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ELCPartially AllowedNot stated in judgment (constitutional petition filed 1 November 2012)· [2018] KEELC 2253 (KLR)

African Centre for Rights and Governance (ACRAG) & 3 others v Naivasha Municipal Council [2018] KEELC 2253 (KLR)

Environment and Land Court of Kenya
11 July 2018
MSMunyao Sila
6,158 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court held the Nakuru Governor and a county executive in contempt for ignoring an order to stop an illegal dumpsite.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (Munyao Sila J, 11 July 2018) determined a contempt application arising from the court's judgment of 31 May 2017, in which the petitioners' constitutional right to a clean and healthy environment (Article 42) was found violated by an unlicensed dumpsite on Naivasha/Maraigushu Block 11/4 (Karai) operated by the County Government of Nakuru. The judgment had directed the County either to apply to NEMA for a licence within 14 days or to cease dumping and restore the site within 90 days. The County did neither, its extension-of-time application was abandoned, and dumping continued. Three issues were framed: whether service of the judgment was necessary; who the accounting officers of the County are; and whether contempt was established. Holding that knowledge of an order suffices for contempt proceedings, the court found the respondents undeniably aware of the judgment. Construing Section 30 of the Contempt of Court Act, it defined 'accounting officer' functionally, deeming the Governor and the County Executive in charge of Environment, Natural Resources, Energy and Water liable, while sparing the Chief Officer, whose mandate is merely to execute his superiors' orders. Finding willful disobedience - no licence application, no EIA, no restoration, continued dumping - the court held the County and the two officers in contempt, allowed the application to that extent, deferred sentence pending mitigation, and awarded the applicants the costs of the application.

Key legal issues

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01

Whether personal service of the judgment was a prerequisite to the contempt application

Holding

Knowledge of the order, not personal service, is what matters; the respondents and their officials were deemed aware of the judgment since their counsel was in court when it was delivered and they applied for extension of time to comply with it

Reasoning

The court traced the shift in the law from insisting on personal service to treating knowledge of the order as paramount, relying on Court of Appeal decisions in Wambora and Shimmers Plaza. Counsel for the respondent was present when judgment was delivered, and the respondent's application dated 12 June 2017 for extension of time demonstrated undeniable awareness of the judgment.

p. 3
02

Whether the Governor and county executive officers cited are accounting officers liable under Section 30 of the Contempt of Court Act

Holding

The Governor and the County Executive in charge of Environment, Natural Resources and Energy are deemed accounting officers for purposes of the judgment; the Chief Officer is not, though his joinder is not fatal

Reasoning

Since the Contempt of Court Act does not define 'accounting officer', the court defined it functionally as any person vested with responsibility to enforce the court order. Article 179(4) makes the governor the chief executive of the county, and the County Executive for Environment is accountable to the governor for the relevant docket. Reliance was placed on decisions of Karanja J, Ongaya J and Odunga J holding governors and county executives liable.

p. 6
03

Whether the respondents committed willful disobedience of the judgment of 31 May 2017

Holding

Yes - the County Government of Nakuru is in contempt of the judgment, and the Governor and the County Executive in charge of Environment are held in contempt

Reasoning

No application for a NEMA licence was made within 14 days; no EIA was submitted; no extension of time was obtained; no closure or restoration of the dumpsite was attempted within 90 days; and dumping of waste continued more than a year after judgment. The excuse of 'government bureaucracy' was rejected as flimsy given the risk to human life and health posed by the unlicensed dumpsite.

p. 7

Legal principles established

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  • Knowledge of a court order suffices for contempt proceedings and dispenses with the requirement of personal service
  • For purposes of Section 30 of the Contempt of Court Act, an 'accounting officer' includes any person vested with the responsibility of enforcing, complying with or acting upon a court order
  • A county governor, as chief executive of the county, can be held in contempt for the failure of the county government to obey court orders
  • Enjoining additional persons vested with power to execute a court order does not render a contempt application incompetent

Court orders

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  1. 1.The Governor of Nakuru County and the County Executive in charge of Environment, Natural Resources, and Energy are held in contempt of court and the application is allowed to that extent
  2. 2.Sentence to be delivered after the contemnors are given an opportunity to mitigate, with date for mitigation and further directions given immediately upon delivery of the ruling
  3. 3.The applicants shall have the costs of this application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 42; Article 176(1); Article 179; Article 260
  • Environment Management and Coordination Act, 1999 (EMCA)Sections 87, 88, 89
  • Contempt of Court Act, Act No. 46 of 2016Sections 4(1), 30(1)-(6)

Cases cited (6)

  • Justus Kariuki Mate & Another Vs Martin Nyaga Wambora & Another
    Court of Appeal at Nyeri, Civil Appeal No 24 of 2014
  • Shimmers Plaza vs NBK
    Court of Appeal at Nairobi, Civil Appeal No. 33 of 2012 (2015) eKLR (Ruling of 18 February 2015)
  • Basil Criticos Vs Attorney General and 8 Others
    [2012] eKLR
  • Masosa Construction Company vs Executive Committee, Kisii County & 3 Others
    High Court of Kenya at Kisii, Misc. Civil Application No. 72 of 2015 (2016) eKLR (ruling of 5 April 2016)
  • Dr. Fredrick Njeru Kamunde vs Tharaka Nithi County Government & 2 Others
    ELRC at Nyeri, Petition No. 6 of 2015 (ruling of Ongaya J, of 11 March 2016)
  • Republic v County Chief Officer, Finance & Economic Planning, Nairobi City County Ex Parte Stanley Muturi
    [2018] eKLR
Jurisdiction invoked
Original constitutional jurisdiction under Article 42 of the Constitution (right to clean and healthy environment) read with Section 30 of the Contempt of Court Act, No. 46 of 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, "African Centre for Rights and Governance (ACRAG) & 3 others v Naivasha Municipal Council [2018] KEELC 2253 (KLR)", Case Analysis (2018). Not stated in judgment (constitutional petition filed 1 November 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2253/eng@2018-07-11

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