Borbor & 2 others v National Environment Management Authority (Environment and Land Judicial Review Case 2 of 2022) [2022] KEELC 3947 (KLR) (28 July 2022) (Ruling)
Neutral citation:
[2022] KEELC 3947 (KLR)
Republic of Kenya
Environment and Land Judicial Review Case 2 of 2022
OA Angote, J
July 28, 2022
In The Matter Of An Application By Wario Agal Borbor & 14 Others For Leave To Apply For An Order Of Certiorari And Prohibition And In The Matter Of A Court Order To Cease Operation And In The Matter Of The Environmental Management & Co-ordination Act (cap 387) Laws Of Kenya
Between
Wario Agal Borbor
1st Exparte
Kose Isatu Hirbo
2nd Exparte
Bafkado Nagasa
3rd Exparte
and
National Environment Management Authority
Respondent
Ruling
1.The Ex Parte Applicants (the Applicants) filed a Chamber Summons Application dated February 10, 2022 seeking for the following reliefs:a.That the Ex-parte Applicants be granted leave to apply for an order of Certiorari to remove to this Honourable Court and quash the verbal and televised purported notice of eviction/removal of the fifteen (15) slaughter houses from Kiamaiko since the Respondent acted in an arbitrary and oppressive manner.b.That the Ex-parte Applicants be granted leave to apply for an order of Prohibition restraining the Respondent from evicting and/or forcefully removing the Applicants from Kiamaiko abbatoirs on or before the March 1, 2022 as was verbally pronounced on three national televisions on January 30, 2022 at 7:00am and 9:00pm news anchor.c.That this Honourable Court do find that the Respondent’s unilateral directive without public participation is unlawful, unreasonable, illogical and actuated by malice since the Respondent failed to serve the Applicants with a written notice or order, if any.d.That this Honourable Court do find that the Respondents’ purported exercise of power under Section 90 of EMCA has been done ultra vires the statute since the Respondent did not serve the Applicants with a restoration order at all or any notice in writing.e.That leave granted herein do operate as a stay of any malicious, forceful and intended unlawful eviction or removal of the Applicants from any of the slaughter houses located at Kiamaiko which is likely to be carried out on or before March 1, 2022 pending the hearing and determination of this Application.f.That the costs of this Application be provided for.
2.The Application is supported by the Applicants’ Statutory Statement and the Verifying Affidavit of Wario Agal Borbor, the 1st Applicant, sworn on his own behalf and on behalf of the other Applicants. In his Verifying Affidavit, the 1st Applicant deponed that on January 23, 2022, the Respondent through its officials, made a verbal pronouncement on the national news televisions giving the Applicants a verbal media notice to vacate from Kamaiko where they are operating their abattoirs to a new location on or before March 1, 2022.
3.The 1st Respondent deponed that no tangible reason was given as to why the Applicants should vacate the abattoirs that they have been operating for many years; that the verbal pronouncements came as a shock because on December 20, 2021, the Respondent had carried out audits on the individual abattoirs and acknowledged that all conditions were complied with and that further, the Nairobi City County which holds a complementary role under the Act and particularly in matters environment issued a single business permit to the Applicants commencing from 1st January to December 31, 2022.
4.According to the deponent, no reasons have been given for the haphazard eviction of the Applicants to a new place by the end of February, 2022; that the purported forceful evictions are contrary to the spirit of the Environment Management and Co-ordination Act which requires full participation, consultations and co-operation and that the Respondent’s actions contravenes Section 12 (1) (2), 109 and 110 of the EMCA Act.
5.The Applicants finally averred that the Respondent has acted in an excessive and arbitrary nature contrary to the rules of natural justice; that their reckless directives endangers the Applicants’ means of livelihood which has yet to recover from the Covid-19 pandemic; that the Respondent has further failed to serve an appropriate restoration order upon the Applicants in accordance with the EMCA and as such the Respondents decision is ultra-vires and that the Applicants ought to be granted the orders sought.
6.In response to the application, the Respondent through its Director deponed that the Respondent is the principle instrument of government established under Section 7 of the EMCA to exercise general supervision and co-ordination over all matters relating to the environment and that the subject Kiamaiko slaughterhouses are located in Huruma Area, Mathare Constituency adjacent to Nairobi River and densely populated with a mix of business and residential complexes.
7.It was deponed that the slaughter houses have been in operation since 1996; that the activities have progressed to the level of commercial slaughter houses and slabs by 2010 and that as the slaughter houses predate EMCA, the slaughter houses have submitted self-audit reports to the Authority over the years in accordance with the 1999 EMCA (Waste Management Regulations)2006.
