Charles Ongadi Nyambuga,Erik Dillerud,Alice Oyugi Maganya,Oliver Soren Otieno,Philip Odero Onyango,Thomas Godfery Macheneri,Emma Adhiambo Otieno,Loice Asewe Ochanda & Phelix Agurey Osongo v Caleb Odhiambo Oguya,Director City Planning, County Government of Kisumu & City Manager, County Government of Kisumu [2018] KEELC 1865 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC. CASE NO. 09 OF 2015

CHARLES ONGADI NYAMBUGA................................1ST PLAINTIFF

ERIK DILLERUD............................................................2ND PLAINTIFF

ALICE OYUGI MAGANYA............................................3RD PLAINTIFF

OLIVER SOREN OTIENO.............................................4TH PLAINTIFF

PHILIP ODERO ONYANGO..........................................5TH PLAINTIFF

THOMAS GODFERY MACHENERI............................6TH PLAINTIFF

EMMA ADHIAMBO OTIENO.......................................7TH PLAINTIFF

LOICE ASEWE OCHANDA...........................................8TH PLAINTIFF

PHELIX AGUREY OSONGO.........................................9TH PLAINTIFF

VERSUS

CALEB ODHIAMBO OGUYA.....................................1ST DEFENDANT

THE DIRECTOR CITY PLANNING,

COUNTY GOVERNMENT OF KISUMU..................2ND DEFENDANT

CITY MANAGER,

COUNTY GOVERNMENT OFKISUMU...................3RD DEFENDANT

RULING

1.  Caleb Odhiambo Oguya, the 1st Defendant, filed the notice of Preliminary Objection dated 25th July 2017 seeking for striking out of suit commenced through the plaint dated 19th January 2015 with costs on the following two grounds;

1. “This court lacks the statutory jurisdiction to hear and determine this case. The dispute herein is a preserve of the National Environment Tribunal established under Section 125 of the Environment Management and Co-ordination Act (Cap 387) laws of Kenya.

2. This case violates Section 6 of the Civil Procedure Act as it is a duplicate of and subjudice the National Environment Tribunal Appeal Case No. 151 of 2015 which involves the same parties where the matter in issue is also directly and substantially in issue herein.”

2. The Preliminary Objection came up for hearing on the 22nd January 2018 when directions on filing and exchanging written submissions were given. The learned counsel for the 1st Defendant and the Plaintiffs filed their written submissions dated 16th February 2018 and 14th March 2018 respectively.

3. The following are the issues for determination by the court;

a) Whether the court has jurisdiction to determine this dispute in view of the existence of the National Environment Tribunal.

b) Whether there exist another suit between the same parties and over the same subject matter in the National Environment Tribunal, and if so, which of the suits was filed before the other.

c) Who pays the costs in the preliminary objection.

4. The Court has carefully considered the grounds on the notice of preliminary objection, written submissions by both counsel, the pleadings filed and come to the following determinations;

a) That from the pleadings in the plaint dated 19th January 2015, the Plaintiff’s takes issue with the development being carried out by the 1st Defendant on Land Parcels 13432/10 and 11, Kisumu Municipality for the following reasons;

·   That they were not consulted before the approval yet they own properties in the neighborhood.

·   That the development’s approval was illegally and un-procedurally done as the project does not conform to the land use zoning of the area.

·   That no change of user was obtained to allow such a development on the plots.

·   That no Environmental Impact Assessment was carried out for the project.

b) That the Defendants have opposed the Plaintiffs’ suit through their filed statements of defence, averring that the development complained off is duly approved and is carried out in a zone for such developments.

c) That this court has exclusive original and appellate jurisdiction to hear and determine all disputes on the environment and the use and occupation of, and title to land in accordance with Article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Court Act No. 19 of 2011. The court has carefully considered the various superior courts decisions cited by both counsel in their written submissions and is in agreement that if this suit is only  about a challenge of licence issued under Section 67 of the Environmental Management & Coordination Act, then such a dispute would in the first instance be with the National Environmental Tribunal under Section 129 of the said Act. That however, by the time this suit was filed on 20th January 2015, the Plaintiffs’ position was as per paragraph 9 of their plaint that “…there was no Environmental Impact Assessment done…… and if …..National Environmental Management Authority (NEMA) license was issued, the same was irregularly obtained….” That the court has taken note of the copy of the Environment Impact Assessment License attached to the 1st Defendant replying affidavit sworn on the 21st April 2015. The license is dated 13th April 2015 and hence not in existence by the time this suit was filed on 20th January 2015.

d) That the suit raises other issues for determination beyond the Environment Impact Assessment licence. Those issues includes whether or not the area where the project is situated is zoned for such a development; whether the development plans were procedurally processed and whether the 1st Defendant obtained a change of user to allow such a project on the plots. That those issues are beyond the mandate of the National Environment Tribunal. That in such a scenario, the court agrees with the finding in Taib Investment Limited vs Falum Salim Said & 5 Others Mombasa ELC No. 37 of 2016 where the court held that;

“The tribunal established under Section 129 of the EMCA cannot entertain a dispute as to whether the County Government or the Director of Physical Planning approved the 1st to the 4th Defendants plan. Where we have environmental and developmental issues in a suit that are supposed to be dealt with by numerous tribunals or bodies, and where those issues cannot be dealt with separately, it is only this court, pursuant to the provisions of Article 162 (2) (b) of the Constitution, that can deal with all those issues. That it follows that this court has the jurisdiction to hear and determine the issues in this suit.”

e) That the National Environment Tribunal Appeal Case No. 151 of 2015, as submitted by the Counsel for the plaintiffs, was filed after the license of 13th April 2015 was issued. The appeal before the Tribunal seeks for the cancellation of the license which is not a prayer in this suit. That National Environmental Management Authority (NEMA) are not party in the tribunal Appeal. That the Plaintiffs Counsel’s submissions on the date of filing of the Tribunal appeal, prayer thereon, and the NEMA being a party has not been disputed by the 1st Defendant. That accordingly the provision of Section 6 of the Civil Procedure Act Chapter 21 of Laws of Kenya does not make this suit subjudice as it was filed months before the license of 13th April 2015, which is the subject matter of the Tribunal appeal filed thereafter, was issued.

f)  That the parties in this suit could do justice for themselves and the court by ensuring compliance with Order 11 of Civil Procedure Rules as proposed in the Court’s ruling of 18th May 2016. That way, the matter will proceed to hearing without undue delay and determined on merit.

5. That following form the foregoing, the court finds no merit in the 1st Defendant’s Preliminary Objection to the Plaintiffs’ suit. The Preliminary Objection is dismissed with costs to the Plaintiffs.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE

DATED AND DELIVERED THIS 26th DAY OF September 2018

In the presence of:

Plaintiffs   Absent

Defendants Absent

Counsel    Mr. Odeny for 1st Defendant. Mr. Anyl for Rodi for 2nd and 3rd Defendants.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE