[2021] KEELC 4578 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA

PETITION NO 3 OF 2020

RICHARD K. SIBILIBILI (Suing on

Behalf of Cheptais Community Forest

Association and residents of Chebombai area)............................. PETITIONER

VERSUS

KENYA FOREST SERVICE.................................................1ST RESPONDENT

CABINET SECRETARY

MINISTRY OF INTERIOR..................................................2ND RESPONDENT

CABINET SECRETARY MINISTRY OF

ENVIRONMENT AND FORESTRY..................................3RD RESPONDENT

REGIONAL COMMANDER OF KENYA

FOREST SERVICE – WESTERN REGION.....................4TH RESPON.DENT

ECO SYSTEM CONSERVATOR

BUNGOMA COUNTY...........................................................5TH RESPONDENT

THE COUNTY COMMISSIONER

BUNGOMA COUNTY..........................................................6TH RESPONDENT

COUNTY BASE COMMANDER.

MT ELGON FOREST..........................................................7TH RESPONDENT

DEPUTY COUNTY COMMISSIONER

CHEPTAIS SUB – COUNTY................................................8TH RESPONDENT

THE FOREST MANAGER

CHAPTAIS FOREST STATION......................................... 9TH RESPONDENT

ATTORNEY GENERAL.....................................................10TH RESPONDENT

R U L I N G

RICHARD K. SIBILIBILI(the Petitioner herein and suing on behalf ofCHEPTAIS COMMUNITY FOREST ASSOCIATION AND RESIDENTS OF CHEBOMBAI AREA) filed this Petition on 6th October 2020 alleging a violation of the Constitutional rights as well as other United Nations principles and protocols in relation to Members of theCHEPTAIS COMMUNITYwho have been evicted from their habitual residence in CHEBOMBAI area in CHEPTAIS LOCATIONwhich is some 20 kilometres from CHEPTAIS FOREST. The Petitioner therefore sought various declaratory orders which are not relevant for purpose of this ruling.

By an amended Notice of Motion dated 7th October 2020 and premised on Article 50 of the Constitution, Sections 1A, 1B, and 3A of the Civil Procedure Rules and Rules 11, 12, 20 and 21 of the Protection of Fundamental Rights and Freedomsof the Individual (High Court Practise and Procedure Rules 2006), the Petitioner sought the following main orders: -

(a) Spent

(b1) Spent

(b2) Spent

(b3) That pending the hearing and determination of the Petition, this Court be pleased to issue a temporary order restraining the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th Respondents, their employees, servants and/or agents from the on – going eviction of members of CHEBOMBAI area.

When the application was placed before me on 7th October 2020, I granted ex – parte orders restraining the Respondents, their servants, employees or agents from interfering with the peaceful harvesting of food crops as cultivated by members of the CHEPTAIS COMMUNITY within CHEPTAI FOREST and also from evicting them as sought in prayers (b1) and (b2) of the Notice of Motion.

The application is premised on the grounds set out therein and is also supported by the affidavit of RICHARD K SIBILIBILI.

The gravamen of the application is that on diverse dates in the month of June 2020, the 1st to 8th Respondents through their employees, servants and/or agents and without regard to the law and in total violation of the Constitution evicted more than 200 families from their habitual residence in CHEBOMBAI area in CHEPTAIS LOCATION of MT ELGON claiming that they had encroached onto forest land. Houses were burnt leaving the families in the cold without food and shelter thus exposing them to diseases including COVID – 19. As a result, while some of the displaced families found shelter in the markets, others sought refuge in the nearby CHESAKWO CAVES where they were still living by the time this Petition was filed. This is in violation of Article 43 (1) (b) of the Constitution which guarantees every person’s right to adequate housing and reasonable standards of sanitation.

