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ELCAllowedNot stated in the excerpt· [2021] KEELC 2745 (KLR)

Makueni County Assembly v National Environment Management Authority & 3 others;Mbooni Development Group & 5 others (Interested Parties) [2021] KEELC 2745 (KLR)

Environment and Land Court of Kenya
30 June 2021
1,425 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 cancelled a community's legal costs bill, recognising its forest-protection case as genuine public interest litigation.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 10th December 2019 by which the Petitioner/Applicant, acting through its clerk Robert M. Musyoka, sought review of the costs orders in the court's judgment of 13th June 2019, under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The petition had been struck out with costs after the court found it hopelessly defective in form and substance, concerning Kivale/South Mbooni Forest. The Applicant argued the petition was public interest litigation on behalf of residents of Mbooni South, Makueni County, prompted by unlicensed logging threatening a community catchment area, and that condemning a public interest petitioner to costs would chill future such litigation. The 2nd to 6th Interested Parties opposed, relying on Section 27 of the Civil Procedure Act and contending the petition was frivolous and vexatious, not genuine public interest litigation. The sole issue was whether sufficient grounds for review of the costs order existed. Applying the Supreme Court's exposition in Mumo Matemu and Mativo J's test in Brian Asin, the court found the petition had been filed bona fide in a representative capacity for the people of Mbooni South, alleging infringement of Articles 42 and 69, with a far-sighted intention to conserve the forest for the community's benefit, notwithstanding the failure to verify the identity of the subject forest. The court allowed the review, vacated the costs order, and terminated the taxation proceedings with no orders as to costs.

Key legal issues

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01

Whether the order as to costs in the judgment of 13th June 2019 should be reviewed on the ground that the petition was public interest litigation

Holding

The court allowed the review, vacating the costs order, holding that the petition was filed in a representative capacity on behalf of the people of Mbooni South with a bona fide intention to conserve the forest for the community's benefit.

Reasoning

Applying the Mumo Matemu exposition of public interest litigation and Mativo J's test in Brian Asin, the court examined whether the petition was brought bona fide without extraneous motives. It found the petition was filed in a representative capacity for the people of Mbooni South, alleging infringement of Articles 42 and 69 through unlicensed logging. Although the petition had been defective because the subject forest was not verified, there was a far-sighted intention to conserve the resource for the community, warranting vacation of the costs order.

p. 3

Legal principles established

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  • In public interest litigation, courts have discretion on a case by case basis to evaluate the terms and public nature of the matter vis-à-vis the status of the parties, drawing on Article 259(1).
  • A petitioner in public interest litigation must show a bona fide intention devoid of extraneous motives, personal gain, private profit or political or other oblique considerations.

Court orders

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  1. 1.The judgment delivered on 13th June 2019 is reviewed to vacate the orders as to costs against the Petitioner/Applicant
  2. 2.The taxation proceedings before the Taxing Officer are terminated with no orders to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Constitution of KenyaArticles 22 and 258
  • Constitution of KenyaArticle 259(1)
  • Constitution of KenyaArticles 42 and 69
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27(1)
  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 26(3) (invoked by the Applicant; the court noted it did not encounter this sub-rule)

Cases cited (4)

  • Mumo Matemu –Vs- Trusted Society of Human Rights Alliance and 5 others
    [2014] eKLR
  • Brian Asin & 2 others –Vs- Wafula W. Chebukati & 9 others
    [2017] eKLR
  • Kenya Human Rights Commission & another –Vs- Attorney General & 6 others
    [2019] eKLR
  • Cecilia Karuru Ngayu –Vs- Barclays Bank of Kenya & another
    [2016] eKLR
Jurisdiction invoked
Article 50(1) of the Constitution; Sections 80 and 27(1) of the Civil Procedure Act; Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules; Rule 26(3) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Makueni County Assembly v National Environment Management Authority & 3 others;Mbooni Development Group & 5 others (Interested Parties) [2021] KEELC 2745 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2745/eng@2021-06-30

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