Weekly Newsletter 006/2021



Kenya Law

Weekly Newsletter


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Kenya Law
Case Updates Issue 006/2021
Case Summaries

ELECTORAL LAW Effect of failure to hold a gubernatorial by-election within the required the 60 days where a county did not have a deputy governor

Law Society of Kenya v Anne Kananu Mwenda & 5 others;I.E.B.C. (Interested Party) [2021] eKLR
Petition No. E019 of 2021(Consolidated with Petition Nos. E433 of 2020, E005 of 2021, E009 of 2021, E011 of 2021, E012 of 2021, E13 of 2021, E015  of 2021 and E021 of 2021)
High Court at Nairobi
AC Mrima, J
February 9, 2021
Reported by Kakai Toili

Download the Decision

Electoral Law – gubernatorial by-elections – gubernatorial elections as a result of the impeachment of a governor – conduct of the gubernatorial elections where the county government did not have a deputy governor – timelines for holding the gubernatorial by-elections - what was the effect of failure to hold the gubernatorial by-election within the required 60 days Constitution of Kenya, 2010, article 182.
Jurisdiction – jurisdiction of the High Court – jurisdiction of the High Court to stop the running and computation of constitutional timelines - whether the High Court had the power to stop the running and computation of constitutional timelines - what was the role of a court when faced with a lacuna in law.
Devolution – county governments – deputy governor – nomination of a deputy governor – claim challenging the legal process for the nomination of a deputy governor which was in situ by the time a governor left office – whether the County Asembly could continue to process the appointment of the proposed deput governor in the absence of a sitting governor where he/she had been impeached - Constitution of Kenya, 2010, article 182.
Constitutional Law – doctrine of legitimate expectation – nature and scope of legitimate expectation circumstances giving rise to legitimate expectation  - whether the nomination of a person to be appointed a deputy governor and the person availing him/herself for vetting created a legitimate expectation that if successful in the vetting the person would become a deputy governor.
Judicial Officer - judge – recusal of a judge of the High Court – grounds for recusal – complaint filed against a judge at the Judicial Service Commissionin handling a particular matter -whether the complaint automatically precluded the officer from dealing with the matter.
Words and Phrases - legitimate – definition of legitimate – Complying with the law; lawful. Genuine; valid - Black’s Law Dictionary 9th Edition, (Bryan A. Garner, Thomson Reuters Publishers) .
Words and Phrases – expectation - definition of expectation - act of looking forward; anticipation; a basis on which something is expected to happen; especially the prospect of receiving wealth, honors, or the like - Black’s Law Dictionary 9th Edition, (Bryan A. Garner, Thomson Reuters Publishers) page 658.

Brief facts:
The instant petition was filed challenging, inter alia, the 1st respondent’s ascension to the office of the Governor of Nairobi City County.The Nairobi City County Governor was impeached by the Senate and by that time the Governor did not have a deputy governor. Therefore, the Speaker of the Nairobi City County Assembly assumed the position of Acting Governor by operation of law. Prior to the impeachment, the then Governor had nominated the 1st respondent for the position of deputy governor and the process towards the vetting of the nominee had been initiated. The County Assembly then took steps towards the vetting of the nominee. It was at that point that the consolidated petitions challenging the nomination of the 1st respondent as the Deputy Governor and her ascension into the office of Governor were filed.
Upon hearing the two applications in the consolidated petitions the court disallowed them. As a result, the 1st respondent was vetted, approved and eventually sworn in as the Deputy Governor. The instant petition was filed challenging, inter alia, the 1st respondent’s ascension to the office of the Governor of Nairobi City County. The petitioner sought among others the suspension of the decision of the County Assembly approving the nomination of the 1st respondent as the deputy governor.

Issues:

  1. What was the effect of the failure to hold a gubernatorial by-election within the required the 60 days where a county did not have a deputy governor?
  2. Whether the High Court had the power to stop the running and computation of constitutional timelines.
  3. What happened to a legal process for the nomination of a deputy governor which was in situ by the time a governor left office or was impeached?
  4. What was the role of a court when faced with a lacuna in law>?
  5. What was the nature of the doctrine of legitimate expectation and under what circumstances could it arise?
  6. Whether the nomination of a person to be a deputy governor and the person availing him/herself for vetting created a legitimate expectation that if successful in the vetting the person would become a deputy governor.
  7. Whether a complaint against a judicial officer at the Judicial Service Commission in handling a particular matter automatically precluded the officer from dealing with the matter.

Read More..

 

Relevant provisions of the law
Constitution of Kenya, 2010
Article 182
(1)     The office of the county governor shall become vacant if the holder of the office—

(a)    dies;
(b)    resigns, in writing, addressed to the speaker of the county assembly;
(c)    ceases to be eligible to be elected county governor under Article 180(2);
(d)    is convicted of an offence punishable by imprisonment for at least twelve months; or
(e) is removed from office under this Constitution.

(2)     If a vacancy occurs in the office of county governor, the deputy county governor shall assume office as county governor for the remainder of the term of the county governor.
(3)     If a person assumes office as county governor under clause (2), the person shall be deemed for the purposes of Article 180(7)—

(a)    to have served a full term as county governor if, at the date on which the person assumed office, more than two and a half years remain before the date of the next regularly scheduled election under Article 180(1); or
(b)    not to have served a term of office as county governor, in any other case.

(4)     If a vacancy occurs in the office of county governor and that of deputy county governor, or if the deputy county governor is unable to act, the speaker of the county assembly shall act as county governor.
(5)     If a vacancy occurs in the circumstances contemplated by clause (4), an election to the office of county governor shall be held within sixty days after the speaker assumes the office of county governor.
(6)     A person who assumes the office of county governor under this Article shall, unless otherwise removed from office under this Constitution, hold office until the newly elected county governor assumes office following the next election held under Article 180(1).

