Lydia Kaguna Japeth, Lucy Adhiambo Nyalwanga & Hamdan Oqbal Bayusuf v Mbesa Investment Limited, County Government Of Mombasa & National Environment Management Authority (Nema) [2022] KEHC 2310 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT MOMBASA

ELC NO. PET. 16 OF 2020

LYDIA KAGUNA JAPETH.......................................................................1ST PETITIONER/APPLICANT

LUCY ADHIAMBO NYALWANGA........................................................2ND PETITIONER/APPLICANT

HAMDAN OQBAL BAYUSUF.................................................................3RD PETITIONER/APPLICANT

- VERSUS -

MBESA INVESTMENT LIMITED................................................................................1ST RESPONDENT

THE COUNTY GOVERNMENT OF MOMBASA......................................................2ND RESPONDENT

THE NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY (NEMA).....3RD RESPONDENT

RULING

I. THE PRELIMINARIES

1. What is before this Honorable Court for determination are issues emanating from four (4) different applications filed herein. These are:-

a) The Notice of Motion application dated 16th December, 2021 by the 1st Respondent;

b) The Notice of Motion application dated 16th December, 2021 by the proposed Interested Party – the Muslims for Human Rights  (MUHURI); and

c) The Notice of Motion Application dated 20th January, 2022 by the 1st, 2nd & 3rd Petitioners.

2. However, the fourth application is the Chamber Summons application dated 10th January, 2022 and filed on 11th January, 2022 by the 1st Respondent seeking leave to file their applications during the High Court vacation practice rules. This was already dealt with and hence stands spend as we speak.

From the very onset, it will be noted that, its only the Petitioner and the 1st Respondent who filed pleadings in the matter and of course lately the Proposed Intended Party, MUHURI as neither the 2nd nor the 3rd Respondents filed any documents at all. Although, the 2nd Respondent remotely participated in the matter by way of rendering support to the Petitioner, the 3rd Respondent never showed any interest in the matter at all.

Suffice it to say, the pith and substance of afore mentioned applications directly pertains to and/or connected to and in relation with the issuance of the Conservatory orders granted by this Honorable Court on 6th December, 2021. The orders issued were against the 1st Respondent from proceeding with the construction of the three (3) towers on all that properties Land known as Land Reference Number MN/1/5503, Land Registration No. MN/1/5504 and Land Reference No. MN/1/3412. The contestation is on having a stay, setting aside, review and/or varying of the said orders by this Court whatsoever.

3. As a brief background, the 1st, 2nd and 3rd Petitioners/Applicants filed the main Petition on 9th July, 2020 and the Amended Petition dated 13th July, 2020.  At the same time, they filed a Notice of Motion application dated 9th July, 2020 brought to court under the provisions of Articles 70 and 162 of the Constitution of Kenya, Section 3 of the Environment and Management and Coordination Act 1999, Section 13 (2) (a) and 7 (a) of the Environment and Land Court Act 2011, and Rules 13, 19, 23 (1) and (2) and 24 of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and procedure Rules, 2013). Through the afore stated application the 1st 2nd and 3rd Petitioners/Applicants sought for the following orders:-

(a) Pending the hearing and determination of the Petition filed herewith there be is hereby issued a Conservation Order to restrain the 1st Respondent whether by itself, its Director Shareholders, Contractor, agents, assigns, employees and servants and/or whomsoever is acting under its authorities or instructions from proceeding with the construction of 3 towers known as Towers A, B, and C comprising of 126 units, swimming pools underground water tanks, sea wall and associated facilitates and amenities on properties Land Reference Number MN/1/5503, Land Registration No. MN/1/5504 and Land Reference No. MN/1/3412.

(b) Costs of this application be provided for.

4. Subsequently, the 1st, 2nd, 3rd and 4th Respondents filed their replies to both the Petition and the application. Arising from this Honorable Court directed that the matter be canvassed by way of written Submissions which all the parties complied according. On 6th December, 2021, this Honorable Court delivered its ruling granting the 1st, 2nd and 3rd Petitioners/Applicants the prayers as sought.

5. It is on the basis of this ruling that both the 1st Respondent and MUHURI, the Proposed Interested Party having been adversely aggrieved by the said orders, on the 16th December, 2021  decided to move Court for the specific orders which includes in summary staying the execution, setting aside and /or reviewing the said decision of 2nd December, 2021. Additionally, thereafter, the Petitioners also moved court seeking to commit the 1st Respondent to Civil Jail for allegedly being in Contempt of Court for disobedience of  this court orders. That is basically the gist of the matter herein.

The 1st Respondent’s Application dated 16th December, 2021.

6. The Notice of Motion application by the 1st Respondent is dated 16th December, 2021 and filed on 17th December, 2021. It was brought to court under the provisions of Order 45 Rules 1 & 2 of the Civil procedure Rules, 2010, Sections 1, 13 (7) and 19 of the Environment & land Court Act and all the enabling provisions of the law.  It seeks for the following orders:-

a) Spend;

b) This Honorable Court be pleased to order a Stay of the execution of the Ruling and the Consequential Orders delivered on 6th December, 2021 pending the hearing and determination of the application “inter partes”.

c) This Honorable Court be pleased to review and/or Set aside its Ruling and the Consequential Orders delivered on 6th  December, 2021

d) Costs of this application be provided for.

