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ELCDismissedEnvironment & Land Petition E002 of 2022· [2022] KEELC 15360 (KLR)

Great Meru Timber Manufacturers Association v Kenya Forest Service & 3 others

Environment and Land Court
14 December 2022
CNCK Nzili
1,040 words in judgment
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The bottom line

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The Environment and Land Court in Meru refused to transfer or pause a timber association's petition against Kenya Forest Service, ruling it should continue where it was filed.

What this practically means

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Executive summary

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This ruling by CK Nzili, J of the Environment and Land Court at Meru determines a notice of application dated June 15, 2022 filed by the respondents seeking two orders: transfer of the petitioner's constitutional petition to the constitutional and human rights division of the High Court in Nairobi to be heard alongside Nyeri Constitutional Petition No E013 of 2021, Nakuru Petition No E19 of 2021 and Nairobi Constitutional Petition No E053 of 2021, and a stay of the Meru petition pending determination of those matters. The application was grounded on the similarity of issues across the petitions, with the respondents appearing in all of them, and was supported by an affidavit of Emmanuel Kieti annexing the pleadings in the other suits. It was brought under articles 22(1) & (3) and 159 of the Constitution and rules 3, 8 and 17 of the Mutunga Rules. The court reviewed authorities on transfer between courts of equal status, including Daniel Mugendi, Kakuzi PLC and Pamoja Women Development Program, accepting that transfers serve harmonization and prevent conflicting decisions. However, it distinguished Kakuzi PLC because judgment in the similar Nairobi petition had already been delivered by Wabwoto, J on October 21, 2022. Holding that no useful purpose would be served by the proposed transfer, the court declined both transfer and stay and dismissed the application. It further directed that a notice issue to the petitioner to address the court on whether the petition remains sustainable given the judgment in the similar petition. No costs order was recorded.

Key legal issues

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01

Whether transfer of the petition to Nairobi was warranted

Holding

Transfer refused because the similar Nairobi petition had already been determined, so transfer would serve no useful purpose

Reasoning

The respondents sought transfer to have the petition heard alongside similar petitions in Nyeri, Nakuru and Nairobi. The court noted that unlike in Kakuzi PLC, where judgment was pending, the Nairobi petition had already been decided by Wabwoto, J on October 21, 2022. With that judgment in place, consolidation or transfer would achieve nothing, so the application was dismissed.

p. 3
02

Whether the court has power to transfer and consolidate petitions

Holding

Rule 17 of Legal Notice No 117 of 2013 permits consolidation and rule 8(2) of the Mutunga Rules permits transfer, but the power is discretionary and was not exercised here

Reasoning

The application was brought under articles 22(1) & (3) and 159 of the Constitution and rule 3 of the Mutunga Rules. Rule 17 allows a court to consolidate several petitions on just terms, and rule 8(2) allows transfer. The court reviewed authorities on transfer between courts of equal status but declined to exercise the discretion on the facts.

p. 2

Legal principles established

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  • Courts of equal and concurrent status (High Court, ELRC and ELC) may transfer matters directly amongst themselves in the spirit of harmonization to do justice
  • Transfers may be made to prevent conflicting decisions on the same legal issues
  • Under rule 8(1) of the Mutunga Rules a suit should be filed in the court within whose jurisdiction the alleged violation took place, though rule 8(2) permits transfer on application

Court orders

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  1. 1.The respondents' application dated June 15, 2022 is dismissed
  2. 2.The petition is not transferred to Nairobi and is not stayed
  3. 3.A notice to issue to the petitioner to address the court on whether the petition is still sustainable given the judgment rendered in a similar petition

Authorities

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Legislation

  • Constitution of KenyaArticle 22(1) & (3)
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 50(1)
  • Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice & Procedure Rules, 2013 (Mutunga Rules)Rules 3, 8(1), 8(2) and 17 (Legal Notice No 117 of 2013)
  • National Land Commission ActSection 15

Cases cited (5)

  • Charles Gitonga Rugoji v David Kirimi Mwithimbu & another
    [2021] eKLR

    Transfer allowed to bring harmony in resolution of a dispute revolving around the same subject matter

  • Johanna Githinji and 400 others v AG and others
    [2015] eKLR

    Declined to deconsolidate consent consolidation; joint determination means issues of law and fact considered together, no need for a test suit

  • Kakuzi PLC v AG and another
    [2020] eKLR

    Transfer of petition between divisions; transfers prevent conflicting decisions; costs and fair trial considerations

  • Daniel Mugendi v Keyatta University and others
    Civil Appeal No 6 of 2012

    Concurrent courts of equal status should transfer matters to the appropriate court in the spirit of harmonization

  • Pamoja Women Development Program and others v Jackson Wangombe and others
    [2016] eKLR

    Courts of equal status can have direct transfer of matters amongst themselves

Jurisdiction invoked
Articles 22(1) & (3) and 159 of the Constitution; rule 3 of the Constitution of Kenya (Protection of Rights & Fundamental Freedoms) Practice & Procedure Rules, 2013 (Mutunga Rules)

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, "Great Meru Timber Manufacturers Association v Kenya Forest Service & 3 others", Case Analysis (2022). Environment & Land Petition E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15360/eng@2022-12-14

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