Held:

  1. Although the parties agreed to stop the by-election from being held, they did not in any way stop the time set under article 182(5) of the Constitution of Kenya, 2010 from running. A court had no powers to stop the running of constitutional timelines. As the parties had stopped the carrying out of the by-election by IEBC on one hand, and on the other hand, the constitutional time set under article 182(5) was running, it therefore meant that all the matters before court in the impeachment petition were to be concluded within the period of 60 days. It further meant that in the event the impeachment petition would be disallowed then the by-election was, as well, to be conducted within the same 60 days’ window.
  2. The impeachment petition was pending and was coming up for a ruling on, inter alia, empanelment of a multi-judge bench on February 25, 2021. It was practically inconceivable to have both the impeachment petition determined and if the petition was dismissed then a by-election to be conducted within the remainder of the 60 days if at all any would be left by then.
  3. The effect of not holding the by-election within the 60 days’ window in the unique circumstances of the instant matter meant that the tenure of the Speaker acting as a Governor under article 182(5) of the Constitution was constitutionally hinged to only 60 days. In other words, the Speaker could not continue acting as the Governor past the 60th day. In the event the Speaker left office after the 60 days and without an acting governor, a governor or a deputy governor in office, then what would follow would be a constitutional crisis. That was because after 60 days from the day the Speaker took over as the acting Governor and there being no by-election held (since the parties were not for the by-election), Nairobi County would not have had any person acting as a governor, it would have no substantive governor and no deputy governor, as well.
  4. In the absence of an acting governor, a governor or a deputy governor in office, many questions calling for answers arose. They included;
    1. how the County Government of Nairobi and by extension the County Assembly would run;
    2. how the thousands of workers, who had families and some who would be servicing loans, would be paid;
    3. how the health department would, in particular, endeavour to fight the dreaded corona virus in the county; and
    4. the length of time Nairobi County would be held in such a limbo;
    5. how such a constitutional crisis would be undone given that constitutional timelines could not be extended among other questions.
  5. A court had to, as a primary duty and in public interest, uphold the Constitution. A court should not in any manner whatsoever create a constitutional crisis. It remained the cardinal duty of a court to foresee such a crisis and take steps to avoid it. As the parties were not for the holding of the by-election and given that the 60 days’ period was running out, the court had only one option in upholding public interest and to avoid a constitutional crisis: to allow the vetting process to proceed, at least to see whether the County could have a deputy governor, if the nominee was approved. The court, therefore, in allowing the vetting process to continue acted in the best interest of the Nairobi City County and of Kenya at large and in public interest.
  6. Article 182 of the Constitution dealt with vacancy in the office of county governor and mainly focused on the absence of a governor and the deputy governor and that a by-election followed thereafter. The law was silent on what happened to a legal process for the nomination of a deputy governor which was in situ by the time the Governor left office. The Constitution did not contemplate such a situation and as a result there was no provision on the way forward. That was a constitutional lacuna.
  7. In instances of constitutional lacuna or rather any lacuna in law, courts acted in public interest and asserted the court’s inherent jurisdictionin dealing with the lacuna. A court should not stare at a lacuna in the law. It had to do something about it for the maintenance of the rule of law and in the wider interest of the public who could not just be held in abeyance.
  8. Whereas the law was silent on the what happened to a legal process for the nomination of a Deputy Governor which was in situ by the time the Governor left office, and acting in public interest, the court asserted its inherent jurisdiction in finding a way forward. The only way to deal with the lacuna and in public interest was to allow the nomination process which had been legally initiated to proceed.
  9. The court remained alive to the fact that the process of vetting the Deputy Governor was undertaken by a constitutional entity; that was a county assembly. That was the only entity in law mandated to do so. The County Assembly of Nairobi City County was governed by the Constitution, the law and its Standing Orders. Once a matter was received by the County Assembly, it could only be dealt within the constitutional and legal confines. Unless the contrary was proved, such a matter became a property, so to say, of the County Assembly.
  10. In the course of dealing with the anti-corruption petition, the court confirmed that IEBC had already cleared the nominee for vetting. The court also confirmed that the County Assembly was indeed ready to undertake the vetting of the nominee. By the time the court issued the conservatory orders the County Assembly had undertaken all the preliminaries thereto. The remaining issue was the actual vetting of the nominee. By then the nomination had been received by the County Assembly and had become subject to the processes and procedures of the House. The Standing Orders of the House were clear on the procedure for withdrawal of a matter before it.
  11. The alleged withdrawal of the nomination of the 1st respondent was problematic in two ways.
    1. As the nomination process was firmly in the legal hands of the County Assembly, then any attempted withdrawal of the nomination could only be done in compliance with its Standing Orders. There was no such evidence on record.
    2. The letter on the purported withdrawal of the nomination of the 1st respondent was under police investigations on allegation of fraud. Even if the letter was able to recall the nomination of the 1st respondent, relying on such a hotly disputed document would be a tall order. It could only be prudent that the investigations be carried out first.
  12. Legitimate expectation meant the act of looking forward or anticipating something that was lawful/genuine or valid. It was also a legal basis upon which someone expected that something was to happen. A legitimate expectation arose where there was demonstration that;
    1. a decision maker led a party affected by the decision to believe that he would receive or retain a benefit or advantage including a benefit that he/she/it would be accorded a hearing before the decision was taken;
    2. a promise was made to a party by a public body that it would act or not act in a certain manner and which promise was made within the confines of the law;
    3. the pubic authority whether by practice or promise committed itself to the legitimate expectation; the representation was clear and unambiguous;
    4. the claimant fell within the class of person(s) who were entitled to rely upon the representation(s) made by the public authority;
    5. the representation was reasonable and that the claimant relied upon it to its detriment;
    6. there was no overriding interest arising from the decision maker’s action and representation;
    7. the representation was fair in the circumstances of the particular case and that the same arose from actual or ostensible authority of the affected public authority to make the same;
    8. the promise related either to a past or future benefit;
    9.  its main purpose was to challenge the decision maker to demonstrate regularity, predictability and certainty in their dealings with persons likely to be affected by their action in the discharge of their public mandate.
  13.  The then Governor nominated the 1st respondent to the position of the Deputy Governor. The nomination was sanctioned by law. By then, the only impediment was the vetting of the nominee by the County Assembly. The vetting process was legally initiated. It was, however, stopped by the court in the anti-corruption petition which was later withdrawn. The result of the withdrawal was that the orders issued by the court against the vetting were, as well, discharged.
  14.  As to the absence of a governor to appoint the deputy governor under section 32D of the County Government Act, No. 17 of 2012, article 182(4) of the Constitution was clear. The Constitution did not, expressly or by implication, preclude the Speaker who was the acting Governor from discharging the functions under section 32D of the County Government Act.
  15. The action of nominating the 1st respondent to the position of a deputy governor and the 1st respondent having availed herself to be vetted as such with a view of assuming the office if approved created a legitimate expectation upon her that if she was successful in the vetting process before the County Assembly then she would be the next Deputy Governor of Nairobi City County. The expectation was both legitimate and had crystallized in law. There being no other legal impediment, it was only fair and in the interest of upholding the law and in public interest that the process of vetting of the 1st respondent proceeded.
  16. Parties had to be accorded opportunities to ventilate their cases in an environment where the parties trusted that justice should prevail. The court was however alive to the truism that the position was akin to walking on a tight legal rope. That was because whereas a court endeavoured to create a conducive environment for the parties, it had to also guard against forum shopping. A court ought not to waver as long as it correctly applied the law.
  17. One of the reactions after the delivery of the ruling in the consolidated petition was the filing of a complaint at the Judicial Service Commission on the grounds inter alia that the court was biased. The matter was pending.The filing of complaint per se did not preclude a court from dealing with the matter. It all depended on the circumstances of the case.
  18. There were instances where, depending on the nature of the matter and in order to enhance public confidence in the administration of justice, a court could consider recusing itself from that particular matter. That position only applied in the unique circumstances of the instant matter. It was not the court’s general position on all the matters it handled. It could only be prudent that that position applied to all the matters on the leadership of Nairobi County which were well over 20 in number.
  19. The matter comprised of several consolidated petitions. The firm of Messrs Kithi & Company Advocates appeared in one or so of the petitions. As the court had previously done, the court had always recused itself in any matter where the firm of Messrs. Kithi & Company Advocates appeared unless for reasons otherwise stated. Given the nature and the history of the petitions in the instant matter it could only be fair that the court opt out of the matter.

