Toshike Construction Co. Ltd & 5 others v Sokhi & 25 others

FUAD HUSSEIN .......................................................................... 12TH RESPONDENT STEPHEN GATHUITA MWANGI ............................................ 13TH RESPONDENT STEPHEN GATHUITA MWANGI ............................................ 14TH RESPONDENT PATRICK ANALO AKIVAGA ................................................... 15TH RESPONDENT PATRICK ANALO AKIVAGA ................................................... 16TH RESPONDENT MAMO BORU MAMO ............................................................... 17TH RESPONDENT MAMO BORU MAMO ............................................................... 18TH RESPONDENT DANIEL WANJIRU ..................................................................... 19TH RESPONDENT DANIEL WANJIRU ..................................................................... 20TH RESPONDENT MAURICE AKETCH MBS .......................................................... 21ST RESPONDENT MAURICE AKETCH MBS ......................................................... 22ND RESPONDENT ENG. KANDA BOWEN .............................................................. 23RD RESPONDENT ENG. KANDA BOWEN .............................................................. 24TH RESPONDENT SILAS JOHN SANYA OGENGO ................................................ 25TH RESPONDENT SILAS JOHN SANYA OGENGO ................................................ 26TH RESPONDENT RULING Background 1. The Plaintis led this suit vide the Plaint dated 17th February, 2023. The suit was originally led against the 1st and 2nd Defendants only. 2. The Plaintis’ case was that the 1st Defendant was the owner and or benecial owner of the parcel of Land known as L.R. No. 209/5665/2- Mwambao Lane, o Limuru Road, Parklands, Nairobi. The 1st, 2nd and 3rd Plaintis on their part are residents, occupiers and benecial owners of the properties known as Maisonnettes I, H & G respectively erected on L.R. No. 209/7546, City Park Drive o, Limuru Road, in Parklands, Nairobi which according to the Plaintis, neighbours the 1st Defendant’s property. Prior to November, 2022, the 1st Defendant relied on a private sewer line that passes through, among other properties, the Plaintis’ properties, for disposal of toilet and bathroom euents. 3. The Plaintis averred that on or about the month of November, 2022, the 1st Defendant/his servants/ agents/developer/proponent started developing his suit premises from a single residential dwelling house to commercial (shops) cum multi-dwelling residential apartments by demolishing the single dwelling house and other structures thereon, cutting down the trees and other vegetation that existed thereon and excavating the suit premises grounds. 4. It was the Plaintis’ contention that the 1st Defendant had not obtained the requisite development permissions, permit/licences from the 2nd Defendant’s County Executive Committee Member in charge of Built Environment and Urban Planning prior to, or at the time of embarking on the said developments. The Plaintis alleged that they had brought to the attention of the 2nd Defendant, the https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22047/eng@2023-11-30 2

