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ELCDismissedELC Judicial Review Suit No. 26 of 2019 (formerly H.C. J.R. No. 76 of 2019)· [2019] KEELC 1871 (KLR)

Lucy Kagai & another v Kibera Chief Magistrate’s Court & 3 others [2019] KEELC 1871 (KLR)

Environment and Land Court
8 August 2019
1,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to stop criminal prosecution over riparian land encroachment, holding NEMA acted lawfully and public interest outweighed individual objections.

What this practically means

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Executive summary

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Lucy Kagai and Stephen Muthaura sought judicial review orders of prohibition and a declaration to stop their prosecution in Kibera Chief Magistrate's Criminal Case No. 273 of 2019, in which they faced charges of constructing a house on a river without NEMA approval. The 1st Applicant was involved in ongoing civil litigation (ELC Suit No. 139 of 2018) over the ownership of Dagoretti/Riruta/3882 and contended that her success in obtaining interim orders provoked the Area Chief of Riruta Location, who violently arrested her. She claimed she was never given prior notice or reasons for the intended charges as required by Article 47(2) of the Constitution and Section 4(3) of the Fair Administrative Action Act, and that the 2nd Applicant, a pastor, was unreasonably arrested as a supposed foreman. NEMA countered that plea had been deferred on medical grounds and that it was conducting a broad enforcement operation to clean up the Nairobi River and its tributaries, resulting in multiple prosecutions. The court framed two issues: whether the Respondents' actions constituted unfair administrative action, and whether the criminal proceedings should be stayed. It held that NEMA acted within its constitutional and statutory mandate under Section 118 of EMCA and Section 29 of the DPP Act, that the criminal process itself affords the Applicants a hearing, and that the charges concerning riparian encroachment affect the public at large. Applying the public-interest balance of convenience principle, the court dismissed the application with no orders as to costs.

Key legal issues

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01

Whether the institution of criminal proceedings without prior notice infringed the Applicants' right to fair administrative action

Holding

The court found no infringement; the 3rd Respondent acted within its constitutional and statutory mandate in instituting proceedings

Reasoning

The court reasoned that NEMA was carrying out a broad enforcement operation to clean up the Nairobi River and its tributaries, which led to multiple criminal cases being instituted against several parties. Sections 118 of EMCA and 29 of the DPP Act empower environmental inspectors to institute criminal proceedings. The criminal process itself affords the Applicants an opportunity to be heard on the charges, so the absence of prior administrative notice did not render the action unfair.

p. 3
02

Whether the court should stay or prohibit the criminal proceedings in the subordinate court

Holding

The court declined, holding that granting the orders would amount to undue interference with the criminal proceedings and would prevent NEMA and the Inspector General from carrying out their legal mandate

Reasoning

The court emphasised the public interest dimension of the charges concerning encroachment on riparian land, adopting the principle from Rodgers Muema Nzioka v Tiomin Kenya Limited that in environmental matters the balance of convenience favours the public at large rather than individual litigants. Judicial review was not an appropriate vehicle to halt proceedings within the mandate of the environmental regulator.

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Legal principles established

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  • An environmental inspector may institute and undertake criminal proceedings before a court of competent jurisdiction in respect of any offence alleged to have been committed under the Environmental Management and Co-ordination Act, or discontinue such proceedings with the approval of the Director of Public Prosecutions
  • Where a right or fundamental freedom is likely to be affected by administrative action, the person has a right to written reasons for the action under Article 47(2)
  • In environmental matters, the balance of convenience test should consider the convenience of the public at large as opposed to that of the parties in the suit
  • Criminal proceedings arising from charges affecting the public at large, such as encroachment on riparian land, should not be halted by judicial review merely on the basis of an alleged lack of prior administrative notice

Court orders

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  1. 1.Dismissal of the Applicants' application dated 20/03/2019
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 2(1), 2(2), 20, 22, 23, 25(a), 25(c), 29(d), 39, 47(2), 49, 157(10), 157(11), 159
  • Fair Administrative Action Act No. 4 of 2015Sections 4(1), 4(2), 4(3), 6, 7, 9(1)
  • Civil Procedure Rules 2010Order 53
  • Law Reform Act Cap 26Sections 8 and 9
  • Environmental Management and Co-ordination ActSection 118
  • Director of Public Prosecutions ActSection 29

Cases cited (4)

  • Republic v National Environmental Management Authority & Another Ex Parte Philip Kisia & Council of Nairobi
    [2013] eKLR
  • Stanley Munga Githunguri v Republic
    [1986] eKLR
  • Republic v Chief Magistrates Courts at Mombasa ex parte Ganijee & Another
    [2002] eKLR
  • Rodgers Muema Nzioka & others v Tiomin Kenya Limited
    (2006) 1 KLR (E&L) 423
Jurisdiction invoked
Articles 2(1) and 2(2), 20, 22, 23, 25(a) and (c), 29(d), 39, 47, 49, 157(10) and (11) and 159 of the Constitution; Sections 8 and 9 of the Law Reform Act Cap 26; Order 53 of the Civil Procedure Rules 2010; Sections 4(1), (2) and (3), 6, 7 and 9(1) of the Fair Administrative Action Act No. 4 of 2015

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, "Lucy Kagai & another v Kibera Chief Magistrate’s Court & 3 others [2019] KEELC 1871 (KLR)", Case Analysis (2019). ELC Judicial Review Suit No. 26 of 2019 (formerly H.C. J.R. No. 76 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1871/eng@2019-08-08

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