Orders:

  1. The court recused itself from the instant matter as well as all the matters on the Governorship of Nairobi County.
  2. The instant matter to be placed before the presiding judge of the division for further orders and directions on February 10, 2021 given the urgency in the matter.
  3. Any party desirous of lodging an appeal against the ruling was granted leave to appeal. Copies of the proceedings and the ruling were to issue accordingly.
JURISDICTION

Rules and guidelines governing sustainable harvesting of sand

John Muthui & 19 others v County Government of Kitui & 7 others [2020] eKLR
ELC Petition No. E06 of 2020
Environment and Land Court at Machakos
O A Angote, J
November 27, 2020
Reported by Chelimo Eunice

Download the Decision

Jurisdiction – jurisdiction of the Environment and Land Court - jurisdiction of the National Environmental Tribunal (NET) - jurisdiction of the Environment and Land Court vis-à-vis jurisdiction of the National Environmental Tribunal (NET) – whether the Environment and Land Court had the unlimited jurisdiction to resolve disputes relating to land and the environment – whether the Environment and Land Court had jurisdiction to resolve a dispute alleging infringement of constitutional right to a clean and healthy environment – Constitution of Kenya, 2010, articles 129, 162 and 165.
Civil Practice and Procedure – institution of court proceedings – locus standi – locus standi to institute court proceedings claiming infringement of a right or fundamental freedom in the Bill of Rights – claim alleging infringement of constitutional right to a clean and healthy environment – who had the locus standi to commence proceedings for the enforcement of the right to a clean and healthy environment – whether it was necessary for a litigant to demonstrate personal interest or to have suffered loss or injury in order to institute a suit relating to the protection of the environment – reliefs that courts could grant on claims of infringement of constitutional right to a clean and healthy environment - Constitution of Kenya, 2010, articles 22, 42 and 70; Environmental Management and Co-ordination Act, section 3.
Environmental Law – environmental disputes – principles guiding courts when resolving environmental disputes – sustainable development, intergenerational equity and precautionary principle – meaning of sustainable development – elements comprising the principle of sustainable development - principle of intergenerational equity – meaning of intergenerational equity – what informed the development of the principle of intergenerational equity – difference between intra-generational equity and inter-generation - precautionary principle – meaning of precautionary principle - what informed the development of the precautionary principle - Constitution of Kenya, 2010, article 69; Environment and Land Court Act, section 18; Environmental Management and Co-ordination Act, section 3(5); Rio Declaration on Environment and Development, principle 15.
Environmental Law – protection of environment - laws meant to protect the environment – rules and guidelines governing sustainable sand harvestingthe National Sand Harvesting Guidelines of 2007 – purpose of the National Sand Harvesting Guidelines – requirement for every county where sand harvesting activities took place to establish a Technical Sand Harvesting Committee – mandate of the Technical Sand Harvesting Committee – where relevant authorities failed provide evidence to show that the National Sand Harvesting Guidelines had been complied – whether in the circumstances, sand harvesting was being carried out in a sustainable manner - National Sand Harvesting Guidelines, 2007.
Civil Practice and Procedure – constitutional petitions – rules governing constitutional petitions – whether Civil Practice and Procedure Rules, 2010 applied to constitutional petitions - whether a petitioner was required to give notice to the affected parties before filing a representative constitutional petition -  Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, rule 4.
Constitutional Law – rights and fundabr mental freedoms – right to a clean and healthy environment – components of the right to a clean and healthy environment - Constitution of Kenya, 2010, articles 42, 69 and 70.