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unauthorized developments being undertaken by the 1st Defendant, but the 2nd Defendant had not taken any remedial action against the 1st Defendant/his agents/servants/developer/proponent. 5. The Plaintis further contended that the development by the 1st Defendant had also not obtained approvals, licenses and or permission from the National Environment Management Authority – NEMA, and National Construction Authority – NCA. 6. The Plaintis asserted that the actions by the 1st Defendant amounts to a violation and breach of Article 42 and 70 of the Constitution, the physical and Land Use Planning Act, 2019, the National Construction Authority Act and the Environmental Management Act as well as the Rules and Regulations. The Plaintis particularized the alleged breaches, violations, disregards and disobediences of the Constitution and other Laws, at paragraph 15(a) to (j) of their plaint. 7. The Plaintis accused the 2nd Defendant of failing to perform its statutory obligations by issuing an order to the 1st Defendant to stop the development and restore the suit premises to its original condition or to as near as its original condition within 90 days of such an order as provided by the law. The works though had been stopped by the NCA vide a notice dated 16th January 2023, but the 1st Defendant had ignored the notice and continued with the developments. The Plaintis further alleged that the 1st Defendant had also ignored an order by NEMA. 8. As a result of the 1st and the 2nd Defendants’ breaches and violations of the Constitutional and Statutory provisions cited, the Plaintis alleged that they had suered and would continue to suer violation of their fundamental rights, injuries, losses, annoyances, nuisances and inconveniences as particularized in paragraph 19(a) to (h) of the Plaint. The Plaintis intimated that the 1st Defendant and the Member of County Assembly in charge of the Eastleigh Airbase Ward had threated and intimidated the 2nd Plainti Company director’s life and his family after he complained to NCA, NEMA and the 2nd Defendant on the ongoing development. Despite reporting to the Criminal Investigations Department, the threats had not stopped. 9. The Plaintis consequently prayed for judgment against the Defendants for a permanent injunction to stop the development by 1st Defendant, an order of demolition of the development, general and aggravated damages amongst others. 10. Alongside the plaint, the Plainti led a Notice of Motion Application under Certicate of Urgency of even date seeking temporary injunctive orders to restrain the 1st Defendant from undertaking any further development activities on L.R. No. 209/5665/2, Mwambao Lane o Limuru Road in Parklands. 11. On 29th March, 2023, the Court issued an order of temporary injunction pending hearing and determination of the application. The Court further ordered that the Plaint and the application be amended to include NEMA as a party. This was informed by the fact that NEMA had been adversely mentioned in the Plaint the application and one of the prominent issues to be determined was whether NEMA had approved the alleged development on the 1st Defendant’s parcel of land. 12. The Amended Plaint and the amended Notice of Motion application were led on 6th April, 2023, including NEMA as the 3rd Defendant. The Plaintis however, on their own initiative added 10 others Defendants including, NCA, an entity referred to as Mansaat Holdings Ltd, and other individuals. The individuals include the CECM in Charge of the 2nd Defendant’s Built Environment and Urban Planning Sector, the Director-General & CEO of NEMA, and the CEO of NCA, expressed to have been sued in both their ocial and or individual capacities. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22047/eng@2023-11-30 3

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13. The Defendants/Respondents responded in various ways, including ling of replying adavits and Preliminary Objections. The Court has so far determined the Preliminary Objection by the 5th Respondent, dismissing the same with costs. 14. This ruling is in respect of the Plaintis’ Amended Application dated 6th April, 2023 and the 1st Defendant’s Application dated 18th April 2023, as per the Court’s directions issued on 4th July, 2023. 15. I note that at the time of the issuance of the Court’s directions on 4th July, 2023 and on the subsequent ones of 26th September 2023, the 3rd Respondent, NEMA and its ocers who have been joined into the suit as Defendants had not appointed an Advocate and or entered appearance in this matter. They only led a Memorandum of Appearance on 3rd February, 2023 dated 29th September, 2023. The said Memorandum was led by Brenda A. Majune Advocate for the 3rd, 9th and 10th Defendants. The Memorandum of appearance was led alongside a Notice of Preliminary Objection of even date challenging the jurisdiction of this Court to entertain the Plaintis’ application on the basis that an EIA License had been issued to the 5th Defendant/Respondent in respect to the suit premises on 13th June, 2023. Consequently, under the provisions of Section 129 of the Environmental Management and Co-ordination Act (EMCA), any person aggrieved by a decision in respect to the issuance of an EIA License under the Act and the regulations has a right of appeal against the said decision to the National Environment Tribunal (NET). 16. The 3rd, 9th and 10th Respondents further had led a Replying Adavit deposed by one Catherine Thaithi, the Nairobi County Director of Environment on 29th September, 2023. In the said adavit, the deponent deposes that prior to and after the institution of this suit, the 3rd Respondent’s ocers had made impromptu inspections at the suit property after a complaint was lodged with them about an illegal excavation being carried out at the site of the suit premises. 17. Following the inspection, they had issued an improvement notice to one Mr. Abdullahi Osman, requiring the stoppage of the excavation and all related activities on site until an EIA license was acquired. The 5th Defendant went ahead and took out an EIA License No. NEMA/EIA/PSL/26369 which was issued by the 3rd Respondent for purposes of Construction of a twenty-one (21) storey residential building and features appurtenant to, on the suit property L.R. No. 209/5665/2 o Limuru Road in Parklands, Nairobi. The deponent attached the license as annexure ‘CT -2’. 18. Following the issuance of the license, the improvement notice issued earlier on was vacated. 19. The 3rd, 9th & 10th Defendants/Respondents led submissions too in respect to the Plaintis’ Amended Application. Determination The 1st Defendant’s Application Dated 18th April 2023 20. The 1st Defendant’s application is supported by his adavit sworn on 18th April, 2023. He asserts that he is not the owner of the suit property and has no interest whatsoever in the suit property. The assertions by the 1st Defendant have been supported by the 5th Defendant who conrms ownership of the suit property. 21. The Plaintis however, adamantly insist that the 1st Defendant is the owner of the suit property without providing any documentary evidence to contradict the document presented by the 1st Defendant. From the adavit of the 3rd, 9th and 10th Defendants, it is also clear that the EIA license was issued to the 5th Defendant, further supporting the 1st Defendant’s claim. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22047/eng@2023-11-30 4