7. The Application by the 1st Respondent herein is based on the grounds, averments and the testimony founded under the 17 paragraphed Supporting Affidavit of HUSSEIN SHARRIF ALWY sworn and dated 16th December, 2022 and an annexture marked as “HAS – 1(a) and 1 (b) annexed thereon.

He deposed to be the Managing Director of Mbesa Investment Limited – the 1st Respondent and indicated they need to have the orders of this court granted in favour of the Petitioner on 6th December, 2021 be set aside, as they were aggrieved by it.  He indicated that there was an error apparent on the face of the record.

8. He indicated relying on the advise by his Advocates on record that this e Honorable Court ceded its jurisdiction to the National Environment Tribunal (N.E.T.) and erred by keeping the Petition in abeyance pending the N.E.T. decision since it would be exercising an appellate jurisdiction over the N.E.T. matter.  As such, he averred that the could be exercising both appellate and original jurisdiction in the same matter thus exercising conflicting jurisdiction.

He opined that the court under Paragraph 17 of the Ruling correctly captured the 1st Respondent’s position of a pending matter being High Court Mombasa Constitutional Petition No. 43/2020 Mbesa Investment Limited – Versus- The County Government of Mombasa and Others whereby the court in that matter had on 3rd July, 2020 granted the 1st Respondent herein interim conservatory order allowing it to proceed on with Construction works on the suit properties.  He held that the interim conservatory orders in HCCC(Mombasa) Constitution Petition No. 43/2020 were confirmed vide a ruling delivered on 14th April, 2021 which he annexed here an marked as HAS-1(a) and 1(b).

9. He held that this Honorable Court in granting the Conservatory Orders in favour of the Petitioner herein erred in failing to appreciate and consider the effect of a valid and existing court order in the above High Court Constitution Petition.  According to the Deponent by this Honorable Court granting the conservatory orders in favour of the Petitioner herein.  It effectively set aside the existing order of a competent court with equal status.

He held that the 1st Respondent was now conflicted on which order to follow as one order in HCCC (Mombasa) No. 43/2020 allowed the 1st respondent to carry on with the Construction works while order issued herein restraining the 1st Respondent from carrying on the construction work on the suit properties.

As such there was a danger in having two conflicting orders emanating from the courts of equal status which would lead to embarrassment of the Judicial process and the public losing faith in the process.

He argued that the honorable Court erred in failing to consider the prejudice created to the 1st Respondent/Applicant by delaying in the construction works vis-à-vis the financial loss suffered.

For these reasons he urged court in the interest of justice and fairness to allow the application and the prayers as sought.

The Replying Affidavit by the Petitioners to the Notice of Motion Application by the 1st Respondent dated 16th December, 2021

10. On 21st January, 2022, while opposing the Notice of Motion

application dated 16th December, 2021 by the 1st  Respondent the 1st, 2nd and 3rd Petitioners herein filed an 18 Paragraphed Replying Affidavit dated 20th January, 2022 sworn by HAMDAN IQBAL BAYUSUF – the 3rd Petitioner herein with authority of the other Petitioners.

The Deponent deposed being aware that the 1st Respondent herein had filed the said application as it was aggrieved by this Court’s orders of 6th December, 2021 by seeking to have the orders stayed, reviewed, set aside or varied. He stated that and based on the advise given to him by his Advocates on record, it was trite law that a party who was aggrieved by Court’s ruling or order could not go back to the same court but only sought to set aside of the impugned ruling by appropriately preferring an appeal in the Court of Appeal. Besides, he further stated based on their Advocates advise that the application failed to meet the threshold for a review as the same was disguised appeal against the subject matter.

11. The Deponent deposed that the issues raised as being error of the Honorable Court never amounted to errors apparent on the face of the record but were potent grounds for appeal. He emphasized the fact that whether the Court erred in ceding jurisdiction to the  National Environment Tribunal (NET) while keeping the Petition in abeyance was not an error apparent on the face of the record but a ground to be challenged at the Court of appeal being an appeal issue. He insisted that the 1st Respondent should have preferred an appeal at the Court of Appeal instead. In any case, the referral of the matter to NET had been made by this Court earlier on 19th October, 2020 and to which none of the parties herein had appealed against and the same still remained intact. Therefore, the ruling of 6th December, 2021 could not be set aside on this basis.

12. Besides, he deposed that the decision to cede the Jurisdiction to NET was only limited to the legality of the Environment Impact Assessment and the issuance of the Environment Licence by NEMA while retaining all the issues. As regards the High Court matter and the orders issued, he held that the same were only interim in nature as the Court never pronounced itself with finality on the validity of the Enforcement Notice or even the legality of the subject matter of Construction on the suit land. He stressed that the dispute was still pending in the High Court. He argued that a decision on interim basis could never bind this Court of equal status and did not give rise to any conflict at all.