Brief facts:
The petitioners filed an application seekingconservatory orders to restrain the respondents from licensing or allowing exploitation of resources more particularly sand harvesting from a river known as Tiva River (the river) until hearing and determination of the petition. They brought the suit on their own behalf and on behalf of the residents of Kitui County and beyond, who in one way or the other depended on, used and derived benefits from the river. They argued that the 1st to 6th respondents had permitted, allowed, licensed and let the 7th and 8th respondents and other persons under the umbrella of the 8th respondent to harvest sand from the river without following the regulations laid down by the 4th respondent for such activities and that as a result, the environment in and around the river had been degraded causing the river to dry up and as a consequence, put the lives of the petitioners and those of their future generations into uncertainty.
In opposing, the 1st and 2nd respondents’ averred, among others, that that the petition and the application were brought prematurely before the court, that the petition ought to have been filed in the National Environmental Tribunal (the NET), that the petitioners had no capacity to institute the suit; that the harvesting and excavation of sand from the river was controlled, that there were in place strict laws governing and regulating sustainable use of the said resource and that the harvesting of sand by the 7th and 8th respondents was limited to internal use within the County Government of Kitui and local consumption only and that the Constitution allowed for sustainable exploitation of natural resource.

Issues:

  1. Whether the Environment and Land Court had unlimited jurisdiction to resolve disputes relating to land and the environment.
  2. Whether the Environment and Land Court had jurisdiction to resolve a dispute alleging infringement of the constitutional right to a clean and healthy environment.
  3. Who had the locus standi to commence proceedings for the enforcement of the right to a clean and healthy environment?
  4. Whether it was necessary for a litigant to demonstrate personal interest or to have suffered loss or injury in order to institute a suit relating to the protection of the environment.
  5. What reliefs could be granted by courts on claims of infringement of the constitutional right to a clean and healthy environment?
  6. What principles guided courts when resolving environmental disputes?
  7. What elements comprised the principle of sustainable development?
  8. What was the meaning and purpose of the principle of intergenerational equity?
  9. What was the meaning and purpose of precautionary principle?
  10. Whether a petitioner was required to give notice to the affected parties before filing a representative constitutional petition.
  11. What were the components of the right to a clean and healthy environment?
  12. Which rules and guidelines governed sustainable sand harvesting?
  13. Whether failure to comply with the National Sand Harvesting Guidelines implied that sand harvesting was being carried out in a sustainable manner. Read More...

Held:

  1. The requirement that a court or tribunal could only deal with a dispute in respect of which it had the requisite jurisdiction could not be overemphasized. The Environment and Land Court’s (ELC) jurisdiction emanated from the provisions of article 162(2) (b) of the Constitution and section 13 of the Environment and Land Court Act (ELC Act).  Parliament enacted the ELC Act in compliance with the provisions of article 162(3). Article 165(5) of the Constitution divested the High Court the jurisdiction in respect of matters falling within the jurisdiction of the courts contemplated under article 162(2) of the Constitution.
  2. The reading of the Constitution and the ELC Act showed that it was the ELC that had the unlimited jurisdiction to resolve disputes relating to land and the environment. However, the ELC’s jurisdiction was subject to the jurisdiction donated to the subordinate court and tribunals by statutes, whose decisions were appealable to the ELC. One such tribunal was the National Environmental Tribunal (NET). The jurisdiction of NET, which was a creature of the Environmental Management and Co-ordination Act (EMCA) was found at section 129 of EMCA.
  3. The petitioners were not appealing against the decision of the National Environment Management Authority (4th respondent) either in issuing a licence or otherwise in respect of the harvesting of sand from the river by the respondents. Also, in view of the prayers sought in the petition, which were confined to the alleged infringement of the petitioners’ rights, NET did not have the requisite jurisdiction to deal with the petition. ELC had the jurisdiction to deal with the issues raised in the petition and the application.
  4. Article 22(1) of the Constitution guaranteed the right of every person to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed, or was threatened. That meant that every person had a right of ensuring that their rights in relation to the environment were not violated or threatened by way of litigation. The Constitution gave any person alleging infringement of a right to a clean and healthy environment recognized and protected under article 42 of the Constitution, the right to apply to the court for redress, in addition to any other legal remedies that were available in respect to the same matter.
  5. Courts were empowered to make any order, or give any directions, it considered appropriate to prevent, stop or discontinue any act or omission that was harmful to the environment, to compel any public officer to take measures to prevent or discontinue any act or omission that was harmful to the environment or to provide compensation for any victim of a violation of the right to a clean and healthy environment. Article 70 of the Constitution granted any person the right to commence proceedings for the enforcement of the right to a clean and healthy environment.
  6. One needed not to have a personal interest or suffered any injury before filing a petition alleging the infringement of the right to a clean and healthy environment. Article 70 of the Constitution and section 3(4) of the EMCA permitted any person to institute a suit relating to the protection of the environment without the necessity of demonstrating personal loss or injury. Litigation aimed at protecting the environment could not be shackled by the narrow application of the locus standi rule, both under the Constitution and statute, and in principle.
  7. The principle behind the law permitting any person to institute a suit relating to the protection of the environment without the necessity of demonstrating personal loss or injury was because the protection of the environment was not only for the benefit of the present generation, but also for the future generation. The preamble to the Constitution recognized the importance of protecting the environment for the benefit of the future generation.
  8. Section 18 of ELC Act and section 3(5) of EMCA provided that the ELC ought to be guided by the principle of intergenerational equity while resolving environmental disputes. The quality of life for the future generation depended on the present generation’s decisions. The need for change in human development for them to lead happy lives had been debated for decades.
  9. The idea that members of the present generation held the earth in trust for the future generations informed the development of the principle of intergenerationalequity. Therefore, any person could move the court with a view of protecting the environment, not only for his benefit, but for the benefit of the future generations. It was for that reason that in principle, the locus standi to file suits challenging the violation of the right to a clean and healthy environment was given to all and sundry.
  10. The petitioners, whether they hailed from Kitui County or not, and whether the harvesting of the sand from the riveraffected them directly or not, had the locus to prosecute the petition which was premised on the ground that the respondents had infringed on their right to a clean and healthy environment.  That right was applicable not only to them, but also the future generations. The petitioners had the requisite locus standi.
  11. Constitutional petitions were governed by the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules). Rule 4 of the Mutunga Rules allowed a petitioner to file a suit on his behalf and on behalf of a class of persons or in the public interest for infringement of right or fundamental freedom provided for in the Constitution. Such a petitioner was not required to give a notice to the affected parties before filing the petition. The petitioners herein were acting on their own behalf, and in the public interest of the people of Kitui County.
  12. Article 42 of the Constitution provided that every person had the right and was entitled to a clean and healthy environment. That right included the right to have the environment protected for the benefit of the present and future generations through legislative and other measures particularly those contemplated in article 69 of the Constitution.The right extended to having the obligations relating to the environment under article 70 of the Constitution fulfilled. It was bestowed on every person and had been considered to be essential for the existence of mankind.
  13. Unlike the other rights in the Bill of Rights which were guaranteed for enjoyment by individuals during their lifetime, the right to a clean and healthy environment was an entitlement of present and future generations and it was to be enjoyed by every person with the obligation to conserve and protect the environment. Ithad three components, the right itself, the right to have unrestricted access to the courts to seek redress where a person alleged that the right had been infringed or was threatened and the right to have the court make any order or give any directions it considered appropriate to either prevent or discontinue the act harmful to the environment. The court could also compel any public officer to take measures to prevent or discontinue the act that was harmful to the environment or award compensation to any victim of a violation of the right to a clean and healthy environment.
  14. The Constitution under article 69 obligated all persons to protect and ensure a clean and healthy environment, which included but was not limited to elimination of processes and activities that were likely to endanger the environment as well as establish systems of environmental impact assessment and environmental audit and monitoring of the environment. Article 69 (1) (a) of the Constitution demanded the state, to which the 1st to 5th respondents belonged, to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources and equitable sharing of the accruing benefits. Article 69(1)(d) of the Constitution required the state to encourage public participation in the management, protection and conservation of the environment.
  15. Rivers all over the world were under immense pressure due to various kinds of anthropogenic activities, among them indiscriminate extraction of sand and gravel which was disastrous as the activity threatened the river ecosystem. Sand harvesting activities affected the environment by causing land degradation, loss of agricultural lands, low availability of water and poor quality of water in the affected rivers. Bed degradation of rivers due to sand harvesting undermined bridge support, and would change the morphology of a river, which constituted aquatic habitat. The loss of that ecosystem affected the environment in many and far reaching ways. To address the issue of sustainable harvesting of sand, the 4th respondent had come up with the National Sand Harvesting Guidelines of 2007 (the Guidelines).
