REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT CHUKA CHUKA ELC PETITION CASE NO 7 OF 2017 FORMERLY MERU ELC PETITION CASE NO. 9 OF 2014 IN THE MATTER OF ARTICLES 22, 70 AND 258 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 19, 20, 22, 27, 32, 35, 42, 43, 44 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF THE CONTRAVENTION OF ARTICLES 2(5) & (6), 10, 60, 62, 63, 67, 69, 70, 71, 73 AND 174 OF THE CONSTITUTION OF KENYA 2010 BETWEEN LAW & SOCIAL DEVELOPMENT TRUST (LASODET).....................1ST PETITIONER ATIRIRI BURURI MA CHUKKA TRUST................................................2 ND PETITIONER WENDY W. MUTEGI & OTHER 3000 PETITIONERS......................3RD PETITIONERS VERSUS THE HONOURABLE ATTORNEY GENERAL.....................................1 ST RESPONDENT THE CABINET SECRETARY MINISTRY OF ENERGY AND NATURAL RESOURCES...............................................................2 ND RESPONDENT THE CABINET SECRETARY MINISTRY OF LANDS.......................3RD RESPONDENT THE NATIONAL LAND COMMISSION..............................................4 TH RESPONDENT THE KENYA FOREST SERVICE..........................................................5 TH RESPONDENT KENYA WILDLIFE SERVICES.............................................................6 TH RESPONDENT THE CABINET SECRETARY MINISTRY OF INFORMATION & COMMUNICATION...............................................7 TH RESPONDENT THARAKA NITHI COUNTY GOVERNMENT......................................8 TH RESPONDENT RHINO ARK...............................................................................................9 TH RESPONDENT
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THE NYAYO TEA ZONES DEVELOPMENT CORPORATION.......10TH RESPONDENT NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY (NEMA).............................................................................11 TH RESPONDENT FOREST COMMUNITY NEIGHBOURS...................................1 ST INTERESTED PARTY SAW MILLERS..............................................................................2 ND INTERESTED PARTY RULING 1. This application filed by the 5th respondent and dated 13th January, 2017 seeks orders: (i) That the petitioners’ suit against the 5th respondent be dismissed with costs for want of prosecution. (ii) That costs for this application be provided for. 2. The application has the following grounds: (a) That more than one year has elapsed since the last time the suit was in court for Ruling on 18.12.2014. (b) That the petitioners’ have not set down the suit for hearing since then. (c) That there has been inordinate delay in the prosecution of the suit on the part of the petitioners. 3. The application is supported by the affidavit of, JOE KATHUNGU, which states: “I, JOE KATHUNGU OF P. O. Box 1637, EMBU in the Republic of Kenya do hereby make oath and state as follows: 1. That I am an Advocate of the High Court of Kenya having the conduct of this matter on behalf of the 5 th Respondent herein. 2. That the Petitioners herein filed two applications dated 22 nd April, 2014 and 13th June, 2014 respectively. 3. That the Ruling in respect of both applications was delivered on 18 th December, 2014. 4. That since the delivery of the said Ruling, the petitioners have not taken any step to prosecute the suit. 5. That the delay in prosecuting this suit has been inordinate. 6. That it is quite clear that the petitioners have lost interest in prosecuting this suit. 7. That I pray that in the interest of justice, this suit be dismissed with costs to the 5 th respondent 4. When the matter was heard interpartes on 31.10.2017, the application was supported by the 5 th and 11th respondents and by the 1 st interested party. Although Miss Munga for the 5 th respondent indicated that the 5 th respondent was unable to serve the 3 rd petitioner, I take the position that this is not fatal to the application. 5. Order 17 allows a court to dismiss a suit where after one year parties do not show cause to the satisfaction of the court that the suit should not be dismissed. It is clear that the 3 rd petitioner has for a period of over 1 year not moved this court in any way. The other petitioners have also not done so. 6. I find that the petitioners and the other parties have not shown to the satisfaction of the court why this suit should not be dismissed. 7. This suit is dismissed. 8. The suit having been couched in terms that suggested that it was in the nature of public interest litigation, I will not award costs to any of the parties. Parties will bear their own costs. 9. It is so ordered. Delivered in open court at Chuka this 31st day of October, 2017 in the presence of:
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CA: Ndegwa Miss Munga h/b Kathungu for 5th Respondent Mwanzia h/b Mutinda for 1st Interested party Gitonga present for 11th Respondent P. M. NJOROGE JUDGE
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