of the Law Reform Act (cap 26) has no

jurisdiction to consider applications for declaratory orders or to grant

such orders.

4. The applicants have invoked principles or grounds of:-

· Arbitrariness

· Oppression

· Violation of law and public policy

· Breach of Rules of Natural Justice,

· Respondents acting as judges in their own cause

· Abuse of power

in respect of the decisions being challenged. These are well established

principles in motions of administrative law which if alleged and proven

to exist would make the decisions of the first and second respondents

amenable to judicial review.

5. Judicial review is a judicial process to protect and enhance due process

and the rule of law. These are ultimately underpinned in the Constitution.

However, judicial review strictly does not amount to enforcement of

the Bill of Rights.

6. Section 129 of the Environmental Management and Co-ordination Act,

1999, requiring filing of appeals to the National Environment Tribunal

in the first instance, by a person aggrieved by an order or decision, by

the Director General, NEMA, or committee of the authority, does not

oust the jurisdiction of the High Court of considering applications for

judicial review of the decisions of NEMA. However, it is an arguable

point of law whether the existence of this statutory or alternative remedy

in law precludes the applicants from coming to the High Court to seek

judicial review orders.

7. Once the applicants were served with the replying affidavit of the first

and second respondents, then the applicants were obliged to take

immediate steps to comply with the court order of 19th February, 2004,

namely, to fix the application for hearing on a priority basis. The

applicants have not shown what steps they took towards the prosecution

of their application once the pleadings were all on record and the matter

possible to proceed to hearing.

8. It is the court’s view that the ex parteapplicants have deliberately chosen

not to comply with this court’s order that their application be fixed on

a priority basis. It is the court’s view and it does hold that the leave and

order of stay was granted on this condition. Compliance was absolutely

mandatory.

9. The ex parteapplicants have disobeyed the said orders by their calculated

and deliberate inaction. This is because the existing status quooperates

in their favour. However, they obtained and sustained the situation by

virtue of court orders which were granted on terms. If the ex parte

applicants did not comply with the conditions or terms upon which

leave and stay was granted this court has the power and discretion to

make such orders that will ensure that the said orders are either obeyed

or put a stop to the said non-compliance which is clearly an abuse of

the court process.

10. While there are no orders of certioraribeing sought against the City

Council of Nairobi in respect of any decision it has made, in the event

any orders of prohibition and/or mandamusare granted in favour of the

ex parteapplicants, then such orders may involve and affect the City

Council of Nairobi as the subject of this application relates to

construction of a sewage system or waste disposal system. Even if the

court found that the third respondent strictly ought not to have been

joined as a respondent, it would have been inevitable to enjoin or order

that it be served as an interested party since it would certainly be affected

by any orders which would be granted in favour of the ex parte

applicants.

11. The court declines to strike out the notice of motion dated 24th February,

2004 as prayed in order 2 of the first respondent’s application and in

the third respondent’s application. However, in exercise of this court’s

inherent jurisdiction and to prevent the continued abuse of the process

of the court by the ex parteapplicants, the court allows order 1 of the

said notice of motion and hereby set aside and vacates the order of stay

granted on 19th February, 2006 by this court. The said order of leave is

hereby discharged forthwith.

12. For the avoidance of doubt, the first, second and third respondents

are at liberty to proceed to carry out, exercise and discharge their

respective statutory powers and duties irrespective of the pendency of

the notice of motion dated 24th February, 2004. The ex parteapplicants

may prosecute the same at the pace they desire or not at all.

Application allowed.

Cases

1. Mombasa Seaport Duty Free ltd v Kenya Ports AuthorityMiscellaneous

Civil Application No 759 of 2004

2. Aga Khan Education Service Kenya v Republic, ex parte Ali Seif & 3

othersCivil Appeal No 257 of 2003

3. Kenya National Examinations Council v Republic ex parte Geoffrey

Gathenji Njoroge & othersCivil Appeal No 266 of 1996

4. Hadkinson v Hadkinson[1952] All ER 567; [1952] P 285

5. R v Kensington Income Tax Commissioners, ex parte Princess Edmond

De Polignac[1917] 1 KB 486

Texts

Hailsham, Lord et al(Eds) (1992) Halsbury’s Laws of EnglandLondon:

Butterworths 4th Edn Reissue p 277

Statutes

1. Constitution of Kenya sections 60, 70, 77(4); 83; 84

2. Constitution of Kenya (Protection of the Fundamental Rights &

Freedoms of the Individual) Practice & Procedure Rules, 2001

(Constitution of Kenya Sub Leg)

