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ELCDismissedELC Suit (application dated 1st February 2017 in suit concerning LR No. Kajiado/Loodariak/908) - Kajiado· [2017] KEELC 313 (KLR)

Ntiyione v China Communications Construction Company Ltd & 5 others (Environment and Land Case 235 of 2017) [2017] KEELC 313 (KLR)

Environment and Land Court
11 December 2017
COChristine Ochieng
4,168 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kajiado Environment and Land Court dismissed a contempt application against a construction company because the court order served lacked a Penal Notice and personal service.

What this practically means

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Executive summary

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The court dealt with a contempt application dated 1st February 2017 and a Notice of Preliminary Objection dated 13th September 2017 by the 1st Defendant, China Communications Construction Company Limited. The plaintiff, Charity Mpano Ntiyioine, alleged that after service of interim orders of 24th October 2016 restraining quarrying and crushing on LR No. Kajiado/Loodariak/908, the 1st Respondent and its directors continued quarrying, generating dust violating her right to a clean and healthy environment under Article 42. The 1st Defendant's preliminary objection contended that jurisdiction lay with the National Environment Tribunal and the Public Complaints Committee under EMCA. The court held that while the ELC has original and appellate jurisdiction over environment and land disputes, prayers (c) and (e) of the Plaint - cancellation of the EIA licence and an order for a fresh EIA study - must first be taken to the National Environment Tribunal; the preliminary objection therefore partially failed. On contempt, the court held that contempt proceedings are criminal in nature and the burden lies on the plaintiff. The order disobeyed was ex parte and the underlying injunction application had never been heard inter partes; the affidavits of service did not show the mandatory Penal Notice accompanied the orders; the directors were never personally served and the company used independent contractors. Contempt was consequently not proved and the application was declined. The court directed that the plaintiff's application of 24th October 2016 be set down for hearing within seven days and urged compliance with Order 11.

Key legal issues

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01

Jurisdiction of the ELC versus the National Environment Tribunal over challenges to an EIA licence

Holding

The ELC has jurisdiction over all prayers in the Plaint except prayers (c) (cancellation of the EIA licence) and (e) (fresh EIA study), which must first go to the National Environment Tribunal before an appeal lies to the ELC; the Preliminary Objection therefore partially fails.

Reasoning

The court contrasted Section 129(2) of EMCA with Section 13(1) of the ELC Act and adopted Owners of Motor Vessel Lilian 'S' and Matanga Tea & Coffee, holding that statutory mechanisms for licence disputes must be respected while the ELC retains jurisdiction over the environmental and land claims. Prayers (c) and (e) fall within the Tribunal's remit.

p. 6
02

Whether the 1st Respondent and its directors were in contempt of the order of 24th October 2016

Holding

Contempt was not proved; the application was declined.

Reasoning

The order was ex parte and the injunction application had never been heard inter partes; the affidavits of service did not show that a Penal Notice accompanied the orders; the directors were never personally served and the company used independent contractors; contempt being criminal in nature, the burden rested on the Plaintiff, who did not discharge it.

p. 8
03

Validity of the extensions of the ex parte interim orders

Holding

The 1st Defendant argued the extensions were a nullity under Order 40 rule 4(2) CPR as the ex parte order lapsed after 14 days; the court noted the point in assessing whether there was a subsisting order to disobey.

Reasoning

The court reproduced Order 40 rule 4(2) limiting ex parte injunctions to fourteen days with one possible extension, and noted the injunction application remained undetermined, casting doubt on whether a subsisting order existed that could found contempt.

p. 6

Legal principles established

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  • Jurisdiction is everything; a court without jurisdiction cannot take any further step and the issue must be raised and decided at the earliest opportunity
  • Parties cannot avoid statutory dispute-resolution mechanisms by converting disputes into constitutional issues
  • Every person against whom a court order is made must obey it unless and until it is discharged, even if believed irregular or void
  • Elements of civil contempt: terms of the order must be clear and unambiguous, the defendant must have knowledge/notice, must have acted in breach, and the conduct must be deliberate; standard of proof is higher than civil
  • An ex parte injunction may be granted only once for not more than fourteen days and extended only once by consent or court order for a period not exceeding fourteen days
  • Once notice of an order is proved, the respondent bears an evidential burden regarding wilfulness and mala fides

Court orders

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  1. 1.Preliminary Objection partially succeeds: prayers (c) and (e) of the Plaint must be referred to the National Environment Tribunal first before an appeal can lie to the ELC; the Court retains jurisdiction over the remaining prayers.
  2. 2.The application dated 1st February 2017 (contempt) is declined/dismissed.
  3. 3.The Plaintiff's application dated 24th October 2016 to be set down for hearing within the next seven (7) days from the date of the ruling for hearing and final determination.
  4. 4.Parties are urged to comply with Order 11 to enable the suit be set down for hearing and final determination.

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 42, 48, 70, 162(2)(b), 165
  • Civil Procedure ActSections 3A, 63(c)
  • Civil Procedure RulesOrder 40 rules 3(1) and (3), 4(2); Order 11
  • Contempt of Court ActSections 4(1)(a), 5, 23(a), 27(b), 28(1), 29(1)
  • Environment Management and Coordination Act (EMCA)Sections 3, 31, 32, 111(1), 129(1), 129(2); EMCA Amendment Act No. 5 of 2015
  • Environment and Land Court ActSections 13(1), 13(2)(c) & (d), 18, 19, 29

Cases cited (8)

  • The Owners of the Motor Vessel Lilian 'S' v Caltex Kenya Limited
    (1989) KLR 1
  • Matanga Tea & Coffee Company Limited v Shikara Limited & Anor
    (2015) eKLR
  • Josephine Mutisya v Lillian Muthama
    (2014) eKLR
  • Direct Assurance Co. Ltd v Jamii Bora
    (2015) eKLR
  • Maisha Nishike Ltd v Commissioner of Lands & 3 others
    (2011) eKLR
  • Kalyasoi Farmers Cooperative Society & others v County Council of Narok
  • Shimmers Plaza Limited v National Bank of Kenya Ltd
    (2015) eKLR
  • North Tetu Farmers Co. Ltd v Joseph Nderitu Wanjohi
    (2016) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13(1) of the Environment and Land Court Act; Section 129(2) of EMCA

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, "Ntiyione v China Communications Construction Company Ltd & 5 others (Environment and Land Case 235 of 2017) [2017] KEELC 313 (KLR)", Case Analysis (2017). ELC Suit (application dated 1st February 2017 in suit concerning LR No. Kajiado/Loodariak/908) - Kajiado. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/313/eng@2017-12-11

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