He contended that there was no conflict between the Court Orders from the two Courts – the High Court and this Court as one simply stayed the implementation of the Enforcement Notice directed at the 2nd Respondent while this Court restrained the 1st Respondent from proceeding with the construction and hence both could be simultaneously be complied with.

13. He stated that indeed the 1st Respondent had willfully and deliberately disobeyed the Court order  and it was common knowledge and trite law that for a party who was seeking the exercise of the Court’s discretion ought to first of all show deference to the Court. For these reasons they urged court to dismiss the application with Costs to them.

The proposed Interested Party – the Muslims for Human Rights Initiative (MUHURI)’s Application

On the 16th December, 2021, the Proposed/Intended Interested Party filed the Notice of Motion application dated 16th December, 2021 and filed on 16th December, 2021. It was brought to court under the provisions of Articles 3, 10, 20, 21, 22, 24, 25, 48, 50 and 159 of the Constitution of Kenya, 2010, Rules 3 (2), 3 (4), 3 (8) and 7 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and Order 45 Rules 1 & 2 of the Civil procedure Rules, 2010 ., Sections 1, 13 (7) and 19 of the Environment & land Court Act and all the enabling provisions of the law.  It seeks for the following orders:-

a) Spend

b) That the Honorable Court be pleased to Stay the execution and/or implementation of the Conservatory Orders issued on 6th December, 2021 pending the hearing and determination of this application “inter partes”.

c) That the Honorable Court be pleased to Stay the execution and/or implementation of the Conservatory Orders issued on 6th December, 2021.

d) That the Honorable Court be pleased to review and vary the decision made on 2nd December, 2021

e) Costs of this application be provided for.

14. The said application is based on the grounds, averments and testimony premised on the 14 Paragraphed Supporting Affidavit of FRANCIS AUMA sworn and dated 16th December, 2021.  He deponed that he was the Program Officer and Head of Rapid Response Team at the Muslim for Human Rights (MUHURI) the proposed interested Party.

He held that there were over 200 workers engaged to render manual and semi-skilled work at the construction works at the suit property.  They were adversely affected by the ruling of this court of 6th December, 2021 without according them an opportunity to be heard and the said was in conflicting with an order of High Court issued in Petition No. 43 of 2020 in favour of the workers.

15. He argued that there was an error apparent on the record in arriving at the ruling to the extent that the Honorable Court never took into account the efficiency of the already existing order of the High Court permitting the workers to continue providing labour at the site.  But as a result of the order the workers were now staring at a Judicial conflict where on one hand the same court granted them the order to continue construction another arm restrained them from providing labour.  He held that it was important the Honorable Court reviewed and varied its decision and accorded the workers an opportunity to make their representation before the Honorable Court.

16. Further, he held that the Court by it having referred the dispute to N.E.T. it could not restrain the Petition to be determined after the decision of the N.E.T. He stated that the court could only sit on such a matter as an appellate Court and not exercising its original jurisdiction.  In the instant case, the court would find its self sitting as an appeal court and at the same time a court of original jurisdiction.

17. He held the over 200 persons were directly employed within the construction site whose livelihoods and survival were threatened by the orders issued by court stopping any work from being done on the construction site – threatening their Socio - economic welfare of the workers who provided labour at the site.  They urged court to grant the prayers sought format he application.

Replying affidavit by the Petitioners to the Notice of Motion dated 16th December, 2021 by MUHURI

18. On 25th January, 2022, the 1st, 2nd & 3rd Petitioners while opposing the application by the Proposed Interested Party filed a 24 Paragraphed Replying Affidavit  dated 25. 1.2022 and sworn by HAMDAN IQBAL BAYUSUF the 3rd Petitioner herein.  He deposed from the very onset that MUHURI had no: “Locus Standi” to file the application and seek the orders remedies sought as they were not a party to this suit and had never been enjoined as a party neither had they sought for leave to be enjoined in this case.  Further it purported to act for the employees whose identities had not been disclosed – they were unknown person.  He held that this  Honorable Court has no jurisdiction to hear and determine the issues raised by MUHURI on whether the workers on site right to employment and labor have been infringed and violated.

19. Indeed, MUHURI was not a trade Union and hence not a recognized legal entity for purposes of advancing and agitating for the employment rights of workers nor to represent workers in court it was a busy body in this case.  It was being used to fight for the interest of the 1st Respondent as it had always been the trend for in the case of High Court – HCC No. 43/2020.  They were fighting rights of undisclosed workers as they would have to court much earlier it has not sought for leave to be enjoined as they were only preoccupied with the relief to vary, review and/or set aside the conservatory orders of the court of 6th December 2021.  They have not attached any annextures to support their application of representing workers it alleges to be representing.  Further, MUHRI has not pleaded how the alleged workers constitutional rights have been or likely to be breached.