On 21st and 22nd September 2020, the displaced families and the members of CHEPTAIS COMMUNITY FOREST ASSOCIATION appealed to 6th and 8th Respondents to allow them to go back to their farms and harvest their crops. They received no response to their appeal. Instead, the 1st to 9th Respondents continue to eject the families even from the caves and sealed off more than 300 acres of maize and onions planted by the members of the CHEPTAIS COMMUNITY FOREST ASSOCIATION under the shamba system. The Respondents are demanding a fee of Kshs. 50,000/= before allowing any member to harvest their crop yet no notice was issued to them under the FOREST ACT 2005. That the CHEPTAIS COMMUNITY FOREST ASSOCIATION is a duly registered entity holding a Certificate NO SOC/54587 and are therefore entitled to cultivate trees and food in the forest. That the 5th Respondent entered into an agreement with members of the CHEPTAIS COMMUNITY FOREST ASSOCIATION through which each member was given a portion of land to practice PLANTATION, ESTABLISHMENT AND LIVELIHOOD IMPROVEMENT SCHEME (PELIS). Following that agreement which was duly signed both by the Chairman of the ASSOCIATION MR GEOFFREY CHESTIT and the Forester – in – Charge of CHEPTAIS FOREST STATION MR EBEYWA SAMUEL, the members of the ASSOCIATION have worked so hard to improve the forest and even contributed Kshs. 600,000/= which was handed over to the 9th Respondent to purchase seeds. However, those seeds were never delivered yet receipt of the money was acknowledged by the 9th Respondent. That although the Respondents have always been aware about the legal activities being carried out by members of the ASSOCIATION in the forest, they have continued to grossly abuse the Constitutional rights of the Petitioners.

Annexed to the application are various documents including the Constitution of the CHEPTAIS COMMUNITY FOREST ASSOCIATION, list of members, Certificate of registration, agreement between the ASSOCIATION and the 1st Respondent as well as a letter dated 29th May 2013 from the 1st Respondent and addressed to the ECOSYSTEM CONSERVATOR BUNGOMA cultivating the ASSOCIATIONmembers to carry out plantation establishment and livelihood improvement (PELIS) in CHEPTAIS FOREST STATION.

When the application was placed before me on 7th October 2020, I granted prayers (b1) and (b2) and directed that the Respondents be served with the Notice of Motion together with the Petitioners’ submissions within 7 days after which the Respondents would have 14 days to file their responses and submissions. The matter was fixed for mention on 30th October 2020 to confirm compliance and take a date for ruling.

However, on 26th October 2020, the Petitioners filed another application also under Certificate of Urgency. I certified the same as urgent an also directed that it be served upon the Respondents within 7 days together with submissions and the Respondents would also have 14 days to file their responses and submissions. I further directed that I would deliver one ruling on both applications and fixed a mention date for 11th November 2020 to confirm compliance. However, by 23rd November 2020, the Petitioners had not complied and sought more time to do so which MR TARUS (STATE COUNSEL) for all the Respondents did not object. The matter was therefore listed for mention on 10th December 2020 but was disrupted as the Court was closed following the COVID – 19 exposure. It was subsequently mentioned on 17th December 2020 when a ruling date was taken for 28th January 2021.

In the Notice of Motion dated 26th October 2020, the Petitioners sough the following orders: -

1. Spent

2. That this Honourable Court be pleased to order and summon the Principal Officers, employees, servants and/or agents of the 1st and 2nd Respondents namely: -

(a) JULIUS KAMAU

(b) INSPECTOR AFWATWA

(c) VITALIS OSODO

(d) KEBENEI KOECH

(e) ZABLON NDIEMA

(f) PATRICK KIDAGE

(g) ELIAZ SAEKWO and

(h) NDIEMA MONOO

to appear before this Honourable Court to show why they should not be cited for contempt of Court or be committed to civil jail for 6 months for disobedience of the orders issued on 7th October 2020 in this Petition.

3. Spent

4. That the costs of this application be borne by the 1st Respondent.

The application is predicated on the grounds set out therein and is also supported by the affidavits of RICHARD K. SIBILIBILI, YOHANA NAIBEI and RISPER C. MARRAN. The same is founded under the provisions of Sections 1, 1A, 1B and 3A of the Civil Procedure Act, Section 5 of the Judicature Act and Article 159 of the Constitution.

