Kiliavo Fresh Limited, Harji Mavji & Suresh Kurji Kerai v National Environment Management Authority & Big Life Limited; County Government of Kajiado & Conservation Alliance of Kenya (Interested Parties); Paula Kahumbu (Alleged Contemnor) [2021] KENET 657 (KLR)

REPUBLIC OF KENYA

THE NATIONAL ENVIRONMENT TRIBUNAL

AT NAIROBI

TRIBUNAL APPEAL NO. 38 of 2020

KILIAVO FRESH LIMITED..................................................................1ST APPELLANT

HARJI MAVJI..........................................................................................2ND APPELLANT

SURESH KURJI KERAI........................................................................3RD APPELLANT

-VS-

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY....1ST RESPONDENT

BIG LIFE LIMITED............................................................................2ND RESPONDENT

-AND-

COUNTY GOVERNMENT OF KAJIADO..........................1ST INTERESTED PARTY

CONSERVATION ALLIANCE OF KENYA.......................2ND INTERESTED PARTY

-AND-

DR. PAULA KAHUMBU.......................................................ALLEGED CONTEMNOR

RULING ON APPELLANT’S APPLICATION FOR CONTEMPT

1. By a notice of appeal dated 21ST September 2020, the Appellants filed an appeal against the 1t Respondent’s decisions dated 9th September 2020 and 18th September 2020 as referenced NEMA/CDE/KJD/60/18Vol.5 and NEMA/EIA/5/2/Vol.XXX1 respectively. The Appellants claimed that the 1ST Respondent unlawfully interfered with the Appellants’ legitimate expectation under Section 58, 59, 60, and 63 of the Environment Management and Coordination Act 1999 as read with Sections 4 and 7 of the Fair Administrative Actions Act 2015 and Articles 26, 40, and 47 of the Constitution of Kenya 2010. The Appellants based their appeal under Section 129(2) of the EMCA 1999.

2. The Appellant sought the following reliefs:

a. An Order against the 1st Respondent, setting aside, vacating and/or otherwise quashing the Decisions of the 1st Respondent dated 9th September 2020 and 18th September 2020 issued as referenced NEMA/CDE/KJD/60/18Vol.5 and NEMA/EIA/5/2/Vol.XXX1 respectively.

b. An Order against the 1st Respondent to immediately cease and desist from any further conduct at the behest, instruction and influence of 3rd Parties calculated to interfere with and/or otherwise disturb the peaceable enjoyment of the Appellants’ property rights in respect of a project for the Integrated Mixed-Use Farm Development on Property L.R. No. LOITOKTOK/KIMANA/-TIKONDO/4209/4210 & 4211.

c. An Order declaring that the 1st Respondent has violated the Appellants’ right to property and fair administrative action.

d. An Order for Costs on a full indemnity basis; and

e. Any such further order as the Honourable Tribunal may deem appropriate and fit and mete to give effect to the Orders sought above.

3. The Appellants filed a notice of motion for contempt dated 2nd November 2020 against Dr. Paula Kahumbu seeking the following orders:

a. Spent

b. Spent.

c. Spent.

d. THAT pending the inter parties hearing and determination of the instant application, the Tribunal be pleased to issue an order directing Dr. Paula Kahumbu to purge the contempt of contemptuously publishing derisive and derogatory remarks and comments on a matter that is before the Tribunal with intent to ridicule, scandalize and disparage the authority of the Honourable Tribunal; and in so doing direct Dr. Paula Kahumbu to issue an unequivocal, unreserved and unconditional apology and retraction in writing of the said derisive and derogatory remarks.

e. THAT the Tribunal be pleased to cite Dr. Paula Kahumbu for contempt, and issue summons to Dr. Paula Kahumbu to show cause why she should not be committed to jail and penalized with a further monetary fine for the sum not less than KES. 1,000,000 for contempt of the Honourable Tribunal.

f. The Tribunal be pleased to issue any further orders and/or directions as may be necessary to give effect to the Orders sought herein and that it deems fit in the interests of justice.

4. The remarks that are the subject of the contempt application are captured in the Appellants’ application as follows:

Planting avocados in a fragile ecosystem will not only affect the elephants, but degrade the soils, the water table, destroy habitats and affect the local climate.

Kiliavo did not show cause, they instead took NEMA to court and have decided to continue clearing land despite the stop order.

Is this impunity, corruption or sheer bullying? I’m disgusted by all those behind this scheme including those who are defending it.

5. The Alleged Contemnor filed a Replying Affidavit dated 25th November 2020 and Grounds of Opposition dated 19th November 2020 opposing the contempt application on the following grounds:

a. The Alleged Contemnor’s comments do not in any way disregard, disobey or in whichever manner refer to the proceedings or orders of the Honourable Tribunal.

b. The Alleged Contemnor’s post on social media was made in good faith, based on truth that indeed the 1st Respondent had issued a STOP ORDER and without any knowledge that the Applicants had already filed the current Appeal and/or any orders had been given.

c. The Alleged Contemnor was never a party to the appeal, had no knowledge of the proceedings or any orders of the Honorable Tribunal other than the STOP order issued by the 1st Respondent.

d. The Application does not meet the threshold for the contempt of the Tribunal under Section 127(2) (d) (ii) and 133 (2) of the Environmental Management and Coordination Act.

e. The Application offends the Alleged Contemnor’s rights under Article 33 of the Constitution, is made in bad faith, is an abuse of court process, vexatious, scandalous, and only calculated to harass the Alleged Contemnor.

f. The Application lacks merit and should be dismissed with costs.