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22. Considering the materials placed before me, I am persuaded that the 1st Defendant has established that he is no longer the owner of the suit property. The 5th Defendant has positively armed its ownership of the suit property. Accordingly, there is and there was no basis – legal or factual of ling and maintaining the suit against the 1st Defendant. It was the Plaintis’ responsibility to establish ownership of the suit property prior to ling the case. 23. Accordingly, the Plainti’s suit against the 1st Defendant is hereby struck out with costs. 24. On the issue of costs however, the Court will award nominal costs to the 1st Defendant against the Plaintis taking into account the fact that the suit is still at its early stages. The nominal costs assessed at Kshs 50,000 only. A. The Plainti ’s Amended Notice Of Motion Application Dated 6th April, 2023. 25. The Application by the Plaintis is premised on the grounds that the developments on the suit property had not been approved/permitted by NEMA and the Nairobi City County Government. 26. From the adavit evidence presented before the Court, it is clear that the 5th Defendant had not only obtained the approval of the Nairobi City County Government but also change of user in respect of the suit property as well. The Plaintis’ in response to those assertions introduced a new issue that there was no public participation. 27. While lack of public participation may as well be a valid ground of objection to the grant of change of user of the suit property, the appropriate forum provided for under the Physical and Land Use Planning Act is the County Physical and Land Use Planning Liaison Committee. 28. In regard to the NEMA License, it is now clear that the lincense was issued on 15th June, 2023. The same has been attached as annexure ‘CT -2’ in the replying adavit led on behalf of the 3rd, 9th & 10th Defendants. This is a fact which has not been challenged. The Court cannot close its eyes to it. As I noted earlier, the replying adavit is part of the record of this Court. 29. The import of the issuance of the EIA license by NEMA is that any complaints against the issuance of E.I.A Licence must rst and foremost be lodged with the Tribunal established under EMCA. The Court has no jurisdiction at the rst instance. This position was pronounced in the Kibos Case by the Court of Appeal sitting in Kisumu and upheld by the Supreme Court. 30. In the case Kibos Distillers Limited & 4 others v Benson Ambuti Adega & 3 others [2020] eKLR, the Court of Appeal reiterated that jurisdiction cannot be conferred by ‘the art and craft of counsel or a litigant drawing pleadings’ to confer or oust the jurisdiction conferred on a Tribunal or another institution by the Constitution or statute. 31. The court summarized on the issue of jurisdiction in the following words; “ To this extent, I nd that the learned judge erred in law in nding that the ELC had jurisdiction simply because some of the prayers in the petition were outside the jurisdiction of the Tribunal or National Environmental Complaints Committee. A party or litigant cannot be allowed to confer jurisdiction on a court or to oust jurisdiction of a competent organ through the art and craft of drafting of pleadings. Even if a court has original jurisdiction, the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs that have legislatively been mandated to hear and determine a dispute. Original jurisdiction is not an ouster clause that ousts the jurisdiction of other competent organs. Neither is original jurisdiction an inclusive clause that confers https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22047/eng@2023-11-30 5