3. Civil Procedure Rules (cap 21 Sub Leg) order L rules 2, 7, 17; order

LIII rule 1(4); 4

4. Law Reform Act (cap 26) section 8

5. Environmental Management and Co-ordination Act (No. 8 of 1999)

section 129 (1), (2)

6. Local Government Act (cap 265)

7. Town Planning Act

Advocates

Kariuki Muigua & Company Advocatesfor the ex parteApplicants

Mr Mwenesifor the 1st and 2nd Respondents

September 20, 2006, Ibrahim Jdelivered the following Ruling.

This is an application by the first respondent, the National Environment

Management Authority and is made under the provisions of order 50,

rules 1,2 and 17 and order 53,rule 1(4) and section 60 of the Constitution

of Kenya and section 8, Law Reform Act, chapter 26 Laws of Kenya. It

seeks the following orders that:-

1. The stay granted by the Honourable Mr Justice Isaac Lenaola on the

19th February,2004 and brought to the attention of the respondent in

hand written form stating that:-

“Leave granted under 2 above do operate as a stay in

terms of prayer 4 of the application dated 18. 2.2004”

and the penal notice issued on 19th February,2004 are set aside and

vacated.

2. The application for judicial review presented to the court on 24th

Febrauary,2004 by Notice of Motion dated 24th February,2004 and

premised on the order of grant of leave to apply made by the Honourable

Mr Justice Isaac Lenaola on the 19th February, 2004 is dismissed and

the Notice of Motion struck out with costs to the respondents.

3. Costs of this application are awarded to the applicant the National

Environment Management Authority.

The applicant sets out the following grounds in support of the application

namely, that:-

(i) The applicant relies on the replying affidavit of Professor Francis

Dommy Pitt Situma sworn and filed in these proceedings on the 7th

April, 2005 and served on the concerned parties that same day.

(ii) At paragraph 8 of the affidavit shows that there is to date no extracted

and perfected order for leave and stay in these proceedings.

(iii) Paragraphs 9 through to 15 of the affidavit show that no attempt has

been made or is being made to comply with the conditions in the orders

made by the Honourable Mr Justice Isaac Lenaola who granted leave

and stay. The learned judge had directed that a hearing date should be

fixed on priority basis once the Notice of Motion commencing the

judicial review proceedings had been filed. No such date has been fixed.

(iv) Paragraphs 16, 17, 18 and 29 of that affidavit show that the application

for judicial review is an abuse of the court process, scandalous and

frivolous: the relief’s sought in the Notice of Motion does not tally

with the relief for which leave was sought and granted contrary to order

53 and rule 4.

(v) Paragraphs 39 and 40 of Professor Situma affidavit show that the

application for judicial review is for the enforcement of fundamental

rights and freedoms enshrined in the Constitution of Kenya and an

application for such enforcement should be under the Constitution

(Protection of Fundamental Rights and Freedoms of the individual)

Practice and Procedure Rules, 2001 (Legal Notice No 133 of 2001).

(vi) Paragraph 45 of that affidavit shows that at the ex parteapplication

for leave to apply for judicial review crucial and material information

relating to the City Council of Nairobi ‘effluent standards for disposal

into natural watercourses’ was suppressed contrary to law and laid

down procedure on ex parteapplications.

(vii) The application for judicial review is incompetent, frivolous and

vexatious of the National Environment Management Authority and an

abuse of the process of the court and is prematurely in court as there

has been no appeal to the National Enviroment Tribunal in the first

instance as required by section 129 of the Environmental Management

Co-ordination Act, 1999. See paragraphs 50, 51, 52, 53, and 54 of

Professor Situma’s affidavit already referred to herein.

(viii) The Honourable court the High Court has inherent powers and

jurisdiction to grant this present application.

(ix) There is in fact and law no proper application for judicial review to

proceed to full hearing.

The application is also supported by two affidavits, one sworn on 7thApril,

2005 by the director of Legal Services of the first respondent Prof Francis

DP Situma and the other by counsel for both the first and second

respondents, Mr SM Mwenesi sworn on 10th May,2005.

The application is opposed by the three exparteapplicants who filed

grounds of opposition and a replying affidavit sworn by a director of the

first exparteapplicant and first respondent herein, Mr Hamed Ehsani on

16th May, 2005. The third respondent, the City Council of Nairobi filed

two affidavits in support of the first respondent’s application and was

sworn by its Assistant Town Clerk (Legal), GCK Katsoleh.

