Case Metadata |
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Case Number: | Constitutional Petition 305 of 2012 |
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Parties: | Peter Makau Musyoka, Elijah Mutua Makanga, Jacob Mbya Musyoka, Francis Kithome Kitheka, Andrew Kasee Mwinzi, Nicholas Munywoki Mwasa, Eric Mutua, Titus Kivaa P.M, Paul Mumo Kisau, Gideon Wathe Nzau, Florence Mutwali Kitonga, Particia Kisio Kimanzi, Joseph Muthui Nzuni, Margaret Munyoki, Solomon Kimanzi Kivoto, Eunice Keli Wambua, David Kilonzo Maweu, John Kimakio Mutia, Nzomo Mulatia & Mui Coal Project Blocks C and D Liaison Committee (Suing on their own behalf and on behalf of the Mui Coal Basin Local Community) v Permanent Secretary Ministry of Energy, Attorney General, Principal Secretary Ministry of Energy and Petroleum, Principal Secretary Ministry of Mining, Principal Secretary Ministry of Lands, Housing and Urban Development Interested Parties Fenxi Mining Industry Company Limited, Great Lakes Corporation Limited, Jingu Group China, Commissioner of Mines & Geology, National Environment Management Authority, Mui Mines and Mineral Limited, Law Society of Kenya & Institution for Law & Environmental Governance |
Date Delivered: | 17 Mar 2014 |
Case Class: | Civil |
Court: | High Court at Machakos |
Case Action: | Ruling |
Judge(s): | Beatrice Thuranira Jaden, Joel Mwaura Ngugi, Lilian Nabwire Mutende |
Citation: | Peter Makau Musyoka & 19 others (Suing on their own behalf and on behalf of the Mui Coal Basin Local Community) v Permanent Secretary Ministry of Energy & 14 others [2014] eKLR |
Advocates: | Mr. Apollo Muinde Mui Coal Basin Local Community, for the Petitioners in the 1st Petition Mr. Nyamu for the Petitioners in the 2nd Petition Mr. Moimbo for the Attorney General Mr. Imende for Fenxi Mining Industry Company, the 1st Interested Party Ms. Kariithi for Great Lakes Corporation Ltd, the 2nd Interested Party Mr. Saende for Jingu Group of China, the 3rd Interested Party Mr. Makundi for the Law Society of Kenya, the 6th Interested party Mr. Waikwa Wanyoike for Katiba Institute, amicus curiae Mr. Laban Osoro for Kituo Cha Sheria, amicus curiae |
Court Division: | Constitutional and Human Rights |
County: | Machakos |
Advocates: | Mr. Apollo Muinde Mui Coal Basin Local Community, for the Petitioners in the 1st Petition Mr. Nyamu for the Petitioners in the 2nd Petition Mr. Moimbo for the Attorney General Mr. Imende for Fenxi Mining Industry Company, the 1st Interested Party Ms. Kariithi for Great Lakes Corporation Ltd, the 2nd Interested Party Mr. Saende for Jingu Group of China, the 3rd Interested Party Mr. Makundi for the Law Society of Kenya, the 6th Interested party Mr. Waikwa Wanyoike for Katiba Institute, amicus curiae Mr. Laban Osoro for Kituo Cha Sheria, amicus curiae |
Case Summary: | When can a petitioner in a public interest litigation be permitted to withdraw a petition? Peter Makau Musyoka & 19 others (Mui Coal Basin Local Community) v Permanent Secretary Ministry of Energy & 14 others [2014] eKLR Constitutional Petition No. 305 of 2012 (Consolidated with Constitutional Petition No. 34 of 2013) High Court at Machakos LN Mutende, JM Ngugi & BT Jaden, JJ. March 17, 2014 Reported by Michael M. Murungi
Issues:
Constitutional law – public interest litigation – withdrawal of litigation – application to withdraw a constitutional petition – petition having been certified as raising important matters of public interest – the law governing the withdrawal of such petitions – matters the courts will consider in deciding an application for withdrawal – where a withdrawal is declined, how a court would proceed with the petition without compelling the petitioners to continue to participate in the cause - Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 27(1) Words and Phrases 'Juridical effects' – procedural law requiring the court hearing an application to withdraw a constitutional petition to consider the 'juridical effects' of its decision – meaning of the term 'juridical effects' - Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 27(1)