20. He held that it was not true that the High Court order – HCCC No. 43/2020 allowed and/or permitted the 1st Respondent to continue with the construction and the workers to continue providing labour at the site.  MUHIRI has not established such an order because none exists.  The order which they have exhibited was one delivered by Justice Ogola on 14th April, 2021 only stayed the implementation of the Enforcement Notice dated 24th June, 2020 issued by the County Government of Mombasa pending the hearing and determination of the HCCC Petition No. 434 of 2020. Justice Ogola did not order that the workers to continue providing labour at the site neither did that court direct that 1st Respondent should continue with the construction.  He argued that an order stopping implementation of the Enforcement Notice was no an order that the workers to continue providing labour at the site.  The orders of this court were not adverse to the workers as alleged by MUHURI as the order was not directed at the workers but at the 1st Respondent.  The worker cannot insist on working on an Illegal Project.

21. The workers would seek for employment elsewhere.  He stressed that there was no conflicts of these two orders as one was on staying the implementation of the Enforcement Notice by the 2nd Respondent while the other was to stop the suit premises directed at the 1st Respondent.  The issue before this court was whether the 1st Respondent’s project was illegal and unconstitutional – it has nothing to do with the employment of workers. For these reasons therefore it prayed for the application to be dismissed with costs.

The 1st, 2nd and 3rd Petitioners’ Notice of Motion Application dated 20th January, 2022

22. 20th January, 2022, the 1st, 2nd and 3rd Petitioners herein, filed the Notice of Motion application dated filed on 21st January, 2022. It was brought to court under the provisions of Rule 3 of the  Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and procedure Rules, 2013, Sections 1A and 3A of the Civil Procedure Act, Cap. 21, Oder 40 Rules 3 (1) and (3) of the Civil Procedure Rules, 2010, Sections 13 and 14 of the Environment and Land Court Act 2011 and Article 159 (2) ( e ) of the Constitution of Kenya.

23. Through the afore stated notice of motion application,  the 1st 2nd and 3rd Petitioners/Applicants sought for the following orders:-

a) Spend

b) That HUSSEIN SHARRIFF ALWY who is the managing Director of the 1st Respondent herein be committed to Civil jail for six months for disobeying this Honorable Courts Order made on 2nd December, 2021.

c) That Costs of this application be paid by the 1st Respondent.

The said application is based on the testimony, averments and grounds based on the 12 Paragraphed Supporting Affidavit of HAMDAN IQBAL BAYUSUF and 5 annextures marked as “HIB 1 to 5” annexed hereto.  The 3rd Petitioner herein, held that he was aware that the Ruling of this court was delivered in the presence of the 1st Respondent’s Advocates, Mr. Mohamed and therefore the assumption was that the 1st Respondent in his capacity as the Managing Director of the 1st Respondent was aware of the said court order.  Further, not only were they aware of the court order but they had taken some steps by making and filing an application to set an application to set it aside vide an application dated 16th December, 2021.

24. He deponed that despite of being aware of the order the 1st Respondent had continued with the construction in blatant breach violation and disregard of the said order and he annexed were set of photographs showing that the construction was going on and videos to that effect.  They also attacked and certificate of the said electronic evidence.

He indicated that the 1st Respondent had willfully and blatantly disobeyed the court order which was a very serious offence and whose consequences bordered on criminality. He held that,  even if they were dissatisfied with the order it was not a good and/or justifiable reason to disobey a court order. They had to obey it until it was set aside, varied or discharged.  It was only prudent that the dignity of this court was upheld by committing the 1st Respondent was upheld by committing the 1st Respondent said managing Director to civil jail.

The 1st Respondent replies to the Notice of Motion application dated 20. 1.2022 by the 1st, 2nd & 3rd Petitioners.

25. The 1st Respondent on 25th January, 2022, in opposing this application by the Petitioners, filed a Replying Affidavit sworn by HUSSEIN SHARRIF ALWY dated 25th January, 2022 and filed on 27th January, 2022. He averred to be a law abiding citizen of the Republic of Kenya and who obeys court orders.  He acknowledged that on 6th December, 2021 court issued the conservatory orders.  He immediately informed the construction workers about it and who were very surprised.

26. He deposed there existed another court order from HCCC No. 43/2020 which was in favour of the 1st Respondent to continue construction works aft the said court recognized that the workers had a right to livelihood worth protecting and the stoppage of works would have adverse effects and result in risk of loss to livelihood of the site workers and thus allowed construction to proceed. He stated that while he was ready and willing to obey this court orders but held that the workers had threatened to  cite him for contempt of the Court Order from the HCCC No. 43 of 2020 should he make a move and stop construction works. Indeed the 3rd Petitioner was aware of this order but acting in a dishonest manner failed to disclose it to this court.

27. As a result, he indicated that he was caught up between a rock and a hard place failed with two existing and valid orders, conflicting in nature.  To avert the situation, he held they had moved this court through a Notice of Motion application dated 16th December, 2021 for the review of its orders of 6th December, 2021.

He had not willfully and/or deliberately disobeyed the court order and there was no bad faith at all as alleged.  He prayed for the application which he held was fatally defective, lacked merit and an abuse of the court process to commit him to civil jail disobeying the court order be dismissed with costs.