Having carefully considered the application herein, the affidavits and the

submissions by the three counsel, I would start by stating that this court

exercising its inherent jurisdiction is entitled to entertain and consider an

application to strike out a notice of motion made under the provisions of

order 53, of the Civil Procedure Rules seeking judicial review orders.

However, such an application can only be granted in very exceptional

circumstances. For instance, if the court has no jurisdiction to determine

the issues in dispute or to grant the orders sought, an aggrieved party

need not wait until the hearing of the substantive application to have the

question of jurisdiction dealt with. I dealt with a similar situation recently

in Miscellaneous Civil Application No 759 of 2004, Mombasa Seaport

Duty Free Ltd v The Kenya Ports Authority(unreported) and only due to

the similarity of issues, I wish to refer to an observation I made in this

regards:-

“................This may be particularly necessary, if the

grant of leave was ordered to operate as a stay of the

decision being challenged and the aggrieved party has

been prejudiced or adversely affected. Considering the

length of time proceedings take to be concluded in our

courts, an aggrieved party has a right to seek termination

of the proceedings by way of notice of motion to strike

out the original notice of motion. This is called selfhelp.

However, it is to be noted that this action would

only be entertained in exceptional circumstances e.g.

where the court lacks jurisdiction ab initio, where the

application is statutorily time – barred etc. It would be

wrong and improper for an aggrieved party to seek to

strike out merely on allegations of wrong or improper

exercise of discretion by the judge granting the

leave...........”

The court was guided by the decision of the Court of Appeal in Aga Khan

Education Services Kenya v Republic, ex parte Ali Self & 2 othersCivil

Appeal No 257 of 2003 where it was held:-

“.........We would, however, caution practitioners that

even though leave granted ex parte, can be set aside on

an application, that is a very limited jurisdiction and

will obviously be exercised very sparingly and on very

clear – cut cases, unless it can be contended that judges

of the superior court grant leave as a matter of course.

We do not think that is correct. Unless the case is an

obvious one, such as where an order of certiorariis

being sought and it is clear to the court that the decision

sought to be quashed was made more than six months

prior to the applicant coming to court, and there is,

therefore no prospects at all of success, we would

ourselves discourage practitioners from routinely

following the grant of leave with application to set aside

leave............”

Having said the foregoing and set out the threshold in this ruling, I would

first ask myself, what are the jurisdictional issues which have been raised

by the first respondent’s application? Having carefully studied the nine

grounds set out in the application, I am of the view that grounds (iv), (v)

and (vii) raise or disclose issues of the jurisdiction of this court to grant

the orders sought in the Notice of Motion dated 24th February, 2004. I

will deal with them one after the other:-

(iv) Paragraphs 16,17,18 and 29 of that affidavit show

that the application for judicial review is an abuse of

the court process, scandalous and frivolous, the relief

sought in the Notice of Motion does not tally with the

relief for which leave was sought and granted contrary

to order 53 rule 4.

It is trite law that the substantive application for judicial review orders

upon the grant of leave to file it must apply or pray for the specific orders

for which leave was granted. Leave being a mandatory and prerequisite

requirement, the application must comply with the terms of the leave

granted and the orders tally with those for which leave was granted.

Regarding the name of the first respondent and whether the correct party

has been sued, I would say that there can be no dispute that the decision

contained in the letter dated 5th February,2004 is that of the National

Environment Management Authority. The Authority’s Board is merely

an internal organ and not a legal person or entity. Under the Environment

Management Co-ordination Act of 1999, it is the first respondent which

is vested and clothed with the legal capacity to be a corporate body. It is

my view therefore that any reference to the National Environmental

Management Authority Board in the body of the application for leave and

orders granted are a misnomer and a mere misdescription. In any event,

the naming of the parties in the heading of the application for leave and

the orders granted are clear and properly named and refer to the first

respondent.