The gist of the application is that on 7th October 2020, this Court issued an order of temporary injunction restraining the 1st to 9th Respondents, their employees, servants or agents from interfering with the peaceful harvesting of food crops planted by members of the CHEPTAIS COMMUNITY FOREST ASSOCIATION pending hearing of the application and also an order suspending the on –going eviction of the members from their habitual residence. Those orders were served upon the 1st to 9th Respondents on 9th October 2020 but they have refused to obey the same terming them inconsequential an unnecessary. Instead, the Respondents have continued their illegal activities of evicting the members from CHEBOMBAI area and destroying their food crops. The above named agents of the Respondents have referred to the Court orders issued on 7th October 2020 as fake. That on 15th October 2020, the Petitioner having received a call from one YOHANA NAIBEI CHAIRMAN OF CHEBOMBAI RESIDENTS visited the area and saw the damaged crops and also learnt that livestock was being confiscated. That the contemnors are extorting between Kshs. 6,000/= to Kshs. 50,000/= from the members to allow them to harvest their crops resulting in loss of millions of shillings to the members. That this Court has a duty to ensure that the administration of justice is not interfered with. It is essential therefore for the maintenance of law and order and to maintain the authority and dignity of this Court that the contemnors are punished by detention in prison for 6 months.

In responses, MR VITALIS OSODO the BUNGOMA ECOSYSTEM CONSERVATOR filed a replying affidavit dated 16th November 2020 in which he deponed, inter alia, as follows: -

That the Respondents did not disobey the orders issued on 7th October 2020 as alleged by the Petitioners.

That CHEBOMBAI area within CHEPTAIS FOREST STATION is GOVERNMENT FOREST LAND.

That by the time the orders dated 7th October 2020 were being issued, the members of CHEPTAIS COMMUNITY FOREST ASSOCIATION had already been evicted from the CHEBOMBAI area of CHEPTAIS FOREST in an operation that was conducted from 19th June to 22nd June 2020 with the members’ crops destroyed leaving nothing to harvest.

That the Petitioner misled the Court that there were crops being harvested by the members or that the members were being asked for money before being allowed to harvest their crops.

That the Petitioner has not satisfied the conditions for the grant of the orders sought and none of the Contemnors were directly served with the orders.

That the Respondents have no problem with the members harvesting their crops if any, which were illegally planted in the forest so long as it is done under the supervision of the KENYA FOREST SERVICES to prevent the planting of new seedlings and further degradation of the forest.

That the application should be dismissed with costs.

The Respondents filed grounds of opposition to the Notice of Motion dated 7th October 2020 terming it as an abuse of the Court process and made in bad faith against public interest in an attempt to illegally occupy GOVERNMENT FOREST. That the orders being sought have already been overtaken by events as the members have already been evicted from the forest. That the Respondents were only performing their duties in line with the provisions of Articles 42and69 of the Constitution. That the conditions for the grant of an order of temporary injunction have not been satisfied and the Notice of Motion dated 7th October 2020 should also be dismissed with costs.

RICHARD K. SIBILIBILI filed a supplementary affidavit dated 7th December 2020 in which he deponed, inter alia, that he has authority to institute these proceedings touching on the violation of the Constitution. That 200 members of the CHEPTAIS COMMUNITY FOREST ASSOCIATION have indeed been evicted from CHEBOMBAI area of CHEPTAIS LOCATION and their crops destroyed on the allegations that they have encroached upon the forest. That it is misleading for VITALIS OSODO to aver that CHEBOMBAI area is within CHEPTAIS FOREST STATION which is GOVERNMENT LAND. That the members of CHEPTAIS COMMUNITY FOREST ASSOCIATION were infact evicted from their ancestral land and it is therefore in the interest of justice that the said Contemnors are summoned by this Honourable Court.

The two applications were canvassed by way of written submissions. The same have been filed both by the Petitioner MR RICHARD K. SIBILIBILI and by MR TARUS Counsel for the Respondents.

