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ELCPartially AllowedNot stated in the excerpt provided· [2017] KEELC 3204 (KLR)

Raycon Limited v Superply Limited & 2 others [2017] KEELC 3204 (KLR)

Environment and Land Court
21 March 2017
3,613 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked timber harvesting in the Mau because neither side had a valid licence, and referred the scandal to anti-corruption investigators.

What this practically means

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Executive summary

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The plaintiff company sued after discovering on 7 February 2017 that the 1st and 2nd defendants had entered Arama 3(F) Portion 2 in the Mau Conservancy and harvested trees the plaintiff claimed had been allocated to it by the 3rd defendant, the Director, Kenya Forest Service, by letter dated 5 April 2016. In an amended application for injunction, the plaintiff sought restraints on harvesting, processing, disposal and removal of produce from Arama 3F Portions 2, 3 and 4, plus production of harvest records. The 1st and 2nd defendants opposed, alleging the plaintiff's licence was expired and illegal, and asserting a mutual understanding to swap portions because the plaintiff had harvested their allocation elsewhere. The Director, KFS filed nothing. The court first dismissed preliminary objections on jurisdiction, authority to file suit and service of summons, holding that a forest harvesting dispute squarely falls within the Environment and Land Court's jurisdiction. On the merits of the application, the court found the plaintiff had displayed no licence for 2016 or 2017 and had not paid the Appropriations in Aid of Kshs. 2,846,202.80, and so had demonstrated no right warranting an injunction in its favour. However, the 1st and 2nd defendants had also displayed no licence and effectively admitted harvesting without one, contrary to Section 64 of the Forest Conservation and Management Act, 2016. The court restrained them from harvesting or removing timber from Arama 3F2 until they displayed a licence and allocation, ordered the 3rd respondent to produce harvest records and evidence within 21 days, and referred the matter's revelations to the EACC and CID for investigation of possible crimes. The plaintiff's suit partially succeeded on the injunction application, essentially on protective rather than plaintiff-centred terms.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over a forest harvesting dispute said to be commercial

Holding

The court has jurisdiction because the matter squarely concerns sustainable exploitation of forests, an environmental conservation issue

Reasoning

Mr. Biko argued the dispute was commercial and outside the court's jurisdiction. The court held the dispute concerns harvesting of trees in a forest conservancy and sustainable exploitation of forests, an issue of environmental conservation, properly before the Environment and Land Court. The Forest Management and Conservation Act, 2016 recognises this jurisdiction.

p. 3
02

Authority of a director to file suit without annexed resolution

Holding

Directors generally have authority to file suits on behalf of their companies; absence of an annexed resolution is not fatal where no one from the company refutes proper institution

Reasoning

The 1st and 2nd respondents objected that no company resolution was annexed. The court found no issue: the company had come to court and no one from the company refuted that it had not properly come to court. It is undisputed that Mr. Bundotich is a director and directors generally have authority to file suits for their companies.

p. 4
03

Whether the plaintiff established a prima facie right to a temporary injunction over Arama 3F2

Holding

No; the plaintiff displayed no licence for 2016 or 2017 and had not paid the Appropriations in Aid of Kshs. 2,846,202.80, so no injunction in its favour could issue

Reasoning

The plaintiff's licence was issued 22 October 2015, backdated to 1 January 2015, expiring 31 December 2015. No licence for 2016 or 2017 was displayed, yet an allocation for Arama 3F2 was issued on 5 April 2016. The letter required harvesting within 30 days and payment of Kshs. 2,846,202.80 before harvesting; by February 2017 neither condition had been met. The plaintiff therefore had no right capable of protection by injunction.

p. 4
04

Whether the 1st and 2nd defendants displayed a licence to harvest Arama 3F2

Holding

No; they admitted harvesting without a licence, ostensibly on the basis of a mutual understanding/exchange with the plaintiff, an admission of an offence under Section 64(2) of the Forest Conservation and Management Act, 2016

Reasoning

The 1st and 2nd respondents did not display any licence for Arama 3F2. Hon. Musa Sirma explained harvesting on the basis that the plaintiff had harvested their allocation in 7G1. The court found this amounted to an admission of felling forest produce without a licence, an offence under Section 64(2) of the Act, done right under the nose of the 3rd respondent.

p. 5
05

Production of harvest records and investigation of forest mismanagement

Holding

The 3rd respondent was ordered to produce evidence of who harvested the portions, whether licensed, and payment of Appropriations in Aid, within 21 days; and the ruling referred for investigation by EACC and CID

Reasoning

Though the plaintiff showed no right, the court could not ignore the respondents' admissions nor the KFS's apparent mismanagement, including irregular backdated licences and late payments. Exercising its supervisory responsibility over forest conservation matters, the court ordered production of harvest records, service on KFS's Director, and referral to EACC and CID to investigate possible crimes.

p. 5

Legal principles established

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  • No person may fell, cut, take or remove forest produce in a public forest except under a licence, permit or management agreement issued under the Forest Conservation and Management Act, 2016
  • A party who has not displayed a licence and has not paid the required Appropriations in Aid has no enforceable right to harvest timber and cannot benefit from court orders
  • Harvesting disputes touching on sustainable exploitation of forests fall within the jurisdiction of the Environment and Land Court notwithstanding a commercial flavour

Court orders

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  1. 1.1st and 2nd respondents barred from harvesting any timber in Arama 3F2 unless and until they produce their licence and letter allocating the area to them
  2. 2.1st and 2nd respondents barred from removing any harvested timber in respect of Arama 3F2 unless and until they display the licence and rights to harvest, or until the hearing and conclusion of the suit
  3. 3.3rd respondent to produce evidence of who harvested Arama 3F2, 3 and 4, whether such person had a licence and right to harvest, and whether such person paid the necessary Appropriations in Aid
  4. 4.3rd respondent to produce the harvest records for Arama 3F Portions 2, 3 and 4 within 21 days of service of the order
  5. 5.Deputy Registrar to extract the order and ensure a Court Process Server serves it upon the Director of Kenya Forest Service
  6. 6.Ruling to be served upon the Director of the Ethics and Anti-Corruption Commission and the Director of CID for investigation of whether any crime has been committed

Authorities

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Legislation

  • Forest Conservation and Management Act (referred to as Forest Management and Conservation Act, 2016)Section 64(1)(a) and 64(2)
Jurisdiction invoked
Article 162(2)(b) jurisdiction of the Environment and Land Court, as recognised under the Forest Management and Conservation Act, 2016

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, "Raycon Limited v Superply Limited & 2 others [2017] KEELC 3204 (KLR)", Case Analysis (2017). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3204/eng@2017-03-21

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