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jurisdiction on a court or body to hear and determine all and sundry disputes. Original jurisdiction simply means the jurisdiction to hear specically constitutional or legislatively delineated disputes of law and fact at rst instance. To this end, I reiterate and arm the dicta that in Speaker of the National Assembly v James Njenga Karume [1992] eKLR where it was stated that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.” 32. The Court further observed that the jurisdiction of the ELC is appellate under Section 130 of EMCA and Sections 15, 19 and 38 of the Physical Planning Act. Asike-Makhandia J.A stated that: “ An original jurisdiction is not an appellate jurisdiction. A court with original jurisdiction in some matters and appellate jurisdiction in others cannot by virtue of its appellate jurisdiction usurp original jurisdiction of other competent organs. I note that original jurisdiction is not the same thing as unlimited jurisdiction. A court cannot arrogate itself an original jurisdiction simply because claims and prayers in a petition are multifaceted. The concept of multifaceted claim is not a legally recognized mode for conferment of jurisdiction to any court or statutory body.” 33. I note that Preliminary Objections have been led to challenge the jurisdiction of the Court. Though the Court’s directions were in respect of the application by the Plaintis and that of the 1st Defendant, jurisdiction however, is an issue that is central in every case. It need not be raised by any party. The Court on its own motion must, satisfy itself that it has jurisdiction. At the point of determining the Preliminary Objection by the 5th Defendant which the Court dismissed, sucient evidence had not been availed to support the Preliminary Objection. That situation has since changed. The Court having considered all the materials placed before it and having considered the Plainti’s case in its totality is convinced that it lacks jurisdiction to determine the Plainti’s case in the rst instance. The pronouncement in the above cited binding decision of the Court of Appeal upheld by the Supreme Court is unequivocal. I nd it necessary to repeat it here for emphasis, that: “ ….. the learned judge erred in law in nding that the ELC had jurisdiction simply because some of the prayers in the petition were outside the jurisdiction of the Tribunal or National Environmental Complaints Committee. A party or litigant cannot be allowed to confer jurisdiction on a court or to oust jurisdiction of a competent organ through the art and craft of drafting of pleadings. Even if a court has original jurisdiction, the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs that have legislatively been mandated to hear and determine a dispute.” 34. The Plaintis have not exhausted the statutory foras provided under the provisions of the EMCA and the PLUPA. I further agree with the holding of my brother Judge Oguttu Mboya in the case of Mercy Wangari Buku vs NEMA & 3 others (2021) eKLR, where he stated as follows; “ In this regard, I share the strong position that the Honourable Court must be the Forum of the last call and not the Port of rst call. In support of the foregoing position, I am compelled to take guidance in the case of Georey Muthinja Kabiro v Samuel Muguna Henry [2015] eKLR, where the honourable court held as hereunder; ' It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the rst port of call the moment a storm brews …. The exhaustion doctrine is a sound one and serves the purpose https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22047/eng@2023-11-30 6

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of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is rst of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 35. I will desist from discussing the merits, or otherwise of the Plainti’s suit at this point in time in order not to prejudice their case should they opt to go to the other fora under EMCA and PLUPA. 36. Consequently, I strike out the Plaintis’ suit in its entirety and o course the application under consideration and any other pending application for want of jurisdiction. 37. I will however spare the Plaintis the costs for the reason that, at least for the NEMA License, it is clear that one had not been issued at the time the Plaintis led this suit. 38. The upshot from the foregoing is that the Plaintis’ suit against the 2nd-13th Defendants is struck out but with no order as to costs for want of jurisdiction. As against the 1st Defendant, nominal costs of Kshs.50,000/- are awarded. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. M. D. MWANGI JUDGE In the virtual presence of: Mr. Mavisi holding brief for Mr. Thongori for the Plaintis/Applicants. Mr. Adano for the 5th Defendant, also holding brief for Mr. Haji for the 1st Defendant/applicant Ms. Majune for the 3rd, 9th & 10th Defendants/Respondents No appearance for the 2nd, 4th, 6th, 7th, 8th, 11th & 13th Defendants. YVETTE: COURT ASSISTANT. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22047/eng@2023-11-30 7

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