  16. Under the Guidelines, the Technical Sand Harvesting Committee (TSHC) was supposed to be established by every county where sand harvesting activities took place. TSHC had been given the mandate to ensure that sand dams gabions were constructed in designated sand harvesting sites, lorries  were using designated access roads  only to sand  harvesting sites and designated sand harvesting sites were rehabilitated appropriately by Riparian Resource Management Association (RRMA), County Council (County Governments) and approved dealers under close monitoring and supervision by the TSHC in compliance with EMCA.
  17. The Guidelines restricted sand harvesting to riverbeds with no harvesting allowed on river banks in order to prevent the widening of rivers. No person was allowed to harvest sand from any area not designated as a sand harvesting site by the TSHC and the site had to have an environmental management plan to guide in the rehabilitation of the sites. In addition, harvesting of sand was not to exceed six (6) feet in depth, designated sand collection sites ought to be at least 50 meters from the riverbanks or dyke and harvesting of sand was to be done concurrently with the restoration of areas previously harvested.
  18. Sand harvesting was to be strictly open-cast harvesting.  In case of underground tunneling or extraction of sand, appropriate technology was to be used to safeguard human safety, and river sand harvesting had to be done in a way that ensured that adequate reserve of the sand was retained to ensure water retention. Sand harvesting was not allowed on river banks and within 100 meters of either side of physical infrastructure including bridges, roads, railway line and dyke. Any person who sold sand would be required to issue a receipt to the purchaser and keep records of such for periodic inspection by the relevant authorities.
  19. The respondents did not provide to the court any evidence to show that the Guidelines had been complied with in respect to the harvesting of sand from the river or at all. There was no evidence to show that the 1st respondent had put in place a TSHC which was responsible for the proper and sustainable management of sand harvesting within the county.
  20. In the absence of a TSHC as required under the Guidelines, and in the absence of any evidence to show compliance with all the Guidelines, or a law passed by the 3rd respondent to regulate sand harvesting, the court found that the harvesting of sand in the river was not, prima facie, being exploited and utilized in a sustainable manner, contrary to the provision of article 69 (1) (a) of the Constitution. Although the respondents argued that the harvesting of the sand from the river was for the development of the county, and that the local community had immensely benefited from the said harvest, they ought to be aware that environmental considerations had to be at the center stage of all developments.
  21. Sustainable development was one of the national values and principles of governance in the Constitution that bound all state organs, state officers, public officers and all persons. Sustainable was development that met the needs of the present without compromising the ability of future generations to meet their own needs. Essentially, sustainable development sought to address intra-generational equity, that was equity among the present generation and inter-generation equity, that was equity between generations. Sustainable development reaffirmed the need for both development and environmental protection, and neither could be neglected at the expense of the other.
  22. The four (4) recurring elements that comprised the principle of sustainable development were;
    1. the need to preserve natural resources for the benefit of future generations (the principle of intergenerational equity).
    2. exploiting natural resources in a manner which was sustainable, prudent, rational, wise or appropriate (the principle of sustainable use).
    3. the equitable use of natural resources.
    4. the need to ensure that environmental considerations were integrated into economic and other development plans, programmes and projects (the principle of integration).
  23. The principle of sustainable development sought to limit environmental damage arising from anthropogenic activities and lessen the depletion of natural resources and pollution of the environment. It was a principle with a normative value, demanding a balance between development and environmental protection, and as a principle of reconciliation in the context of conflicting human rights, that was the right to development and the right to protecting the environment.
  24. Sustainable use of natural resources was recognized under article 69 of the Constitution, where the state, including the 1st respondent, was obliged to ensure sustainable exploitation of sand in the river. The sustainable harvesting of sand from the river could only be accomplished if the guidelines were complied with fully, and legislation was passed by the 3rd respondent in compliance with article 42 of the Constitution.
  25. Although the 1st respondent had stated that it had published a Gazette Notice banning the transportation of sand outside the county, the said Gazette Notice did not create any offence that was punishable in court. It did not amount to a law or a regulation to regulate how sand was to be harvested by the local community.
  26. Criminal enforcement of environmental law was necessary to protect the integrity of the regulatory system, prevent harm to the environment and to punish the violators. It was for that reason that article 42 of the Constitution obligated the state, including the 1st respondent, to protect the right to a clean and healthy environment through legislative measures, which the 1st and 3rd respondents had not done.
  27. Although the respondents argued that they had been relying on an environmental impact assessment report (report) that was prepared by the 7th and 8th respondents, the report was never submitted to the 4th respondent for approval pursuant to the provisions of sections 58 of EMCA. According to the second schedule of EMCA, the report was supposed to be submitted to the 4th respondent for all activities involving sand harvesting, where after, a license was issued. The respondents had not complied with the law. Where the procedures for the protection of the environment were not followed, then an assumption would be drawn that the right to a clean and healthy environment was under threat.
  28. When determining environmental issues, the court was guided by certain principles, one of them being the precautionary principle. The principle was based on principle 15 of the Rio Declaration on Environment and Development, which Kenya was a signatory. The principle implied that where there were threats of serious or irreversible damage, lack of full scientific certainty ought not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Central to the precautionary principle was the element of anticipation, reflecting a need for effective environmental measures to be based upon actions which take a longer-term approach. The principle evolved to meet the evidentiary difficulty caused by the fact that information required to prove a proposition would be in the hands of the party causing or threatening the damage to the environment.
  29. Waiting for scientific proof regarding the impact of sand harvesting on the river could result in irreversible damage to the environment and in human suffering. The short term economic stagnation that would result due to the conservatory orders of the court did not outweigh the environmental imperatives of the river.
  30. The respondents had the responsibility of abiding by the guidelinesand EMCA, and enacting a law or regulations to ensure that there was sustainable exploitation of sand from the river.
  31. The respondents had failed, prima facie, to comply with the laws and guidelines pertaining to harvesting of sand from the river. The 3rd respondent had also failed to pass laws and regulations which would criminalize the exploitation of sand from the river in an unsustainable manner. That being so, the petitioners had established a prima facie case with chances of success.