I have considered the applications, the rival affidavits and grounds of opposition as well as the submissions.

There are two applications which I shall consider as follows: -

1: THE PETITIONER’S APPLICATION DATED 7TH OCTOBER 2020 FOR AN ORDER OF TEMPORARY INJUNCTION

Order 40 Rule 1 (a) and (b) of the Civil Procedure Rules provides as follows: -

1: “Where in any suit it is proved by affidavit or otherwise –

(a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree: or

(b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit until the disposal of the suit or until further orders.”Emphasis added

In BLACK’S LAW DICTIONARY 10TH EDITION, a Preliminary or temporary injunction is defined as one which is

“ ……….. issued before or during trial to prevent an irreparable injury from occurring before the Court has a chance to decide the case.”Emphasis added.

It is therefore clear from the above that the purpose of a temporary injunction is to preventthat which has not already happened. The first ground upon which the application dated 7th October 2020 reads as follows: -

1: “That on diverse dates in the month of June 2020, the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Respondents, their employees, servants and/or agents without regard to the law and in total violation of the Constitution, evicted more than 200 families from their habitual residences in CHEBOMBAI area in CHEPTAIS LOCATION of MT ELGON claiming that the evicted families encroached forest land.”

The same averment is repeated in paragraph 10 of the supporting affidavit of RICHARD K. SIBILIBILI the Petitioner herein. That means that by the time this Petition and the two applications were being filed in October 2020, the members of the CHEPTAIS COMMUNITY FOREST ASSOCIATION had already been evicted from their usual habitat and their houses and food crops destroyed some four (4) months earlier. Indeed, by the same affidavit, it is deponed that the said members had been forced to live in the markets and caves (paragraph 12) and their crops of maize and onions measuring about 300 acres sealed off (paragraph 16). A temporary injunction such as the one sought herein is normally issued to prevent the occurrence of an event that has not yet occurred or that which is threatened by the Respondent. It cannot be issue to restrain an event that has already occurred. The Petitioner himself having confirmed that the matters complained of happened in June 20220, the application for temporary orders of injunction has been over –taken by events. Indeed, in paragraph 6 of his replying affidavit, VITALIS OSODO the BUNGOMA ECOSYSTEM CONSERVATOR has averred as follows: -

6: “That by the time the orders were being issued on 7th October 2020, the members of CHEPTAIS FOREST APPLICATION had already been evicted from CHEBOMBAI area CHEPTAIS FOREST which operation was conducted from 19th June 2020 to 22nd June 2020 and the Petitioner’s members were all evicted from the forest and the crops destroyed and nothing to be harvested.”

Court orders are not issued in vain. It would not be a judicious exercise of this Court’s discretion to issue orders restraining what has already occurred. This was also affirmed by the Court of Appeal in ESSO KENYA LTD .V. MARK MAKWATTA OKIYA C.A CIVIL APPEAL No 69 of 1991 [1992 eKLR]. The members of the CHEPTAIS COMMUNITY FOREST ASSOCIATION having already suffered the injury that a temporary order of injunction would ordinarily aim at restraining, this Court need not consider the well-known principles set out in the case of GIELLA.V. CASSMAN BROWN & COMPANY LTD 1973 E.A 358 with regard to grant of an order of temporary injunction. That would be a mere academic exercise that serves no useful purpose.

The Petitioner’s Notice of Motion dated 7th October 2020 is therefore for dismissal. And for the avoidance of doubt, the ex - parte injunction orders issued on 7th October 2020 must now be discharged which I hereby do.

2: THE PETITIONER’S APPLICATION DATED 26TH OCTOBER 2020 FOR CONTEMPT OF COURT ORDERS:

Having found that the ex – parte orders of injunction issued on 7th October 2020 were not merited, it is obvious that those orders cannot form the basis of any contempt proceedings against the alleged Contemnors herein.