With regard to the reliefs sought and upon perusal of the chamber summons

dated 18th February,2004 and the notice of motion dated 24th

February,2004, it is clear that no leave was sought by the applicants to

file an application for declaratory orders. This means that the inclusion

of declarations and/or declaratory orders in the application are improper

and unlawful. In any case, the High Court exercising its jurisdiction of

judicial review as conferred by section 8 of the Law Reform Act, chapter

26, Laws of Kenya has no jurisdiction to consider applications for

declaratory orders or to grant such orders. I do not agree with the

applicants submissions that the High Court can invoke its powers under

section 60 of the Constitution to grant declarations or declaratory orders

in judicial review proceedings. This court is guided and bound by the

decision of the Court of Appeal in Kenya National Examination Council

v Republic ex parte Geoffrey Gathenji Njoroge and othersCivil Appeal

No 266 of 1996 in which the efficacy and scope of judicial review remedies

in Kenya were judicially expounded.

(v) Paragraphs 39 and 40 of Professor Situma’s affidavit

show that the application for judicial review is for the

enforcement of fundamental rights and freedoms

enshrined in the constitution of Kenya and an

application for such enforcement should be under the

Constitution (protection of Fundamental Rights and

Freedoms of the Individual) Practice and Procedure

Rules, 2001 (Legal Notice No 133 of 2001).

I have considered the submissions in support of the above mentioned

ground and the reply. I have also carefully perused the Notice of Motion

dated 24th February,2004 and the statutory statement. The applicant’s

seek orders of prohibition, three orders of certiorariand three orders of

mandamus. I have already dealt with the orders of declarations. The

three orders of prohibition, certiorariand mandamusare judicial review

orders and remedies.

The applicants have referred to the decisions sought to be quashed by

orders of certiorarias unlawful, adverse and unconstitutional. Strictly,

the applicants need not have described the decisions of the first and second

respondents in these terms. However, having used these terms, and in

particular referring to the decisions as “inter aliaunconstitutional” does

not make their application as one seeking the enforcement of Fundamental

Rights and Freedoms under the provisions of section 84 of the constitution.

What are important are the remedies sought and the basis or grounds for

seeking them. We have already seen that the substantive remedies sought

are orders of prohibition, certiorariand mandamus. All these are judicial

review remedies as envisaged by the Law Reform Act and order 53 of the

Civil Procedure Rules.

In my view, the statutory statement in the substantive pleading in judicial

review proceedings. The Notice of Motion is merely the legal or

procedural vehicle for commencing the proceedings and bringing the

statutory statement before the court. The reliefs sought and the ground is

in the notice of motion and the statutory statement must be consistent and

tally with each other. I find that the orders sought in the Notice of Motion

and the statutory statement are similar.

What of the grounds? If the grounds set out in the application refer to and

allege the violations of Fundamental Rights and Freedoms as protected

by the provisions of sections 70 to 83 (inclusive) then one could rightly

claim that the application seeks the enforcement of substantive

constitutional rights. The grounds set out in the application and the

statutory statement are as follows;-

a) The acts by the respondents are arbitrary and ultra viresthe Local

Government Act, Town Planning Act and Environment management

Co-ordination Act.

b) The acts of the respondents are illegal, unconstitutional arbitrary and

oppressive.

c) The acts of the respondents are contrary to the law and public policy.

d) The respondents’ acts are activated by malice and irrelevant

considerations

e) The respondents’ acts are in breach of the rules of natural justice.

f) The respondents have illegally acted as judges in their own cause.

g) The remedies prayed for will stop the respondents from abusing their

powers.

h) The applicants shall suffer grave irreparable business loss and loss of

income if the business premises are closed down.

i) The said loss cannot be compensated for and or adequately compensated

by way of damages.

Apart from the reference to the term “unconstitutional” in ground (b), I

do hold that all the grounds and/or basis for the application in grounds

(a), (b), (c), (d), (e), (f) and (g) are founded on Administrative law and

judicial review principles. Grounds (h) and (i) are alleged consequential

damage or injury that the applicants claim they will suffer as a result of

the implementation of the decisions by the first and second respondents.

The applicants have invoked principles or grounds of:-

· Arbitrariness

· Oppression

· Violation of law and public policy

· Breach of rules of natural justice,

· Respondents acting as judges in their own cause

· Abuse of power

in respect of the decisions being challenged. These are well established

principles and motions of administrative law which if alleged and proven

to exist, would make decisions of the first and second respondents

amenable to judicial review.

