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ELCDismissedEnvironment & Land Case 487 of 2018· [2023] KEELC 21471 (KLR)

Hi-Plast Limited v Cabinet Secretary, Ministry of Environment and Natural Resources & 3 others

Environment and Land Court at Nairobi
9 November 2023
2,826 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court dismissed a plastic bag manufacturer's damages claim because the legality of the plastic bag ban was already settled in a 2018 case.

What this practically means

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Executive summary

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The 3rd Defendant (NEMA Director General) filed a Notice of Motion dated 23 June 2022 seeking striking out of the suit as res judicata, and the 4th Defendant (Attorney General) filed a preliminary objection dated 28 February 2022 on jurisdiction, res judicata and want of a reasonable cause of action. Hi-Plast Limited, a manufacturer of plastic and polythene bags for 15 years, sued over Gazette Notice No. 31 of 14 March 2017 banning use, manufacture and importation of plastic bags, claiming general and special damages on grounds of absence of regulations, lack of public participation and non-compliance with the Constitution and the Statutory Instruments Act. The plaintiff filed no response or submissions. Applying Section 7 of the Civil Procedure Act and the Supreme Court's elements of res judicata in John Florence Maritime Services, the court compared the suit with the 2018 three-judge judgment in Kenya Association of Manufacturers, which had upheld the same gazette notice on identical grounds. Although Hi-Plast was not a party to that suit, Explanation 6 to Section 7 deems all persons interested in a litigated public right to claim under the litigating parties. The cause of action and subject matter were identical, the only difference being the remedy of damages. The court further held that damages cannot arise from an illegality, invoking ex turpi causa non oritur actio. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the suit is res judicata despite the plaintiff not having been a party to the 2018 KAM suit

Holding

Yes - the parties in the 2018 suit litigated on behalf of all persons interested in the public right, and the cause of action and subject matter are identical

Reasoning

The court applied Section 7 CPA and Explanation 6. The 2018 KAM judgment, by a three-judge bench of competent jurisdiction, finally determined the legality of the same gazette notice on identical grounds (public participation, statutory authority, Statutory Instruments Act compliance). The plaintiff, though not a party, claims under persons who litigated the public right. The only difference is the remedy sought - damages instead of declaratory orders - which cannot escape the bar.

p. 5
02

Whether damages can be awarded for loss flowing from a ban whose legality was upheld

Holding

No - damages cannot arise from an illegality; ex turpi causa non oritur actio bars the claim

Reasoning

Relying on Holman v Johnson and Scott v Brown as cited in prior Kenyan decisions, the court held that no court will lend its aid to a plaintiff whose cause of action arises from the transgression of a positive law. The plaintiff's plastic manufacturing business was declared illegal and punishable, so it cannot claim damages for enforcement of that law.

p. 6

Legal principles established

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  • Where parties litigate over a public right, all persons interested in that right are deemed to claim under them (Explanation 6 to Section 7 CPA), so a non-party may be bound by the earlier judgment
  • A party cannot seek an alternative remedy (damages) where the substantive question on legality was already settled in a former suit

Court orders

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  1. 1.The suit is dismissed as res judicata
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 7 (including Explanation 6)
  • Environmental Management and Coordination ActSections 3 and 86
  • Statutory Instruments ActSections 5, 6, 8(1), 11(1) and (2)
  • Constitution of KenyaArticles 70 and 119

Cases cited (13)

  • Kenya Association of Manufacturers vs CS Ministry of Environment and 3 others
    (2018) eKLR (Nairobi ELC Petition No. 32 of 2017)

    Former suit in which the legality of the plastic bag ban was heard and determined

  • William Koross vs Hezekiah Kiptoo Komen & 4 Others
    [2015] eKLR

    Principles underlying res judicata

  • Ngugi vs Kinyanjui & 3 others
    [1989] KLR 146

    Res judicata principles

  • Siri Ram Kaura vs M.J.E. Morgan
    CA 71/1960 (1961) EA 462

    Res judicata

  • Uhuru Highway Development Ltd vs Central Bank of Kenya, Exchange Bank Ltd (in voluntary liquidation) and Kamlesh Mansukhlal Pattni
    [1999] eKLR

    Elements of res judicata

  • Mukisa Biscuits vs West End
    [1969] EA 696

    Definition of preliminary objection as a pure question of law

  • Owners of the Motor Vessel 'Lillian S'

    Jurisdiction is everything

  • Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others
    (2017) eKLR

    Elements of res judicata

  • E.T.V vs Attorney General & Another
    (2012) eKLR

    Res judicata

  • John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2021] eKLR

    Delimiting the doctrine of res judicata and its elements

  • Nicholas Njeru v Attorney General & 8 others
    Civil Appeal 110 of 2011 (2013) eKLR

    Elements of res judicata

  • Republic vs Ministry of Roads & Another Ex parte Vipingo Ridge Limited & Another
    (2016) eKLR

    Definition of ex turpi causa non oritur actio

  • Michael Mwaura Njoroge vs Peter Kamau Munene; Beatrice Kori (Interested Party)
    [2019] eKLR

    Quoting Scott v Brown on ex turpi causa

Jurisdiction invoked
Article 162(2) of the Constitution (Environment and Land Court); objection raised under Section 7 of the Civil Procedure Act

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, "Hi-Plast Limited v Cabinet Secretary, Ministry of Environment and Natural Resources & 3 others", Case Analysis (2023). Environment & Land Case 487 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21471/eng@2023-11-09

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