8.It was deponed that the Respondent has always been concerned that the Kiamaiko area in general is in danger of severe environmental, health and sanitation degradation and further to the self- audit reports, the Respondent has been monitoring their operations to ensure compliance with the set environmental standards and practices.
9.It was further deponed that the Respondent received a court decree in respect of ELC Petition 43 of 2010-Isiah Ludando Oyaro & Others vs NEMA & Others [2021] eKLR where the health of Nairobi-Athi-Galani-Sabaki River system was in issue and orders were made for the removal of encroaching and polluting facilities and that the Applicants’ abattoirs fall within this category.
10.According to the Respondent’s Director, on December 1, 2021, its environmental inspectors set out to investigate the Kiamaiko Slaughter Houses, which investigations concluded that the slaughter houses had made no headway towards compliance with Water Quality Regulations, 2006; that the slaughterhouses are a direct source of pollution of the aqua environment, particularly the Nairobi River and that there is little or no commitment by the Applicants to complete construction and operations at the new proposed slaughterhouse in Njiru.
11.The Respondent’s case is that placing reliance on the precautionary principle, it was recommended that the Kiamaiko Slaughterhouses be closed and the proprietors be compelled to move to the new site; that on February 22, 2022, the Respondent issued to the Applicants a site restoration order pursuant to Section 108 of the EMCA, 1999 which order outlined the findings of the Inspection Report and that it is apparent that the Applicants moved this court while the said restoration order was under drafting.
12.Both the Applicants’ and the Respondent’s counsel filed submissions and authorities which I have considered.
Analysis & Determination
13.Having considered the pleadings and submissions made by the parties, the issues that arise for determination are;i.Whether this court has jurisdiction to entertain this suit?ii.Whether the Applicant should be granted leave to institute judicial review proceedings and if so, whether the leave should operate as stay?
14.Vide its Replying Affidavit, the Respondent objects to this court’s jurisdiction to entertain this matter. The Respondent’s objection is two pronged. First, that the matter is sub judice as there is a similar pending Petition before the National Assembly Department Committee on Environment and Natural Resources and secondly, that the application violates the doctrine of exhaustion as the Applicants have failed to pursue the remedy of Appeal open to them.
15.The centrality of jurisdiction in judicial proceedings is a well settled principle in law. A court without jurisdiction acts in vain. All it engages in is nullity. Nyarangi, JA, in Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd[1989] KLR 1 stated thus;
16.More recently, the Court of Appeal in Kakuta Maimai Hamisi vsPeris Pesi Tobiko & 2 Others [2013] eKLR stated thus;
17.It is clear from the foregoing that the court is at the first instance mandated to determine the Respondent’s objection to its jurisdiction and whether this suit is sub judice.
18.The term “sub-judice” is provided for under Section 6 of the Civil Procedure Act as follows:
19.The concept of sub judice acts to bar a court from trying a matter that is in one way or another before another court of competent jurisdiction by way of a previously instituted suit as long as it is between the same parties canvassing under the same title. Its rationale was well expressed by the Supreme Court in Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties [2020] eKLR who stated thus;
20.As to whether the doctrine of sub judice is applicable in the circumstances of this, the court thinks not. Section 6 is clear that the doctrine applies with respect to matters pending in court. The National Assembly is not a court and as such any proceedings before it cannot be a proceeding for the purposes of section 6 of the Act.
21.The doctrine of exhaustion requires a party to exhaust any dispute resolution mechanism provided by a statute and/or law before resorting to the courts. The Court of Appeal first embodied the doctrine of exhaustion in Speaker of National Assembly vs Karume 1992 KLR where the court held that;
22.As correctly cited by the Respondent, the Court of Appeal in the case of Geoffrey Muthinja & Another vs Samuel Muguna Henry & 1756 Others[2015]eKLR observed as follows:
23.The question of what invokes the doctrine of exhaustion before embarking on the court process was aptly discussed in the case of William Odhiambo Ramogi & 3 others vs Attorney General & 4 Others: Muslims for Human Rights & 2 others(Interested parties) [2020]eKLR by a five judge bench as follows:
24.The Court went on to outline the exceptions to the rule as follows:
25.Turning to the facts of this case, the Applicants are seeking leave to apply for judicial review orders of certiorari to quash the alleged verbal and televised notice of eviction and/or removal of 15 slaughterhouses from Kiamaiko and an order of prohibition restraining the Respondent from evicting the Applicants from Kiamaiko Abattoirs.