Firstly, the injunctive orders issued on 7th October 2020 were not capable of being disobeyed as they had already been overtaken by events. There was nothing to injunct.

Secondly, in the application for Contempt, the Petitioner has cited eight (8) individuals whom he wants to be summoned to show cause why they should not be cited for contempt and committed to civil jail for six (6) months.

These persons are: -

1. JULIUS KAMAU

2. INSPECTOR AFWATWA

3. VITALIS OSODO

4. KEBENEI KOECH

5. ZABLON NDIEMA

6. PATRICK KIDALE

7. ELIAZ SAEKWO and

8. NDIEMA MONOO

An allegation of Contempt of Court is a serious matter. The Contemnor may be sent to prison for it and the Court must therefore be vigilant and ensure that the alleged Contemnor knew or had the means of knowing about the orders alleged to have been disobeyed. That is why the standard of proof in contempt proceedings is higher than proof on the balance of probabilities but no exactly beyond reasonable doubt – MUTIKIKA .V. BAHARINI FARM LTD 1985 KLR 229. Therefore, in a case such as this one where named individuals are alleged to have disobeyed this Court’s orders issued on 7th October 2020, it must be established that they were served or knew about the said orders. It cannot be a matter for conjecture.

The orders alleged to have been disobeyed were issued ex – parte. This Court must therefore peruse the Affidavit of Service and be satisfied that the alleged Contemnors were indeed served or had knowledge of the orders. Having perused the Affidavit of Service dated 21st October 2020 by the Process Server named BONIFACE KYALO. I find it to be rather scanty on information. The application itself states that the named eight (8) Contemnors are “Principal Officers, employees, servants and or agents of the 1st and 2nd Respondents.” But what does the Affidavit of Service state about the said 1st and 2nd Respondents? This is what is deponed in paragraph 9, 10, 11 and 12 of the Affidavit of Service sworn by MR BONIFACE KYALO.

9: “That on 13th October 2020, I travelled to Nairobi to serve the 1st, 2nd and 3rd Respondents.”

10: “That on the same day, I proceeded to the offices of 2nd Respondent at around 11:15 a.m where they received my documents by stamping on the front page of my copies as a sign of acknowledgement.”

11: “That on the same day I proceeded to the offices of the 3rd Respondent where I served my documents one (sic) of their Legal Officers and she received and stamped on the front page of my copy.”

12: “That on the same day, I went to the offices of Kenya Forest where I served my documents which were well received and rubber stamped on the front page of my copy as a sign of acknowledgment.”

In response to the above, MR VITALIS OSODO deponed as follows in paragraph 10 of his replying affidavit dated 16th November 2020:

10: “That none of the cited parties were directly served with the Court orders issued on 7th October 2020 as the same was served upon the legal department of our Ministry.”

It is clear from the affidavit of service by BONIFACE KYALO dated 21st October 2020 that the alleged Contemnors whose names were well known were not personally served with the orders issued on 7th October 2020. In his submissions dated 7th December 2020, the Petitioner states as follows with regard to the issue of service.

“Your Lordship, it is not in dispute that the 1st to 9th Respondent were served with the Court Orders. What is contested is that the alleged Contemnors in the application dated 26th October 2020 were not personally served with the said Court Orders. Your Lordship, Kenya’s growing jurisprudence right from the High Court has reiterate (sic) that knowledge of a Court Order suffices to proof (sic) service and dispense with personal service for the purpose of Contempt proceedings. Your Lordship, all the alleged Contemnors are either the Respondents’ employees and/or agents of the 1st Respondent who were duly served with the said Court Orders. We submit that all the alleged Contemnors were aware of the said Court Orders but willfully and deliberately disobeyed them.”

The Petitioner then proceeds to cite the decision in SHIMMERS PLAZA LTD .V. NATIONAL BANK OF KENYA 2015 eKLR. It is of course the correct position in law that knowledge of an order of the Court is sufficient for purposes of citing one for Contempt. Knowledge supersedes service but only if it is shown that the alleged Contemnor knew about the order alleged to have been disobeyed. It is not in dispute that the orders alleged to have been disobeyed were issued ex – parte on 7th October 2020. Therefore, none of the alleged Contemnors could have known about the orders or the consequences of breach thereof. In that case, personal service was important bearing in mind, as I have already stated above, that the alleged Contemnors are persons who are known and have been named in the Notice of Motion dated 26th October 2020. They are the persons who will serve the penalty should the Court find them to be in Contempt of the orders issued on 7th October 2020. Although the Petitioner cited the provisions of the Judicature Act as the applicable law, the orders alleged to have been disobeyed were injunctive orders and, in the circumstances, the applicable law should haven been Section 63 (c) of the Civil Procedure ActandOrder 40 Rule 3(1) of the Civil Procedure Rules. Either way, having opted to cite named individuals for contempt, it was important that they are personally served. In WOBURN ESTATE LTD .V. MARGARET BASHFORTH C.A CIVIL APPEAL N O 18 OF 2015 [2016 eKLR], the Court of Appeal applying Section 5 (10 of the Judicature Act and the Rules applicable in England said: -

“Under Rule 81. 6 and as a general rule, service of the Judgment or Order must be personal on the Contemnor unless the Court dispenses with that requirement. Exceptions to that rule are found in Rule 18. 8 to the effect that personal service will be dispensed with if the Court is satisfied that the Contemnor was notified of it’s terms by telephone, email or otherwise or if the Court thinks it is just to dispense with service.” Emphasis added.

In HALSBURY’S LAWS OF ENGLAND [4TH EDITION] VOLUME 9 PAGE 37, it is provided as follows: -

“As a general rule, not order Court requiring a person to do or abstain from doing an act may be enforced unless a copy of the order has been served personally on the person required to do or abstain from doing the actin question.” Emphasis added.

It is clear that under the Judicature Act, personal service is important if, as in this case, the alleged Contemnors had no prior knowledge of the orders which they are alleged to have disobeyed.

Under Section 63(c) of the Civil Procedure Act, it is provided that: -

“In order to prevent the ends of justice from being defeated, the Court may, if it is so prescribed –

(c) Grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold.” Emphasis added.

And under Order 40 Rule 3(1) of the Civil Procedure Rules which deals with temporary injunctions, it is provided that: -

3(1) “In cases of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the Court directs his release.” Emphasis added.

What is clear therefore is that the Petitioner having elected to cite the above-named Contemnors and bearing in mind that they were not aware about the orders issued by this Court on 7th October 2020, it was imperative that they be personally served. They were not strangers to the Petitioner and that is why the application for Contempt was directed at them. There is nothing to suggest that any attempts were made to serve them with the orders and if so, with what results. The Affidavit of Service by BONIFACE KYALO simply states in paragraphs 10, 11 and 12 that service was in the respective offices of the 1st, 2nd and 3rd Respondents where the named Contemnors are alleged to be Principal Officers employees, servants and/or agents. Given the seriousness with which contempt of Court is taken, and in order to avoid any doubt, there ought to have been proper service of the orders upon the named alleged Contemnors. Unfortunately, that was not done and even assuming that the said orders had not already been over – taken by events, it would have been extremely harsh to cite the said contemnors given the circumstances of this case.

Having already found that the orders issued on 7th October 2020 had infact already been over – taken by events, there would be no basis upon which the named eight (8) alleged Contemnors can be cited for Contempt. The Notice of Motion dated 26th October 2020 must also be for dismissal.

The up – shot of all the above is that both the Petitioner’s Notice of Motion dated 7th October 2020 and 26th October 2020 are devoid of any merit. The same are accordingly dismissed and this being a Public interest litigation, there shall be no orders as to costs.

Orders accordingly.

Boaz N. Olao.

J U D G E

28th January 2021.

Ruling dated, signed and delivered at BUNGOMA this 28th day of January 2021 by way of electronic mail in keeping with the COVID – 19 pandemic guidelines.

Boaz N. Olao.

J U D G E

28th January 2021.