[2022] KENET 720 (KLR)

Sustainable Energy Systems Limited v Kenya Forest Service (Tribunal Appeal 215 of 2017) [2022] KENET 720 (KLR) (Civ) (28 September 2022) (Ruling)

Neutral citation: [2022] KENET 720 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Civil

Tribunal Appeal 215 of 2017

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

September 28, 2022

Between

Sustainable Energy Systems Limited

Appellant

and

Kenya Forest Service

Respondent

Ruling

(On the Appellant/Applicant’s Notice of Motion Application dated 8th February, 2021) 1. Before the tribunal is the appellant/applicant’s notice of motion application dated February 8, 2021 which seeks to have the respondent sanctioned by way of an order of contempt of court arising from the respondent’s alleged non-compliance with our Judgment dated December 5, 2019 and the orders that the respondent reinstates the appellant/applicant’s special use licence dated April 15, 2013.

2. In support of there contempt application the appellant/applicant filed a further affidavit dated November 30, 2021 and deponed by dr (ENG) Gakio Wanyoike, the chairperson of the appellant/applicant. The further affidavit was in further to his supporting affidavit dated February 8, 2021 which was in support of the contempt application; and also in opposition of the respondent’s replying affidavit dated November 1, 2021 and deponed by Laura Yego, the Chief Legal Officer of the respondent.

3. Both parties filed and exchanged written submissions with respect to the contempt application. The appellant/applicant filed the appellant/applicant’s written submissions dated September 29, 2021 while the respondent filed the respondent’s written submissions dated November 1, 2021.

4. The maxim that a party who asserts must prove ( ei incumbit proatio qui dicit, non qui negat) is dispositive of the present application, as it shall be clear in the course of this ruling. The above principle of law is followed in both the common law and civil law jurisdictions; and in both adversarial and inquisitorial justice systems. Section 107 of the Evidence Act also espouses this principle within the Kenyan legal order by stating that:“1. 1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

5. Section 108 of the Evidence Act adds that:“108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

6. In the instant application, the burden of proof was on the appellant/applicant. The applicable standard of proof in contempt proceedings is beyond reasonable doubt. In a contempt application, the tribunal must satisfy itself that the four elements of civil contempt as laid out inNorth Tetu Farmers Co Limited v Joseph Nderitu Wanjohi [ Nyeri HC Civil Case No 13 of 2014] have been satisfied. Those four ingredients are:a.The terms of the order or injunction or undertaking were clear and unambiguous and were binding on the defendant;b.The defendant had knowledge of or proper notice of the terms of the order;c.The defendant acted in breach of the terms of the order; andd.The defendant’s conduct was deliberate.

7. The first two elements are not in dispute in the present case. However, while the appellant/applicant asserts that the respondent deliberately acted in breach of the orders contained in our judgment by failing to reinstate the special use license dated April 15, 2013 the respondent denies the same. In support of its position, the respondent’s replying affidavit avers that the special use license was reinstated by the by the respondent’s letter dated June 2, 2020; which is annexure “LR1” to that replying affidavit dated November 1, 2021.

8. It is important for the tribunal to highlight that the respondent’s letter of reinstatement predated the filing of the present contempt application. In its further affidavit dated November 30, 2021, which came in rebuttal of the respondent’s replying affidavit dated November 1, 2021, the appellant/applicant has failed to prove the third limb of breach of our judgment and orders in the face of the respondent’s defence as espoused in the respondent’s replying affidavit. The appellant/applicant has not denied receipt of the respondent’s letter dated June 2, 2020 and indeed the appellant/applicant’s counsel’s stamp with the date of June 5, 2021 is prominent affixed on to the copy produced as annexure “LR1” . We reproduce the body of that brief letter in full below:“Re: Special use licence dated april 15, 2013 over portion of Ngong Hills forest.Reference is made to the above matter.The service hereby acknowledges reinstatement of the special use licence issued to yourselves dated April 15, 2023, as ordered by the National Environment Tribunal on December 5, 2019. Note that all the rights and obligations captured in the Licence are in full effect and the service expects full compliance with the same."