Summary of facts Two constitutional petitions were filed in the High Court relating to a mining concession for the prospecting and extraction of coal deposits in the Mui Basin in Kitui County. The first petition was brought by members of the Mui Coal Basin Local Community. It challenged the process of awarding the tender to explore and exploit the coal deposits in the Mui Basin and alleged certain violations of the Bill of Rights, including the right to information, the right to property and a likely contravention of the right to health and a clean and healthy environment. The second petition was brought by thirteen members of the Community and a Committee known as the Mui Basin Coal Project Blocks C and D Liason Committee. Among other things, this petition raised issues concerning the need for the involvement of Parliament, the County of Kitui and members of the community affected in the negotiations of the coal mining agreement. The two petitions were consolidated, certified as raising an important matter of public interest and placed for hearing before a bench of three judges. Subsequently, the petitioners in the second petition sought the leave of the court to set aside the order of the court consolidating the two petitions and to withdraw their petition. The petitioners argued that the main issues that their petition sought to address had been resolved and that it was pointless to pursue the petition. They further argued that the fears they had about the threat of environmental degradation could not be ventilated at that stage since the fears remained speculative before any actual work had begun in light of a promise made to them that a proper Environmental Impact Assessment would be undertaken and that the members of the Community wanted the project to take off so that they could take advantage of the economic benefits that it would bring.
The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 27(1): (1). A petitioner may - a. on notice to the Court and to the Respondent, apply to withdraw the petition; or b. with leave of the Court, discontinue the proceedings. (2) The Court shall, after hearing the parties to the proceedings, decide on the matter and determine the juridical effects of that decision. (3) Despite sub-rule (2), the Court may, for reasons to be recorded, proceed with the hearing of a case petition in spite of the wish of the petitioner to withdraw or discontinue proceedings.
Held:
a. The court will be guided by considerations of public interest; b. The court would ensure that the withdrawal does not result in an abuse of the process of law; c. Courts must guard against the possibilities of such litigants settling the matters out of the court to their advantage and then seeking a withdrawal of the case; d. There are many ways in which the process can be abused and courts must be aware of them before permitting withdrawal of the petition. Section 27(3) of the above rules was a crystallization of the reasoning in this case, and this court adopts that reasoning.
a. The public interest initially presented in the case will not suffer as a result of the withdrawal; b. There is no abuse of the process of the law; c. The case is not an exercise in futility, so that if the case has been overtaken by events or the points presented by it are moot, it would be absurd to insist that it proceeds.
Application to set aside the order of the court consolidating the two petitions declined; application to withdraw the second petition declined; the petitioners in first petition allowed to withdraw from further participation in their individual capacities and their names be deleted from the record; given the immense public interest involved, the matter be set for hearing as a matter of priority.
