Engineer Njagi Justin Muranga v Director General National Environmental Management Authority [2018] KEELRC 1581 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

MISC APPLICATION NO. 19 OF 2018 (JR)

IN THE MATTER OF AN APPLICATION BY ENGINEER NJAGI JUSTIN MURANGA FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND PROHIBITION

AND

IN THE MATTER OF THE DIRECTOR GENERAL, NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY

AND

IN THE MATTER OF THE ENVIRONMENTAL (IMPACT ASSESSMEMT AND AUDIT) REGULATIONS, 2003 & ENVIRONMENTAL IMPACT ASSESSMENT ACT

BETWEEN

ENGINEER NJAGI JUSTIN MURANGA...................................................APPLICANT

v

DIRECTOR GENERAL

NATIONAL ENVIRONMENTAL MANAGEMENT AUTHORITY....RESPONDENT

JUDGMENT

1. On 28 February 2018, Eng. Njagi Justin Muranga (the applicant) was granted leave to apply for orders of certiorari/prohibition to quash a decision taken by the Director General, National Environmental Management Authority (the Respondent) to suspend him as a Lead Expert.

2. The applicant filed a substantive motion on 16 March 2018 and during an appearance before Wasilwa J, the Respondent sought for and was given 7 days to file a response. Mention for further directions was scheduled for 24 April 2018, when the Deputy Registrar directed that the application be heard on 9 May 2018.

3. On 9 May 2018, the parties appeared before the Deputy Registrar and indicated that they had a consent. The Deputy Registrar therefore had the file placed before the Duty Court.

4.  On the same day, the Duty Court entered a consent in terms that the leave which had been granted would operate as a stay pending inter partes hearing of the motion.

5. The Respondent was given 21 days to file a response to the application and hearing was rescheduled to 11 June 2018.

6. When the application was called out for hearing as scheduled, the Respondent was not represented and because the date had been taken in their presence, the Court allowed the applicant to proceed.

7. It has disturbed the Court that the Respondent did not file any response to the motion despite being directed twice by the Court to file the response(s). It is also telling that its advocate failed to attend Court in spite of being aware of the hearing date.

8. The Court has considered all the material placed before it and come to the conclusion that the motion lacks merit.

9. For one, the applicant did not demonstrate or prove that there was an employer/employee relationship between him and the National Environmental Management Authority.

10. The National Environmental Management Authority merely carried out a licensing/authorising mandate to allow the applicant conduct environmental audits. It is therefore doubtful whether this Court has jurisdiction.

11. Two, the Environmental Management and Coordination Act has established a Tribunal which should deal with the disputes such as presented by the applicant at the first instance, with appeals therefrom going to the High Court.

12. The applicant herein did not demonstrate that he presented his case to the Tribunal at the first instance.

13. In the view of this Court, the initiation of these proceedings before exhausting the mechanisms entrenched in the Act make these proceedings not only premature but incompetent.

14. For the above reasons, the Court orders that the motion be dismissed with no order as to costs.

Delivered, dated and signed in Nairobi on this 13th day of July 2018.

Radido Stephen

Judge

Appearances

For applicant                                      Mr. Makumi instructed by J. Makumi & Co. Advocates

For Respondent                                  Erastus K. Gitonga, Advocate, National Environment Management Authority

Court Assistant                                   Lindsey