It is true that the applicants and in particular the verifying affidavit of Mr

Hamed Ehsani (paragraphs 47 and 48), have invoked the provisions of

section 77 (4) of the Constitution. However, this reference does not

constitute or make the application before the court to be a constitutional

reference for the enforcement of fundamental rights and freedoms. It is

my view that many breaches of the due process, principles of good

governance and violations of the express provisions of statutory provisions

and law often lead to or have the effect of violating the fundamental rights

and freedoms of the individual. However, what is important as far as the

jurisdiction of the court and the legal procedures are concerned is the

manner in which the proceedings have been commenced and the remedies

that are sought. Judicial review to me is a judicial process to protect and

enhance due process and the rule of law. These are ultimately underpinned

in the Constitution. However, judicial review strictly does not amount to

enforcement of the Bill of Rights ( Chapter 5 of the Constitution). This is

expressly provided for in section 84 of the Constitution.

In conclusion on this point, references and the opinion of the deponent of

the verifying affidavit invoking the provisions of the Constitution do not

by themselves, make an application for judicial review to be a

constitutional reference. In any case, the reliance on the constitution is

contained in only a few paragraphs and does not affect the nature of the

proceedings.

(vii) The application for judicial review is incompetent,

frivolous and vexatious of the National Environment

Management Authority and an abuse of the process of

the court and is prematurely in court as there has been

no appeal to the National Environment Tribunal in the

first instance as required by section 129 of the

Environmental Management Co-ordination Act, 1999.

See paragraphs 50, 51,52,53 and 54 of Professor

Situma’s affidavit already referred to herein.

Section 129 (1) and (2) of the National Environmental Management Co ordination Act provides as follows:-

“Section 129 (1) any person who is aggrieved by:-

(a) -

(b) -

(c) -

(d) -

(e) the imposition against him of an environmental

restoration order or environmental improvement order

by the Authority under this Act or regulations made

thereunder:

may within sixty days after the occurrence of the event

against which he is dissatisfied, appeal to the Tribunal

in such manner as may be prescribed by the Tribunal.

(2) Unless otherwise expressly provided in this Act,

where this Act empowers the Director-General, the

Authority or Committees of the Authority to make

decisions, such decisions may be subject to an appeal

to the Tribunal in accordance with such procedures as

may be established by the Tribunal for that purpose.”

This provision does not oust the jurisdiction of the High Court of

considering applications for judicial review of the decisions of the National

Environmental Management Authority. However, it is an arguable point

of law whether the existence of this statutory or alternative remedy in

law precludes the applicants from coming to the High Court to seek judicial

review orders. The respondents are entitled to argue that the applicants

are so precluded or barred. This is quite different from a claim that this

court has no jurisdiction to hear the application by virtue of section 129

of the Act. I see no ouster of the court’s jurisdiction. The ex parte

applicants may well be entitled to argue that the right of appeal can only

be exercised if there was due process before the decisions were reached

and that an inquiry of the manner in which the decisions were reached

can only be fairly inquired into by the High Court by way of judicial

review. It is deemed that when the court grants leave then it has found

that the application in its entirety discloses an arguable case for judicial

review. This decision is made by the judge hearing the application for

leave and in exercise of his/her discretion. As a result, the right or

appropriate time to raise this issue is at the hearing of the substantive

application. The grant of leave cannot be set aside or application dismissed

by way of an interlocutory application, to in effect, strike out the

substantive application on this ground before the hearing on its merits.

Having considered the three jurisdictional grounds in the application, I

do hereby find on the basis of the foregoing, that the grounds must fail

and hold that this court has jurisdiction to entertain and consider the notice

of motion. This now brings me to the other grounds in the application

namely, grounds (ii),(iii) and (vi). Ground (i) does not disclose any specific

ground but merely relies on the replying affidavit filed by the first

respondent in respect of the substantive application.

(ii) At paragraph 8 the affidavit shows that there is to

date no extracted and perfected order for leave and stay

in these proceedings.

This is a matter that can be resolved on the basis of the court record.

Upon perusal of the court record/file, I have seen a sealed and signed

order of this court issued on 19th February, 2004. It is duly signed by the

Deputy Registrar. This court has not been told whether this order was

ever served on the respondents or not. The first respondent has alleged

that it was served with a handwritten order and notes of the judge granting

leave. As the applicant/first respondent has not taken issue with the

question of service in grounds in the application, the matter shall rest

there. There are allegations in first respondent written submissions that

the ex parteapplicants have not filed an affidavit of service showing that

all concerned and affected parties have been served as required by order

53, Rule (3) of the Civil Procedure Rules. However, this point is not part

of the list of grounds set out in the application. It is trite that one must set

out the grounds on which an application is founded and the statements of

fact in the affidavit must be confined to the disclosed grounds. It follows

therefore, that I am not obliged to consider these allegations made from

the bar.