Cases India
Statutes: East Africa;
Advocates:
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Case Outcome: | Allowed in part |
Disclaimer: | The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information |
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CONSTITUTIONAL PETITION NO. 305 OF 2012
PETER MAKAU MUSYOKA ...................................1ST PETITIONER
ELIJAH MUTUA MAKANGA................................. 2ND PETITIONER
JACOB MBYA MUSYOKA....................................3RD PETITIONER
FRANCIS KITHOME KITHEKA.....................................4TH PETITIONER
ANDREW KASEE MWINZI...........................................5TH PETITIONER
NICHOLAS MUNYWOKI MWASA................................6TH PETITIONER
(SUING ON THEIR OWN BEHALF AND ON BEHALF OF THE MUI COAL BASIN LOCAL COMMUNITY)
VERSUS
THE PERMANENT SECRETARY,
MINISTRY OF ENERGY.....................................1ST RESPONDENT
THE HON ATTORNEY GENERAL.............................2ND RESPONDENT
AND
FENXI MINING INDUSTRY
COMPANY LIMITED........................................1ST INTERESTED PARTY
GREAT LAKES CORPORATION LIMITED............2ND INTERESTED PARTY
JINGU GROUP CHINA .......................................3RD INTERESTED PARTY
CONSOLIDATED WITH
CONSTITUTIONAL PETITION NO. 34 OF 2013
ERIC MUTUA............................................................1ST PETITIONER
DR. TITUS KIVAA P.M.............................................2ND PETITIONER
PROF. PAUL MUMO KISAU.....................................3RD PETITIONER
DR. GIDEON WATHE NZAU..................................4TH PETITIONER
FLORENCE MUTWALI KITONGA...................................5TH PETITIONER
PARTICIA KISIO KIMANZI......................................6TH PETITIONER
JOSEPH MUTHUI NZUNI..............................................7TH PETITIONER
MARGARET MUNYOKI...........................................8TH PETITIONER
SOLOMON KIMANZI KIVOTO...................................9TH PETITIONER
EUNICE KELI WAMBUA.......................................10TH PETITIONER
DAVID KILONZO MAWEU.....................................11TH PETITIONER
JOHN KIMAKIO MUTIA...........................................12TH PETITIONER
NZOMO MULATIA.............................................13TH PETITIONER
THE MUI COAL PROJECT BLOCKS C AND D
LIAISON COMMITTEE......................14TH PETITIONER
VERSUS
THE PRINCIPAL SECRETARY,
MINISTRY OF ENERGY AND PETROLEUM.............1ST RESPONDENT
THE PRINCIPAL SECRETARY,
MINISTRY OF MINING......................................2ND RESPONDENT
THE PRINCIPAL SECRETARY MINISTRY OF LANDS,
HOUSING AND URBAN DEVELOPMENT...................3RD RESPONDENT
THE HON ATTORNEY GERENERAL......................4TH RESPONDENT
AND
FENXI MINING INDUSTRY COMPANY LIMITED.........1ST INTERESTED PARTY
GREAT LAKES CORPORATION LIMITED....................2ND INTERESTED PARTY
COMMISSIONER OF MINES & GEOLOGY....................3RD INTERESTED PARTY
THE NATIONAL ENVIRONMENT
MANAGEMENT AUTHORITY............................................4TH INTERESTED PARTY
MUI MINES AND MINERAL LIMITED...............................5TH INTERESTED PARTY
THE LAW SOCIETY OF KENYA.........................................6TH INTERESTED PARTY
INSTITUTION FOR LAW &
ENVIRONMENTAL GOVERNANCE....................................7TH INTERESTED PARTY
KITUO CHA SHERIA...........................................................8TH INTERESTED PARTY
KITUI COUNTY GOVERNMENT.........................................9TH INTERESTED PARTY
RULING
INTRODUCTION
APPLICATION TO SET ASIDE ORDERS TO CONSOLIDATE THE PETITIONS AND TO WITHDRAW PETITION 305 OF 2012
THE LEGAL TEST FOR WITHDRAWAL IN PUBLIC INTEREST LITIGATION
27. (1) A petition may –
(2) The Court shall, after hearing the parties to the proceedings, decide on the matter and determine the juridical effects of that decision.
(3) Despite sub-rule (2), the Court may, for reasons to be recorded, proceed with the hearing of a case petition in spite of the wish of the petitioner to withdraw or discontinue proceedings.
Here we must mention that in PIL cases, the petitioner is not entitled to withdraw his petition at his sweet-will unless the court sees reason to permit withdrawal. In granting the permission the Court would be guided by considerations of public interest and would also ensure that it does not result in abuse of the process of law. Courts must guard against possibilities of such litigants settling the matters out of the court to their advantage and then seeking withdrawal of the case. There are umpteen ways in which the process can be abused and the courts must be aware of the same before permitting withdrawal of the petition.
APPLYING THE LEGAL TEST TO THE CASE AT HAND
ORDERS OF THE COURT
DATED, SIGNED and DELIVERED at MACHAKOS this 17TH day of MARCH, 2014.
________________ _______________ _______________
L.N. MUTENDE J. M. NGUGI B.T. JADEN
JUDGE JUDGE JUDGE