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ELCDismissedJudicial Review (Notice of motion dated 10th March 2016)· [2016] KEELC 202 (KLR)

Republic v Senior Resident Magistrate’s Court Ndhiwa & National Environmental Management Authority Exparte Sajalendu Maiti [2016] KEELC 202 (KLR)

Environment and Land Court
16 November 2016
SKS. M. Kibunja
2,906 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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Sajalendu Maiti, the ex parte applicant, sought orders of certiorari and prohibition to quash and halt Ndhiwa SRM Criminal Case No. 309 of 2015, in which NEMA charged him with failing to comply with a restoration order issued on 29th April 2015 by the County Director of NEMA, Homa Bay, following complaints by a group called Homa Bay Integrity on Environment Degradation over waste handling by Sukari Industries Ltd. He argued that the order of 29th April 2015 had been superseded by later orders of 4th May and 30th June 2015, that the prosecution was actuated by malice, political influence and ulterior motives (including aiding civil compensation claims), and that NEMA breached Articles 10 and 47 of the Constitution. NEMA, through the replying affidavit of Zephania Ouma, maintained that it acted within its statutory mandate and that the applicant had not even taken a plea. The court framed two issues: whether grounds for certiorari or prohibition were established, and costs. Applying Articles 42 and 70 of the Constitution, the court held that NEMA's investigation, the restoration order and the charges were within its mandate; the applicant failed to show lack of integrity, unreasonableness, discrimination, malice, abuse of power or likely unfair trial. Non-supply of prosecution documents ordered on 16th September 2015 did not warrant quashing the proceedings, as remedial orders could be sought from the trial court. The notice of motion was dismissed with costs to NEMA, and the consent stay orders of 9th March 2016 were vacated, with directions for service on the Magistrate in charge, Ndhiwa Law Courts.

Key legal issues

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01

Whether NEMA's investigation, restoration order of 29th April 2015 and subsequent criminal charges were within its statutory mandate

Holding

They were within NEMA's mandate; the Applicant failed to establish failure of integrity, unreasonableness, discrimination or ulterior motive

Reasoning

NEMA is the legal body charged with ensuring legal action is taken against those fouling the environment. The complaint by Homa Bay Integrity was legitimate. The court found no evidence that the process was tainted by political influence, that the charges lacked statutory basis, or that the restoration order had been validly superseded so as to render the charge defective.

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02

Whether the decision to charge the Applicant was actuated by malice or abuse of power and whether he risks an unfair trial

Holding

The Applicant failed to show malice, abuse of power or risk of an unfair hearing

Reasoning

The court found the Applicant's allegations of pre-determined offences and playing to the public gallery unsubstantiated. The charges were founded on an alleged breach of a lawful restoration order, and any grievance about non-supply of prosecution documents could be remedied in the criminal trial itself.

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Legal principles established

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  • Article 70 of the Constitution allows any person to move the court for redress on environmental rights without demonstrating loss or injury
  • A complaint by a member of the public to NEMA about environmental degradation cannot be faulted as undue political influence
  • Non-compliance by a prosecuting authority with an order to supply documents in a criminal case does not, on its own, warrant quashing of the criminal proceedings

Court orders

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  1. 1.The notice of motion dated 10th March 2016 by the Exparte Applicant is dismissed with costs to the 2nd Respondent
  2. 2.The stay orders in relation to Ndhiwa SRM criminal case No.309 of 2015 issued by consent on 9th March 2016 are vacated
  3. 3.The Deputy Registrar to ensure a copy of this order is extracted and served on the Magistrate in charge, Ndhiwa Law Courts for information and further necessary action

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 42
  • Constitution of Kenya, 2010Article 70
  • Constitution of Kenya, 2010Article 10
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 40
  • Environmental Management and Co-ordination ActSection 87(2)(a)
Jurisdiction invoked
Articles 42, 47 and 70 of the Constitution;Environmental Management and Co-ordination Act; supervisory jurisdiction for orders of certiorari and prohibition

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Senior Resident Magistrate’s Court Ndhiwa & National Environmental Management Authority Exparte Sajalendu Maiti [2016] KEELC 202 (KLR)", Case Analysis (2016). Judicial Review (Notice of motion dated 10th March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/202/eng@2016-11-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.