9. This is particularly important in light of section 112 of the Evidence Act, which states that:“112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him. “

10. The burden of proving that the respondent has failed to reinstate the special use licence rested with the appellant/applicant. In the face of the respondent’s replying affidavit and the annexures thereto, the appellant/applicant acquired a burden to prove that notwithstanding the respondent’s letter dated June 2, 2020 in actual fact the respondent had deliberately breached our order; with the respondent’s letter dated June 2, 2020 being a mere facade and a sham.

11. Annexure “LR2” to the respondent’s replying affidavit is a letter dated June 2, 2021 written by a third party and addressed to the respondent. It would appear that the third party was issued with a special use license dated August 30, 2017 whereas the appeal herein was instituted vide a notice of appeal dated September 28, 2017 and filed on October 2, 2017. That special use licence issued to the third party, who was for the avoidance of doubt not a party to these proceedings or referenced in them, may be concerned in whole or in part with the same area as the special use licence of the appellant/applicant was issued prior to the date of the filing of this appeal. We also note that annexure “LR2” states that the special use licence of that third party was purportedly cancelled by the respondent’s letter dated April 14, 2021 to that third party.

12. The appellant/applicant had the opportunity to address those two annexures in its further affidavit dated November 30, 2021. The appellant/applicant did not in prove that the circumstances outlined in the respondent’s annexure “LR2” were tantamount to a breach of our judgment and orders. Furthermore, neither the appellant/applicant’s supporting affidavit nor the appellant/applicant’s further affidavit has proved to the required standard the ingredients of the alleged contempt that the appellant/applicant has set out at paragraph 9 of its further affidavit dated November 30, 2021. Specifically, the appellant/applicant has failed to prove to the required standard that:a.the respondent has failed to reinstate the special use licence held by the appellant/applicant,b.that for compliance with our judgment it was incumbent on the respondent to advise the Ministry of Energy on the reinstatement of the Special use licence and the respondent has failed to do so,c.that for compliance with our judgment it was incumbent on the respondent to grant a ‘no objection status’ as to the development of the Eind Power Generation Project and the respondent has failed to do so,d.that for compliance with our Judgment it was incumbent on the respondent and the respondent had a duty to deliver to the appellant/applicant the site and allow the appellant/applicant unrestricted access to the same and the respondent has failed to do so; ande.the respondent has directly or indirectly frustrated the appellant/applicant’s special use licence and in doing so the respondent has in effect rescinded and/or invalidated the special use licence contrary to our judgment and orders.

13. The tribunal deliberately steers clear of making any definitive pronouncement as regards the third party that is stated in both the respondent’s replying affidavit dated November 1, 2021 as well as the appellant/applicant’s further affidavit dated November 30, 2021; and that third party’s alleged actions with respect to the whole of or part of the area that is the subject of the special use licence. It is sufficient for us to say that the appellant/applicant did not prove that the third party was acting as an agent of the respondent and that the role of that third party with respect to the whole of or part of the area that is the subject of the special use licence was attributable to the respondent’s deliberate actions to breach the orders contained in our judgment.

14. Our position is informed by the possibility of current or future proceedings where the same would be at the heart of the matter and also the fact that such a pronouncement is not necessary for the purposes of determining the appellant/applicant’s notice of motion application dated February 8, 2021.

15. As we pen off, we reiterate that a judgment of this Tribunal is not a whimsical suggestion whispered in vain by a subordinate court bereft of the mandate and powers to enforce compliance with its judgments and, in default of such compliance, to punish a party that deliberately breaches our judgement and its attendant orders. However, this tribunal does not arrive at a finding of contempt of court with respect to an alleged deliberate breach of our judgment and orders without the applicant having first satisfied the required legal ingredients and meeting the requisite evidentiary levels. In the present case, the appellant/applicant has not done so.

Order 16. For the reasons stated above the appellant/applicant’s notice of motion application dated February 8, 2021 is dismissed with no orders as to costs.

DATED & DELIVERED AT NAIROBI THIS 28TH DAY OF SEPTEMBER 2022Mohammed S. Balala………………ChairpersonChristine Mwikali Kipsang’…………Vice-ChairpersonBahati Mwamuye……………………......MemberWaithaka Ngaruiya…………..…………MemberKariuki Muigua…………………………Member