SUBMISSIONS BY THE PARTIES

6. In its submissions, the Appellants raised two issues for determination:

a. What is the legal threshold for conduct amounts (sic) to contempt of scandalizing the court, and compromising the due administration of justice; and whether the Honourable Tribunal has jurisdiction to cite the contemnor?

b. Whether Dr. Paula Kahumbu, by virtue of her social media posts published on Twitter @paulakahumbu on 17th October 2020 at 1351 HRS amounts to contempt of scandalizing the court and compromising the due administration of justice?

7. On the first issue, the Appellants submitted that the Tribunal has jurisdiction under Section 133(2) EMCA 1999 and relied on Republic v Tony Gachoka & another [1999] eKLR for the position that contempt of court is any attempt at interfering with the administration of justice.

8. On the second issue, the Appellants submitted that the Alleged Contemnor had knowledge of the present proceedings and that her words were disparaging and calculated at scandalizing the Tribunal and compromising the due administration of justice. To buttress this point, they relied on Republic v Ahmed Abulfathi Mohamed & another [2019] eKLR and Attorney General v Times Newspaper Ltd [1974] A.C. 273.

9. The Appellants prayed for costs on a full indemnity basis and for the Tribunal to cite the Alleged Contemnor for contempt including an order against her to purge the social media posts in question.

10. The Alleged Contemnor filed written submissions dated 30th November 2020. The Alleged Contemnor raised 2 issues for determination:

a. Whether the Alleged Contemnor’s comments amount to disobedience or disregard of the Tribunal’s order?

b. Whether the Applicants have made out a case for contempt?

11. On the first issue, the Alleged Contemnor relied on Article 33 of the Constitution. She argues that the Alleged Contemnor was exercising her right to freedom of expression. She submitted that her posts were made in good faith without malice and were based on truth.

12. On the second issue, the Alleged Contemnor relied on Elphas Odiwuor v Orange Democratic Party Movement & 5 others [2017] eKLR and Katsuri Limited v Kapurch and Depor Shah (2016) eKLR for the proposition that an application for civil contempt proceedings requires the applicant to prove the terms of the order of court, knowledge of the terms by the Respondent and failure by the Respondent to comply with those orders. The Alleged Contemnor argued that she had not taken part in willful and deliberate disobedience of court orders because she had no knowledge of the present proceedings.

ISSUES AND DETERMINATION

13. The main issue for determination is whether the Alleged Contemnor’s published words amount to contempt of the Tribunal.

14. The Black’s Law Dictionary (9th Edition) defines contempt as: ‘(1) The act or state of despising; the condition of being despised. (2) Conduct that defies the authority or dignity of a court or legislature.’

15. Section 127 of the EMCA 1999 provides:

Any person who …. at any sitting of the Tribunal:

a.

b.

Commits an offence under this Act.

16. Section 133 of the EMCA 1999 also provides:

It shall be an offence for any person to engage in acts of or make omissions amounting to contempt of the Tribunal and the Tribunal may punish such person for contempt in accordance with the provisions of this Act.

17. The Court of Appeal’s holding in Shimmers Plaza Limited v National Bank of Kenya Limited [2015] eKLRis also instrumental on the issue of contempt:

It is important however that the court satisfies itself beyond any shadow of a doubt that the person alleged to be in contempt committed the act complained of with full knowledge or notice of the existence of the order of the Court forbidding it. The threshold is quite high as it involves possible deprivation of a person’s liberty. (Emphasis supplied)

18. As stipulated in Halsbury’s Laws of England, Contempt of Court Volume 9(1):

The court will only punish as a contempt a breach of injunction if satisfied that the terms of the injunction are clear and unambiguous (R v City of London Magistrates’ Court, ex p Green [1997] 3 All ER 551), that the defendant has proper notice of the terms and that breach of the injunction has been proven beyond reasonable doubt (Churchman v Joint Shop Stewards Committee of Workers of the Port of London [1972] 3 All ER 603). (Emphasis supplied)

19. Therefore,for there to be contempt there must be knowledge of the judgment or order, including knowledge of all material terms, or the willful interruption of the proceedings of the court by insulting the members of the Tribunal as provided in Sections127 and 133 of EMCA 1999 or otherwise. There is need for knowledge on the part of the Alleged Contemnor before finding them in contempt.

20. In Kaplan & Stratton Advocates v The Chief Magistrates Court and another Miscellaneous Case 18 of 2016, the court stated the following with regards to contempt:

Contempt in the face of the court is that which happens in the vicinity of the court (often in the presence of the judicial officer) but extends to misconduct which is intimately connected with the proceedings of Court. This extension is necessary because some conduct, though not in the vicinity of the court, can be so directly connected to the proceedings of the court that it has to be treated as though it happened in the face of the judicial officer. An example is where a newspaper publishes an article that maliciously and inaccurately ridicules a judge in regard to the court proceedings. Such affront can be disrespectful as hurling insults to the Judicial officer to his/her face in the course of proceedings.

21. The comments by the Alleged Contemnor were on matters of general public importance and did not touch on the proceedings of the Tribunal or besmirch the standing of the Tribunal or its ability to render a proper determination on the matters before it. There is nothing on the record that shows that the Alleged Contemnor herein had knowledge of these proceedings. The words as published on the Alleged Contemnor’s social media were neither calculated at interfering with the proceedings of the Tribunal nor did they insult any member of the Tribunal.

22. The Appellants’ application for contempt is hereby dismissed with no order as to costs.

DATED & DELIVERED at NAIROBI this 1st day of March 2021

MOHAMMED S BALALA............................................CHAIRMAN

CHRISTINE KIPSANG......................................................MEMBER

BAHATI MWAMUYE.........................................................MEMBER

WAITHAKA NGARUIYA...................................................MEMBER

KARIUKI MUIGUA.............................................................MEMBER