Application allowed.
Orders

  1. Conservatory orders issued retraining the respondents either by themselves or through their agents, servants, employees, proxies or any other person from licensing, permitting, allowing or in any other way exploiting resources more particularly sand harvesting from Tiva River in areas or sites near Ndumoni, Tanganyika, Nyanyaa and Tiva in Kitui County until hearing and determination of the petition.
  2. The costs of the application ordered to be met by the 1st respondent.
CONSTITUTIONAL LAW

Directives issued by the National Security Advisory Committee aimed at combating the spread of Covid-19 suspended for interfering with the independence of the Inspector General of National Police Service

Law Society of Kenya v Attorney General & another [2020] eKLR
Petition No. E327 of 2020
High Court at Nairobi
A C Mrima, J
November 12, 2020
Reported by Chelimo Eunice

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Constitutional Law – constitutional bodies – national security organs – National Police Service – objects and functions of the National Police Service - Office of the Inspector General of National Police Service – role of Inspector General of National Police Service – independence of the Inspector General of National Police Service – where the National Security Advisory Committee issued directives on how to combat the spread of Covid-19 and directed the police to ensure compliance of the directives – whether such a directive amounted to interference of the independence of the Inspector General of National Police Service - whether the Inspector General of National Police Service could be directed by any entity or body on how to discharge its functions – Constitution of Kenya, 2010, articles 157(4), 244, 245(2)(b) and (4) and 254(4).
Civil Practice and Procedure – judicial remedies - interlocutory reliefs – conservatory orders – what was a conservatory order – difference between interlocutory orders and interlocutory injunctions – application seeking restraining orders and suspension of government directives limiting public gatherings as a way of combating the spread of Covid-19 -   principles guiding the grant of conservatory orders – whether the applicant met the threshold for grant of conservatory orders.
Words and Phrases – prejudice – definition of prejudice – damage or detriment to one’s legal rights or claims - Black’s Law Dictionary, 10th Edn.
Words and Phrases - public interest – definition of public interest - the general welfare of a populace considered as warranting recognition and protection. Something in which the public as a whole had stake especially in something that justified government regulation - Black’s Law Dictionary, 10th Edn.

Brief facts:
The petitioner filed a petition challenging the constitutionality of section 5 of the Public Order Act and the directives made by the National Security Advisory Committee (NSAC) on October 7, 2020 (impugned directives) and ratified by the Cabinet limiting public gatherings as a way of combating the spread of Covid-19. The NSAC further directed the police to ensure compliance of the impugned directives. The petitioner argued, among others, that section 5 of the Public Order Act and the impugned directives were unconstitutional since they fundamentally limited various rights and fundamental freedoms guaranteed by the Constitution.
Together with the petition, the petitioner filed an application seeking conservatory orders restraining the 2nd respondent from seeking to license or authorize the holding of public gatherings, meetings and processions on the strength of the impugned directives pending the hearing and determination of the application or the petition. The application also sought suspension of the impugned directives. The respondents opposed the application arguing that grant of the conservatory orders sought would amount to interference with the executive’s power to maintain peace and order for national security. 

Issues:

  1. What was the difference between interlocutory orders and interlocutory injunctions?
  2. What principles guided courts when granting conservatory orders?
  3. Whether the Inspector General of National Police Service could be directed by any entity or body on how to discharge its functions.
  4. Whether by issuing directives aimed at combating the spread of Covid-19 and directing the police to ensure compliance of the directives, the National Security Advisory Committee interfered with the independence of the Inspector General of National Police Service. Read More...

Held:

  1. Given the nature of applications for conservatory orders, courts were generally called upon to exercise caution. They ought to be careful neither to reach final conclusion nor make final findings. That was meant to avoid dealing with finality, and in the interim, with issues which were the preserve of the main petition. By the time the application was decided, all the parties still had to have the ability and flexibility to prosecute their cases or present their defences without prejudice. There ought not be conclusivity or finality arising that would operate adversely vis-a-vis the case of either parties.
  2. A conservatory order was a judicial remedy granted by the court by way of an undertaking that no action of any kind would be taken to preserve the subject until the motion of the suit was heard.  It was an order of status quo for the preservation of the subject matter.Conservatory orders were not ordinary civil law remedies but were remedies provided for under the Constitution. They were not remedies between one individual as against another but were meant to keep the subject matter of the dispute in situ. Such remedies were remedies in rem as opposed to remedies in personam. They were remedies in respect of a particular state of affairs as opposed to injunctive orders which would only attach to a particular person.
  3. A court dealing with an application for conservatory orders had to remain focused and maintain the delicate balance by ensuring that it did not delve into issues which were in the realm of the main petition.
  4. Conservatory orders bore a more decided public-law connotation since they were orders to facilitate ordered functioning within public agencies, as well as to upheld the adjudicatory authority of courts in the public interest. Conservatory orders, were not, unlike interlocutory injunctions, linked to such private-party issues as the prospects of irreparable harm occurring during the pendency of a case or high probability of success in the applicant’s case for orders of stay. They were to be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant courses.
  5. The main principles for consideration on whether to grant conservatory orders were:
    1. an applicant had to demonstrate that he had a prima facie case with a likelihood of success and that unless the court granted the conservatory order, there was a real danger that he would suffer prejudice as a result of the violation or threatened violation of the Constitution;
    2. whether, if a conservatory order was not granted, the petition alleging violation of, or threat of violation of rights would be rendered nugatory;
    3. public interest; and
    4. whether the conservatory order sought would delay the early determination of the dispute.
  6. A prima facie case in a civil application included but was not confined to a genuine and arguable case. It was a case which, on the material presented to the court, a tribunal properly directing itself would conclude that there existed a right which had apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later. If there was no prima facie case on the point essential to entitle the plaintiff to complain of the defendant’s proposed activities, that was the end of any claim to interlocutory relief. In determining whether a prima-facie case was demonstrated, a court had to look at the case as a whole. It had to weigh, albeit preliminarily, the pleadings, the factual basis, the respective parties’ positions, the remedies sought and the law.
  7. The 2nd respondent was a creature of chapter 14 part 4 of the Constitution. Article 244 of the Constitution listed the objects and functions of the National Police Service (NPS). The NPS was under the command of the 2nd respondent. The manner in which the 2nd respondent was to carry out its mandate was provided for under article 245(2)(b) and (4) of the Constitution. Further, article 157(4) of the Constitution gave power to the Director of Public Prosecutions (DPP) to direct the 2nd respondent to investigate any information or allegation of criminal conduct.
  8. The independence of the 2nd respondent was constitutionally insulated from any form of interference or directional command. Apart from the DPP and only to the extent so provided, no other person, body or entity had the power to give any form of directives to the 2nd respondent on how to discharge its functions. The power donated to the Cabinet Secretary under article 254(4) of the Constitution to issue any directives to the 2nd respondent was only limited to policy issues.
  9. The respondents neither deponed to nor alleged that the NSAC and/or the Cabinet were part of the 2nd respondent or the Office of the Director of Public Prosecutions. It was, therefore, clear that the NSAC and the Cabinet were, among the bodies, entities and persons, constitutionally estopped from directing the manner in which the 2nd respondent discharged its duties.
  10. There was an unequivocal admission on issuance of the impugned directives by NSAC which were adopted by the Cabinet. The impugned directives directed the 2nd respondent on how to discharge its mandate. The effect of the impugned directives was hence tantamount to the NSAC and the Cabinet usurping the powers and mandate of the 2nd respondent as donated by the Constitution.
  11.  In as much as the impugned directives would have been intended for the good of the citizenry, the court could not lose sight of the fact that the impugned directives were on a direct collision course with article 245(2)(b) and (4) of the Constitution. Pursuant to article 2(4) of the Constitution, and to the extent demonstrated, the impugned directives had to give way to the constitutional muster.   
  12. The petitioner demonstrated, on the preponderance of probability, that the Constitution was infringed by the impugned agencies as to call for an explanation or rebuttal from the later. The petitioner, therefore, established a prima-facie case.
  13. Generally, any infringement or threat of infringement of the Constitution was an affront to the people of Kenya. That was the clear purport of the preamble and chapter 1 of the Constitution. The petitioner had preliminarily demonstrated that the Constitution was under attack. The general public stood to suffer great prejudice if the Constitution was not allowed to reign. The petitioner had satisfactorily demonstrated that the impugned agencies would continue to muzzle and usurp the powers of the 2nd respondent in the discharge of its duties unless the application was allowed.
  14. Public interest litigation was a legal action initiated in a court of law for the enforcement of public interest or general interest in which the public or class of the community had pecuniary interest or some interest by which their legal rights or liabilities were affected. It was a weapon which had to be used with great care and circumspection and the judiciary had to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking was not lurking.  It was to be used as an effective weapon in the armory of law for delivering social justice to the citizens.
  15. The attractive brand name of public interest litigation ought not be used for suspicious products of mischief.  It was to be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. A court was to be careful to see that a body of persons or member of public, who approached it was acting bona fides and not for personal gain or private motive or political motivation or other oblique consideration. A court was to be careful not to allow its process to be abused for oblique considerations.
  16. There could be no greater public interest than upholding the Constitution and the law. There were several laws which enabled the 2nd respondent to fully, firmly and independently discharge its constitutional and statutory duties. Even without the impugned directives, still the 2nd respondent was sufficiently endowed with legal authority and power to fully discharge its constitutional and statutory mandate.
  17.  The dictates of public interest were in favour of the 2nd respondent discharging its mandate independently, as provided for under the Constitution and the law, that was, without the direction of any other person, entity or body save the DPP. Public interest favoured the maintenance of the status quo ante the impugned directives.
  18. There was no danger that the 2nd respondent would not be able to discharge its functions under the Constitution and the law if the application was allowed. As such, allowing the application would not in any way curtail the powers of the 2nd respondent. There was no possibility of multiplicity of suits or any delay in determining the petition if the application was allowed.
  19. The assertion by the 1st respondent that it was given only 16 working hours to respond to the application was incorrect. The matter was certified as urgent on October 13, 2020 as a result of the immense public interest involved. Service was ordered to be effected on the same day and parties were to appear for directions on the following day. All parties were duly served and appeared as ordered. The respondents confirmed having been served. Directions were then given on the hearing of the application wherethe respondents were given up to the close of business on October 16, 2020 to file their responses and submissions. Since the respondents were served on October 13, 2020, then they had 3 clear days within which to comply.
  20. The respondents, in addition, were represented by counsel. No application was made for extension of time for whatever reasons. The counsel expressed his readiness to proceed with the hearing when the matter came up for hearing. In any event, the respondents put up a well-spirited opposition to the application. It was imperative to note that in some cases parties would be expected to put on the overdrive gear as a balance between, and to accommodate, the individual rights of the parties and the larger public interest. The instant case was one such case.   

Application allowed.
Orders

  1. A conservatory order issued restraining the Inspector General of Police whether by himself or any police officer under its command from taking directives from the National Security Advisory Committee and/or any other person, body or entity in the manner in which the Inspector General of Police or its officers was to carry out their constitutional and statutory duties pending the hearing and determination of the petition. However, and for clarity, the Director of Public Prosecutions and the Cabinet Secretary responsible for police services remained at liberty to exercise their mandates under articles 157(4) and 245(4) of the Constitution respectively.
  2. A conservatory order issued suspending the directives issued by the National Security Advisory Committee on October 7, 2020 and ratified by the Cabinet on October 8, 2020 pending the hearing and determination of the petition since the effect of the said directives was to direct the manner in which the Inspector General of Police and any of its officers under its command could carry out their constitutional and statutory duties.

Directions towards an expedited hearing and determination of the petition:

  1. The petition ordered to be heard by way of reliance on affidavit evidence and written submissions.
  2. The respondents directed to file and serve their respective responses to the petition, if not yet, within 14 days of the ruling.
  3. Upon service, or in the event the respondents had filed and served their respective responses, the petitioner directed to file and serve supplementary response thereto, if need be, together with written submissions within 7 days.
  4. The respondents to thereafter file and serve written submissions within 7 days of service.
  5. The petitioner to, upon service, file and serve rejoinder submissions, if need be, within 3 days of service.
  6. Highlighting of submissions directed to take place on December 16, 2020.

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