26.The Applicants assert that the Respondent’s pronouncements aforesaid are tainted with illegality, irrationality and procedural impropriety as there was no prior written notice nor were the Applicants served with an Environmental Restoration Order nor given an opportunity to make presentations before the Respondent’s verbal pronouncements were made.
27.The Respondent asserts that the Applicants have not exhausted the Appeal process as set out under Section 129 (1) & (2) of EMCA and neither have they written to the Respondent pursuant to Section 110 of EMCA asking them to give reasons as to why it should reconsider the Environmental Restoration Order.
28.In response, the Applicants states that they had not been served with the Environmental Restoration Order and as such, Section 129 is in-operative. The Respondent’s answer to this is that they were in the process of drafting the Environmental Restoration Order and that the Application was filed pre-maturely.
29.It is uncontested that at the time of filing the present application, the Environmental Restoration Order had not been served on the Applicants. Indeed, Section 108 (1) of EMCA mandates the Respondent to issue and serve an Environmental Restoration Order on any person requiring them to among others restore the environment as near as it may be to the state in which it was before the taking of the action which is the subject of the order and to prevent the person on whom it is served from taking any action which would or is reasonably likely to cause harm to the environment.
30.Whereas the EMCA does not provide any timelines for the issuance of the Environmental Restoration Order, taking into account the nature of the document, it has not been sufficiently explained why the same was only served on the Applicants after the Respondent was served with the present application.
31.Further, the Applicants cannot be said to have acted prematurely as they moved the court under a certificate of urgency on the basis of the alleged verbal notices issued on January 23, 2022 asking them to vacate the premises on or before the March 1, 2022 before any written notice and/or restoration order was served upon them. This was well within their rights and in the circumstances, it is apparent that Section 110(1) and 129(1)(e) of EMCA are inoperative.
32.The question that lends itself from the foregoing is whether the entirety of Section 129 of EMCA which deals with Appeals to the Tribunal has been rendered in-operative by the failure to issue the restoration order.
33.Section 129 of the EMCA provides as follows:-(1)Any person who is aggrieved by:-(a)a refusal to grant a licence or to the transfer of his licence under this Act or regulations made thereunder;(b)the imposition of any condition, limitation or restriction on his licence under this act or regulations made thereunder;(c)the revocation, suspension or variation of his licence under this Act or regulations made thereunder;(d)the amount of money which he is required to pay as a fee under this Act or regulations made thereunder;(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.
34.Whereas Section 129(2) of the EMCA provides as follows:
35.In the present case the Applicants are questioning the validity of the Respondent’s verbal notice issued to them asking them to vacate the premises. Notwithstanding the fact that the notices were verbal, it is apparent and indeed admitted that they constitute a decision of the Respondent.
36.To that end, the Applicant being aggrieved by that decision was obligated to file an Appeal to the National Environment Tribunal pursuant to Section 129 (2) of the EMCA. The court is in this respect guided by the decision of the Court of Appeal in National Environmental Tribunal vs Overlook Management Limited & 5 Others [2019] eKLR which held as follows:
37.While conceding that the Court of Appeal in Republic vs NEMA [2011] eKLR emphasized that the existence of an alternative remedy is not a bar to the commencement of judicial review proceedings by an aggrieved party, the court went on to further state as follows:
38.This sentiment was reiterated by the Court of Appeal in Kenya Revenue Authority & 2 others vs Darasa Investments Ltd [2018] eKLR which held as follows:
39.The court’s reasoning in Kenya Revenue Authority(supra) captures the provisions of Section 9 (2) of the Fair Administrative Action Act which goes a step further to imply that in fact where there exist internal mechanisms for resolution of the dispute which, inevitably, would yield an alternative remedy, it is no longer a matter of the court’s discretion to entertain, let alone grant, an application for judicial review. In that event, the court will not review the administrative action until the internal mechanism has been exhausted.
40.In the present circumstances, there was no evidence to show that the dispute resolution mechanism will be impractical, nor has it been demonstrated that the dispute is purely legal and must be determined by the court as opposed to the mechanism under the Act.
41.In any event, the Applicants have failed to explain exceptional circumstances that would entitle them to sidestep the internal dispute resolution mechanisms and invoke the jurisdiction of a judicial review court. The first pot of call by the Applicants in challenging the decision of the Respondent should have been to the Tribunal and not this court. In the circumstances, the Respondent’s objection succeeds.
42.The application by the Applicants for leave to commence judicial review proceedings against the Respondent is declined. That being the case, the suit is struck out with costs.
DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 28TH DAY OF JULY, 2022.O. A. AngoteJudgeIn the presence of;Mr. Sausi for Ex parte ApplicantsMr. Gitonga for RespondentCourt Assistant - June