IV. THE SUBMISSIONS

28. On 6th October, 2021 when all the parties were present in court, direction were given on the three (4) applications being the Notice of Motion applications dated 16th December, 2021 by both the 1st Respondents and the Proposed Interested Party and the one dated 22nd January, 2022 by the Petitioners herein be disposed off by way or written submissions.  The Petitioners/Applicants and the 1st Respondents obliged accordingly by filing their written submissions. On……..each of the parties herein were accorded ample time to highlight to Court their written Submissions. As such, a ruling date was reserved for 10th February, 2022.

A. The 1st Respondent’s Written Submissions

29. On 27th January, 2022, the Advocates for the 1st Respondent the law firm of Messrs. Balala & Abed Advocates filed their written submissions dated 25th January, 2022.  They posed a few issues to be considered for determination. These were:-

a. Whether the 1st Respondent’s application dated 16th December, 2021 was competent before court and if they had made a case to be granted orders of review of the court order.

b. Whether the Petitioner’s application dated 20th January, 2022 was competent before this court and if Hussein Sharriff Alwy as the Managing Director of the 1st Respondent be committed to Civil Jail for six (6) months for disobeying the Court’s orders of 6th December, 2021.

30. While responding to the assertion raised by the 1st, 2nd and 3rd Petitioners to the effect that their Notice of Motion application of 16th December, 2021 was incompetent, as if they felt aggrieved by this courts orders of 6th December, 2021 they should not have come back here to have preferred an appeal before the Court of Appeal – seeking to set aside the impugned ruling.  They admitted that when a party was aggrieved by the orders of the court the first route to follow was to file an appeal at the Court of Appeal as captured by the Petitioners.  But still the law made other Provisions and that was by the way of a review – Under Constitution Petition the rule of the Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and procedure Rules 2013 (“The Mutunga Rules”) made Provisions for the review of a Conservatory Orders.

31. Additionally, the Learned Counsels argued that the Provisions of Section 80 of Civil Procedure Act,  Cap. 21 and Order 45 of the Civil Procedure Rules 2010 also provided legal means on doing so and which the 1st Respondent decided to follow.

They sought support from the Provisions of Section 19(2) of the Environment and Land Court Act No. 19 of 2011 which enjoins this court to be bound by the procedure laid down in by the Civil Procedure Act, Cap 21.  On this point they relied on the authorities of “Gabriel Otiende & 4 Others – Versus - County Commissioner – Siaya County and 2 Others, John Nyapola Okuku & 3 Others (Interested Parties) (2021) eKLR where the court was faced with a similar application for review and observed as follows:-

“On whether this court ought to review or set aside the Ruling delivered on 16. 12. 2020, the starting point is to examine the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules 2010.  It is common ground that the High Court has power to review its own decision.  However, such power must be exercised within the framework of Section 80 of the Civil Procedure Act and Order 45 Rule (1).

From the foregoing the Learned Counsel for the 1st Respondent submitted that its application was competent before the court both under Rule 25 of the Mutunga Rules and Order 45 of the Civil Procedure Rules.

32. The Learned Counsel further submitted that they had made a case to be granted review orders on grounds that there were material information not brought to the attention of court by the Petitioner at the time of applying for Conservatory orders, That was error apparent on the face of the record and there existed other sufficient reasons to warrant a review and setting aside of the conservatory orders.

Having granted the orders on 6th December, 2021 this court retained a residual power to set aside those orders of its own motion if it deemed fit or on an application of a party as in this case.

33. The Petitioners failed to disclose all the material facts to court – the legal effect of existing two court orders emanating from the HCCC (Mombasa) No. 43 of 2020 of 14th April, 2021 and this ELC of 19th November, 2020.  They never notified court that had been overtaken by events when courts rendered their decision.

Further they held there was an error apparent on the face of the record. They relied on the case of “Alicaranda Wathitha Gatu –Versus - Zipporah Wangechi Muturi & 2 others (2021) eKLRThe error was the orders issued by this Court on 6th December, 2021 contradicted building guidelines provided by the Court of Appeal and the Supreme Court in Benson Ambuti Adega & 2 Others –Versus - Kibos Distillers Ltd. & 5 Others (2020) eKLR that where a party has filed a multifaceted suit at the ELC and the Law has reserved powers in another body, in this case National Environmental Tribunal, the right approach would be for the ELC to reserve the Constitutional issues and sty proceedings pending the outcome of that other legal body without making any other orders – called “Judicial Absention” also known as “the Pullman doctrine” having been deliberated first by the US Supreme Court in “Railroad Commission of Texas – Versus - Pullman Company 312, US 496 61 Ct 643, 85 Led 971 (1941)” where it allows federal courts to decline to hear cases concerning federal issues the case could also be resolved with reference to a state based legal principle.

In the instant case, they contended that this should have stopped having any further deliberations on the matter the moment it realized the same was before NET. According to the Learned Counsels, the Second error is as elaborately explained herein above. It was the existence of the two conflicting court orders.