(iii) Paragraphs 9 through to 15 of the affidavit show

that no attempt has been made or is being made to

comply with the conditions made by the Honourable

Mr Justice Isaac Lenaola who granted leave and stay.

The learned judge had directed that a hearing date

should be fixed on priority basis once the Notice of

Motion commencing the judicial review proceedings

had been filed. No such date has been fixed.

The ex parteapplicants applied for leave on the 19th February, 2004 before

Justice Isaac Lenaola who granted the same. The judge ordered that the

substantive application be filed within 14 days from the date of the a

grant of leave and the same be fixed for hearing on priority basis. The

first respondent confirmed being served with the hand-written orders,

copies of the chamber summons seeking leave and the penal notice

annexed to it on the same day, 19th February, 2004. The application for

judicial review orders was filed on the 24th February, 2004 but the first

respondent did not disclose in its application when it was served with the

same. The first respondent has not complained about any failure or late

service of the Notice of Motion dated 24th February, 2004.

On the 18th June, 2004, the firm of Kamande & Company advocates entered

a memorandum of appearance on behalf of the first and second

respondents. Two months later, the said firm filed the first and second

respondent’s replying affidavit. It was sworn by Winny Wamaitha

Kamande on 9th August,2004. It was the substantive reply to the

application and contained detailed averments of facts touching on the

merits of the case.

Due to the lack of facts as to what transpired between 24th February, 2004

and 18th June, 2004 and the fact that there is no complaint by the first

respondent about any delay in service of the Notice of Motion, the less I

say about this period the better. However, once the applicants were served

with the replying affidavit of the first and second respondents, then the

applicants were obliged to take immediate steps to comply with the court

order of 19th February, 2004, namely, to fix the application for hearing on

a priority basis. The applicants have not shown what steps they took

towards the prosecution of their application once the pleadings were all

on record and the matter possible to proceed to hearing. The applicants

this time certainly did nothing to set down the application for hearing.

On the 1st October, 2004 the first and second respondents retained new

counsel as it would appear from their subsequent replying affidavit that

there was some controversy as to the appointment of Kamande and

Company, Advocates to act for the first and second respondents. This

does not concern the court but I would understand why the two respondents

were quiet between 9th August, 2004 when Kamande & Company

Advocates filed the first replying affidavit and 1st October, 2004 when

they retained new counsel. However, it is not the conduct of the

respondents which is first under scrutiny but that of the applicants who

were granted leave and stay upon conditions by this court.

Again upto the time the new advocates came onto record on 1st October,

2004 there is no evidence that the applicants took any single step to set

down their application for hearing. The applicants through their counsel

wrote letters on 27th October, 2004 addressed to both M/S Kamande &

Company advocates and S Musalia Mwenesi advocates inquiring as to

which firm would act for the first and second respondents or whether

they would be acting jointly. In the first applicant’s affidavit, it was

deponed that upto October, 2004 there were conflicting signals as to the

firm which was properly on record for the first and second respondents.

It is stated that the ex parteapplicants advocates were served with the

notice of appointment of advocates filed by S Musalia Mwenesi on the

28th October 2004. However, M/S Kamande & Company, advocates still

insisted that they were on record in the matter. The ex parteapplicants

asserted that in the spirit of fair play and upholding of justice, they were

constrained not to proceed with the matter since the first and second

respondents were not clear on their legal representation.

The ex parteapplicants also claimed that they had severally invited the

two respondents and the City Council of Nairobi, the third respondent

but have in their continuous quest to delay the hearing of the application

failed to turn up at the court Registry to take dates for the hearing of the

application,. The ex parteapplicants purportedly annexed copies of

documents to Mr Hamed Ehsani’s affidavit to prove this (“HE5). However

to this court’s consternation, their was no single letter of invitation by the

said applicants to the respondents inviting them to fix hearing dates. To

the contrary, there is one letter dated 14. 10. 2004 from the counsel of the

third respondent inviting the ex parteapplicant’s advocates and Kamande

& Co Advocates, for the first and second respondents to fix a hearing

date on 26th October, 2004. The second letter is of quite some interest and

significance. It is a letter dated 11th November, 2004 by Kariuki Muigua

& Company, Advocates to their clients the three ex parteapplicants. It

reads as follows:-

“ ..............................................

17th November,2004

GREENHILLS INVESTMENTS,LIMITED

MARKET MASTERS LIMITED/SUGAR CANDY

LIMITED

NAIROBI.

Att. Mr Sanjay Shah.

Dear Sirs,

RE: MISC. APPLICATION NO.169 OF 2004

MARKET MASTERS LIMITED, GREENHILLS

INVESTMENTS LIMITED & SUGAR CANDY

LIMITED

–VSNATIONAL

ENVIRONMENT MANAGEMENT

AUTHORITY AND 2 OTHERS.

We refer to this matter.

Kindly note that we did not take a hearing date on the

26th October,2004 as the respondents did not attend

although they are the ones who had invited us. We

shall be taking a date for next year.

In the meantime kindly address our interim fee note

earlier sent to you

Yours faithfully,

KARIUKI MUIGUA & CO. ADVOCATES”

This copy of the said letter was annexed to the replying affidavit of the ex

parteapplicants and the contents are absolutely clear. The deponent’s/

Mr Hamed Ehsani’s statement that the bundle “HE 5” contained letter of

invitation was false and intended to mislead this court. The said documents

were annexed to give substance to the exparteapplicant’s claims that

they have been diligently taking steps with a view of prosecuting the

application with a hope that this court would be cursory and fail to notice

the true contents of the 2 letters.

It is the third respondent which had sent out the invitation to fix a hearing

date and not the ex parteapplicants as alleged in the affidavit of Mr Hamed

Ehsani. On the material day, it would appear that the respondents did not

send a representative to fix a date, What did the applicants do when they

attended at the Registry? They did not take a hearing date and serve the

hearing notices on the respondents. Instead their counsel writes to them

telling them what happened and that:-

“.............we shall await to be invited again. We shall

be taking a date for next year..”

These are the counsel for the ex parteapplicants who came before this

court under a certificate of urgency, for orders of leave and stay and who

felt so much threatened that they initially served hand-written court orders.

These are the parties who were ordered by this court to fix the hearing of

the application “on priority basis”. The said counsel not only deliberately

did not take a date but announced that they would wait to be invited.

Whose application was it? Who was given the orders of stay on terms?

Who was told to fix the hearing on a priority basis? It was not the

respondents but kith applicants. Without butting an eyelid the applicants

counsel declared that they would take “ a date for next year” . Indeed by

the time the first respondent took out this application on 10th May, 2005,

the ex parteapplicants had not procured or fixed a hearing date of their

application. This is despite the fact that they have enjoyed the order of

stay from 19th February, 2004 and on the express orders of this court that

the application be fixed for hearing on priority basis.

The first respondent has invited this court to find that the ex parteapplicants

are in contempt of the court orders made on 19th February 2004 on the

ground that they have deliberately disobeyed the orders of the court and

continue to do so. The first respondent has relied on the English case of

Hadkinson v Hadkinson[1952] 2 All ER 567 and invited the court to

refuse to hear the applicants’ Notice of Motion in the circumstances. My

understanding of the prayers in the application herein is that this court

exercises its powers and discretion and dismisses the Notice of Motion

for the said disobedience and/or non-compliance or in the alternative to

set aside and vacate the order of stay granted.

It is my view that the ex parteapplicants have deliberately chosen not to

comply with this court’s order that their application be fixed on a priority

basis. It is my view and I do hold that the leave and order of stay was

granted on this condition. Compliance was absolutely mandatory. The

ex parteapplicants have disobeyed the said orders by their calculated and

deliberate inaction. This is because the existing status quooperates in

their favour. However, they obtained and sustained the situation by virtue

of court orders which were granted on terms. If the ex parteapplicants

did not comply with the conditions or terms, upon which leave and stay

was granted this court has the power and discretion to make such orders

that will ensure that the said orders are either obeyed or put a stop to the

said non-compliance which is clearly an abuse of the court process.

The usual punishment for contempt of court is either the court refusing

the hear the contemnor or by committal or attachment until the contempt

is purged. However, the scenario here is quite different in that the

disobedience is due to a negative act, non-compliance. As a result, this

not a case of ordinary contempt of court but a case of actual gross abuse

of the court process. In Halsbury’s Laws of England, 4th Edition, Reissue,

at P.277, abuse of the process of the court is discussed:-

“ The court has power to punish as contempt any

misuse of the court’s process. Thus forging or altering

of court documents and other deceits of like kind are

punishable as serious contempt. Similarly, deceiving

the court or the court’s officers by deliberately

suppressing a fact, or giving false facts may be a

punishable contempt.