34. On whether the 1st Respondent should be committed to civil jail, they argued the Petitioners failed to demonstrate and prove on a standard higher than the balance of probabilities that he had knowledge of the order and that there was willful and deliberate disobedience of the said order.  They admitted he had knowledge of the court order but despite if there was disobedience of the court order of 6. 12. 2021 if any, was willful and deliberate.  He was confronted with so many court orders and did not know which one to follow.  To support their case they relied on the authority of “Sheila Cassett Issenberg & Another – Versus- Antony Machathal Kinyanjui (2021) eKLR”

35. In conclusion,  the Learned Counsels prayed for the application of 16th December, 2021 to be allowed with costs and to dismiss the one for 20th January, 2022 by the Petitioner with costs

C.  The 1st, 2nd & 3rd Petitioners/Applicants Submissions

36. On 27th January, 2021, the Law Firm of Messrs. Oluga & Company Advocates for the 1st, 2nd and 3rd Petitioners filed their written submissions dated 27th January, 2022.  opposing the 1st Respondent’s Notice of Motion application dated 16th December, 2021 and the Notice of Motion Application dated 16th December, 2021 by the proposed intended interested party (MUHURI) and while supporting their application to cite the 1st Respondent for being in contempt of the courts orders issued on 6th December, 2021.

According to the Learned Counsels the issues that emerge from the filed applications by parties and ought to be determined in their view are (a) Whether the Honorable Court should review, vary and/or set aside its ruling of 6th December, 2021 and the consequential orders and (b) Whether Hussein Sharrif Alwy, the Managing Director of the 1st Respondent should be committed to Civil jail for six months for disobeying this courts order.

They submitted that this court is clothed with the independent jurisdiction to stop the construction even if the High Court in this case HCCC Petition No. 43 of 2020 were to make a finding that the Enforcement Notice was illegal and allow the construction to go on.  They held that the High Court – Justice Ogolla of ruling as follows:-

19) ….”This Court has been made aware that there are indeed related matter in the ELC and in the National Environment Tribunal.  It is the finding of this court that those matter aforesaid forums (sic) can go on and can be determined on their merits without affecting this courts constitutional jurisdiction to determine the validity or otherwise of the Enforcement Notice dated 24. 6.2020 so that if, for instance, this court declares invalid the said Enforcement Notice and allows the construction to go on, the said construction may still be stopped if either of the aforesaid.  Tribunal or the ELC establishes that certain procedures, the substance of the matters before them, were not adhered to, thereby negating the entire process.”

37. Therefore they argued that the contentions by the 1st Respondent and MUHURI to the effect that this Court could not stop the construction arising from the High Court’s ruling was baseless.

On application by MUHURI they argued that the orders sought by them were couched could not be granted on the grounds that MUHURI had specified the period upon which the sty of execution was being sought it has not specified the limitation of time.  Further, they also failed to specify how they wanted the court to review, and vary its ruling – as review and variation was difference from setting aside which affects the whole ruling and requires a court to alter its ruling in a particular way.

38. Additionally, the Learned Counsel submitted that MUHURI had no locus standi – as it was not a party to this case to be seeking any orders from this court – this being a constitutional petition, the applicable provisions for review of Court order would have been the Provisions of Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and procedure Rules 2013 (The Mutunga Rules), which envisages a motion being made by “a party” and in this case MUHURI is not a party to the suit and therefore could not seek orders for the review, setting aside or varying a court order.  MUHURI never sought leave to be enjoined in the matter.  To buttress their point they cited the case of “Mohamed Suleiman Shee & Another –Versus - Suleiman Omari Chala & 2 Others (2018) eKLR & Zepher Holding Limited – Versus - Mimosa Plantation Limited and Jeremiah Matagaro & Another, Nairobi HC. Misc. Civil App. No 248 of 2012.

39. They further argued that MUHURI was a busy body and without good intentions.  It was being used to champion the rights and interests of the 1st respondent and for this assertion the elaborately displayed several instances where this had happened including in the case of HCC Constitutional Petitions No. 43 of 2020.

The Learned Counsel contention was that the orders sought by both MUHURI and the 1st Respondent were not merited on three (3) broad grounds.

(a) The orders sought by MUHURI for stay could not be granted in perpetuity.  It could only be granted pending certain actions such as appeal or hearing of an application.

(b) The Order by Justice Ogola was not a new issue.  The 1st Respondent while opposing the Petitioners applications for conservatory order had raised it and disclosed its existence of the said order.  Hence the court was made aware of the said order and therefore it could not be seen to be accusing the Petitioner for having conceded the existence of the said HCCC No. 43 of 2000’s court order of 14th April, 2021 and the issue of Court order could not be cited as a reason for the review – it could not amount to an error on the face of the record.  Since the existence of the order was brought to the attention of court and court granted conservation order any person who felt that the court was wrong could only lodge an appeal to the Court of Appeal.

(c) Both MUHURI and 1st Respondent have presented a false argument that the orders made by this court was at variance and/or in conflict with the orders made by HCCC No. 43 of 2021.  They stated that the orders by High Court were on the stay of the enforcement and implementation of the Enforcement Notice issued by the County Government of Mombasa on 24th June, 202 to stop development of Plot Nos. MN/1/3412, MN/1/5503 and MN/1/5504.  They opined that there was nowhere the said order allowed the 1st Respondent to proceed on with the construction or the workers to continue providing labour at the site as alleged by MUHURI and the 1st Respondent.  They argued the only issue before High Court was the validity or lack of the Enforcement Notice. They submitted that this was a court of equal status as the High Court.  This court’s jurisdiction is not tied down or fettered by any finding of the High Court and it was at liberty to make its own independent finding.

The Court’s order restrained the 1st Respondent from continuing with the construction pending the determination of this Petition.  The two orders were capable of being complied with without any conflict whatsoever.  They were directed at two different persons/entities.

(d) On the issue of there being an error apparent on the face of records, they submitted that was guided by the guidelines provided by the court of Appeal and Supreme Court in the case of “Benson Ambuti Adega & 2 Others – Versus - Kibos Distillers Ltd. & 5 Others (2020)eKLR  There was nowhere the courts stated while referring the matter to NET was prohibited from granting any conservatory order. Conservatory orders are provided for in Article 23(3) (c) of the Constitution of Kenya and this court can issue the same as it refers the dispute to NET for partial determination on the issue of E.I.A. Licence.  The argument raised by MUHURI and the 1st Respondent were not basis for review but grounds for appeal and for this court to agree with them would amount to the court sitting on appeal of its own decision.

40. Regarding the issue on whether Hussein Sharrif Alwy should be committed to Civil Jail or not for disobeying this Court’s order based on the prayers sought by the petitioners in their Notice of Motion Application dated 20th January, 2022 they referred to the averments made under Paragraph 8 and 9 of his affidavit as an indication that construction has been going on based on the order of High Court. They submitted that this explained was appealing as the two orders were distinguishable and held he had disobeyed Court orders and ought to be punished according as there was no valid excuse as the High Court was not directed at him but the 2nd Respondent.

41. Further they argued that the citing of Order  40 Rule 3 of the Civil Procedure Rules, 2010 was permissible as the use of the Civil Procedure Rules was allowed in Constitutional Petition and any case they sought refuge under Article 159 of Constitution of Kenya.

In conclusion, they urged court to dismiss the two applications dated 16th December, 2021 with costs and allow the Notice of Motion application by the 1st, 2nd and 3rd Petitioners dated 20th January, 2022.

IV. ANALYSIS AND DETERMINATION

42. I have considered all the pleadings, the well - articulated submissions and the relevant provisions of law by the Advocates for the 1st, 2nd and 3rd Petitioners/Applicants and the 1st Respondent with regards to the Conservatory orders sought in the Notice of Motion application dated 19th July 2020 pending the hearing and determination of the main Petition.

In order to arrive at an informed and fair decision hereof I have framed the following four (4) salient issues:-

(a) Whether the Conservatory orders of this delivered on 6th December, 2021 to the application 1st 2nd and 3rd Petitioners/Applicants and against the 1st, 2nd, 3rd and 4th Respondent herein should be stayed, reviewed, set aside and/or  varied pending the hearing and determination of the main Petition?

(b) Whether the 1st Respondent, the Proposed Intended Party and the 1st, 2nd and 3rd Petitioners/Applicants were entitled to the reliefs sought from the said Applications.

(c) Whether Hussein Sharriff Alwy as the Managing Director of the 1st Respondent should be committed to Civil Jail for six (6) months for disobeying this Court’s orders delivered on 6th December, 2021.

(d) Who bears the costs of these applications.

ISSUE No. a).Whether the Conservatory orders of this delivered on 6th December, 2021 to the application 1st 2nd and 3rd Petitioners/Applicants and against the 1st, 2nd, 3rd and 4th Respondent herein should be stayed, reviewed, set aside and/or  varied pending the hearing and determination of the main Petition?

Brief facts.

43. Briefly, it is not in despite that the 1st, 2nd and 3rd Petitioners/Applicants are the legal owners to some parcels of land which are directly adjacent to the three parcels of land known as Land Registration Nos. MN/I/5503, MN/I/5504 and MN/I/3412 respectively registered in the names of the 1st Respondent.  From the Pleadings the 1st and 3rd Petitioner live on a flat next there while the 2nd Petitioner is a businessman who runs and operates a hotel and restaurant from the vicinity.

In the year 2015, the 1st Respondent commenced construction of a three (3) towers known as Tower A, B, and C comprising 126 units, swimming pools underground what tanks, sea wall and assorted facilities and amenities on to the above 3 properties.  This Construction did not sit well with the 1st, 2nd and 3rd Petitioners/Applicants for failure to adhere with the required Constitution of Kenya requirements on clean and healthy environment, approvals and licenses from NEMA; Physical Planning and change of user from a law density to much high density residential area which prompted them to file a Petition and an application seeking for the appropriate orders to stop the commencing of the construction as the project. They alleged that the project had caused them substantial loss and suffering which may lead to fatal consequences.  They further argued that the orders sought would not prejudice the 1st Respondent  in any way as the Construction had not yet commenced.