Certain acts of a lesser nature may also constitute an abuse of the process

as, for instance, initiating or carrying on proceedings which are wanting

in bona fides or which are frivolous, vexatious as oppressive. In such

cases the court has extensive alternative powers to prevent an abuse of its

process by striking out or staying proceedings without leave.......”

It is my view that this court is able to punish the abuse of the process of

court here without necessarily citing the ex parteapplicants for contempt

of court. In this case, the ex parteapplicants after obtaining ex parte

order of leave in accordance with the law and discretion of the court also

secured an order that the grant of leave would operate as stay of the orders,

recommendations and directives of the respondents. The orders were

granted and the applicants ordered to fix a hearing date on priority basis.

To me this was the condition for the grant of the orders. The ex parte

applicants have deliberately disobeyed the said orders. This amounts to

an abuse of the court process and oppressive to the respondents. This

court shall not countenance this type of conduct and allow its orders to be

abused and used to mete out injustices and oppression to the other parties.

The ex parteapplicants obviously do not intend to prosecute their

application expeditiously or on priority basis. It is their choice and wish

but they shall not be allowed to do so at the expense of the respondents

who have patiently and law – abidingly obeyed the orders of stay for over

a year by the time this application was filed. Not a single letter of invitation

to fix a hearing date was sent even after the alleged confusion of legal

representation was over.

Lastly, I come to ground (iv)

(iv) Paragraph 45 of that affidavit shows that at the ex

parteapplication for leave to apply for judicial review

crucial and material information relating to the City

Council of Nairobi ‘ effluent standards for disposal into

natural water courses’ was suppressed contrary to law

and laid down procedure on ex parteapplications.

I have considered this ground, paragraph 45 of Prof Situma’s affidavit

and submissions. The first respondent’s allegations that there was

suppression of material facts at the time the applicants obtained leave and

stay are not supported by sufficient evidence. For this court court to take

action on the basis of non-disclosure of material facts there must be clear

and cogent evidence to prove the said fact. It is not a matter of conjecture

inferences and conclusions. I am unable thus to apply here the principles

in the case of Reg v Kensington Income Tax Commissioners ex parte

Princess Edmond de Polignac(1917) I KB 486 CA.

The third respondent, the City Council of Nairobi on its part had filed an

application dated 10th June, 2005 seeking inter aliafor an order:-

“ 2. That the chamber summons application dated 18th

February, 2004 seeking leave to file judicial review

orders and notice of motion dated 24th February, 2004

seeking judicial review orders be struck out and or

dismissed as against the 3rd respondent with costs.”

The third respondent asserts that the application discloses no cause of

action against it. At the hearing of the first respondent\s application it

was agreed by counsel that this application be heard together with that of

the first respondent. The third respondent supported the first respondent’s

application and prosecuted its own.

Upon careful consideration of third respondent’s application I do find

that strictly while there are no orders of certioraribeing sought against

the City Council of Nairobi in respect of any decision it has made. In the

event any orders of prohibition and/or mandamusare granted in favour of

the ex parteapplicants, then such orders may involve and affect the City

Council of Nairobi as the subject of this application relates to construction

of a sewage system or waste disposal system. Even if the court found

that the third respondent strictly ought not to have been joined as a

respondent, I think that it would have been inevitable to enjoin or order

that it be served as an interested party since it would certainly be affected

by any orders which would be granted in favour of the ex parteapplicants.

As a result, since the third respondent has filed its response and has been

involved in these proceedings to date, I direct that it continues to be a

party herein as the third respondent.

The end result is that I do hereby declined to strike out the notice of

motion dated 24th February, 2004 as prayed in order 2 of the first

respondent’s application and in the third respondent’s application.

However, in exercise of this court’s inherent jurisdiction and to prevent

the continued abuse of the process of the court by the ex parteapplicants,

I do hereby allow order 1 of the said notice of motion and hereby set

aside and vacate the order of stay granted on 19th February, 2006 by this

court. The said order of leave is hereby discharged forthwith. For the

avoidance of doubt, the first, second and third respondents are at liberty

to proceed to carry out exercise and discharge their respective statutory

powers and duties irrespective of the pendency of the notice of motion

dated 24th February,2004. The ex parteapplicants may prosecute the

same at the pace they desire or not at all.

The costs of these applications shall be borne by the ex parteapplicants

and paid to the respondents.