44. On the other hand, the Respondents stressed having fully complied with all the Environment, Physical Planning and Building requirements as they had all the approvals and consents.  They pleaded on having adhered with all the procedures and requirements for  buildings.  They urged court to dismiss the application and the filed Petition as they had incurred a lot of substantial financial resources and that there was the issue of E.A. Licenses still pending at NET. It is from these consideration that on 6th December, 2021 that this Honorable Court granted the Conservatory Orders in order to preserve the suit properties pending the hearing and final determination of the main Petition instituted by the 1st, 2nd and 3rd Petitioners herein.

45. The instant two Notice of Motion applications by the 1st Respondent and the Proposed Intended Party Petitioner are  brought under the afore mentioned provisions of the law.

Under the provision of Rule 25 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (What is now terms as “The Mutunga Rules”) provides as follows:

“Setting Aside, Varying or Discharge – An Order issued under Rule 22 may be discharged, varied or set aside by the Court either on its own motion or an application by a party dissatisfied with the order”

It means this court has discretionary powers to discharge, vary or set aside its own orders either on its own motion (“Suo Moto”) or on an application by a party. In that case the 1st Respondent were within their right to have moved court under the filed application dated 16th December, 2021 seeking the orders above stated.

Further, this Honorable Court finds it significant to critically examine the provisions for review, setting aside and/or varying court orders. These are found mainly under the provisions of Section 80 of the Civil Procedure Act, Cap. 21 and Order 45 (1) & (2) of the Civil Procedure Rules, 2010. A clear reading of these provisions indicates that Section 80 is on the power to do so while Order 45 sets out the rules on doing it.

Section 80 provides:- any person who considers himself aggrieved:-

a) By a Decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or

b) By a decree or order from which no appeal is allowed by this Act, may apply for a review of Judgement to Court which passed the decree or made the Order and the Court may make such order thereto.

Order 45 (1). States as follows:- Any person considering himself aggrieved:-

a) By a Decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or

b) By a decree or order from which no appeal is allowed by this Act, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of Judgement to the Court which passed the decree or made the order without unreasonable delay”.

46. From the stated provisions, it is quite clear that they are discretionary in nature. Thus, the unfettered discretion must be exercised judiciously, not capriciously and reasonably. To qualify for being granted the orders for review, varying and/or setting aside a Court order under the above provisions to be fulfilled, the following ingredients, jurisdiction and scope are required.

a) There should be a person who considers himself aggrieved by a Decree or order;

b) The Decree or Order from which an appeal is allowed but from which no appeal has been preferred;

c) A decree or order from which no appeal is allowed by this Act;

d) There is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made; or

e) On account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree or order.

f) The review is by the Court which passed the decree or made the order without unreasonable delay.

47. The power of review is available only when there is an error apparent on the face of the record. Indeed, this Court emphasizes that a review is not an appeal. The review must be confined to error apparent on the face of the record and re – appraisal of the entire evidence or how the Judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is permissible.

Discussing the scope of the review, the Supreme Court of India in the case of “Ajit Kumar Rath – Versus – State of Orisa, 9 Supreme Court Cases 596 at Page 608. had this to say:-

“The power can be exercised on application of a person on the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier; that is to say the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason”…..means a reason sufficiently analogous to those specified in the rule…”

48. In the case of “Nyamongo & Nyamongo – Versus – Kogo” (2001) EA 170 discussing what constitutes an error on the face of the record, the Court rendered itself as follows:-

“An error apparent on the face of the record cannot be defined or exhaustively, there being an element of definitiveness inherent in its very nature and it must be determined judicially on facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong is certainly no ground for review though it may be one for appeal…..”

49. Additionally, in his authoritative write up,Sir. Dinashah Fardunji Mulla in “Code of Civil Procedure”18th Edition (a writing on Order 47 Rule 1 of the Civil Procedure Code of India), (the equivalent of our Order 45 Rule 1), states that “..the expression “any other sufficient reason” ….means a reason sufficiently analogous to those specified in the rule.

Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out….would amount to an abuse of the liberty given to the tribunal under the Act to review its Judgement.

Further, there is another very useful guidance in the matter of “Tokesi Mambili and Others – Simion Litsanga (19) where the court held as follows:-

In order to obtain a review an applicant has to show to the satisfaction of the Court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient  reason (Emphasis is Mine).

50.  Applying the above principles to the instant application, this Courts makes a holding being fully satisfied that in indeed there were an error apparent on the face of the record while delivering the ruling and order of 6th December, 2021 on two folds:-

a) Ceding of the Courts Jurisdiction:-

Firstly, indeed this court ceded its jurisdiction by referring the matter to the National Tribunal and keeping the Petition in abeyance in so doing it would be exercising its appellate jurisdiction over NET this Court’s jurisdiction on matters of environmental matters are well spelt out in law. It is not in doubt that Under the provisions of Article 162 (2) (b) of the Constitution of Kenya and Sections 4 and 13 of the Environment and Land Court Act, No. 9 of 2011 this Court has the mandate to hear and determine any matter related to the environment and land, including constitutional Petitions such as the case in the instant case.

51. On the other, the National Environment Tribunal (NET) is established by the provision of Section 125 (1) of the Environmental Management and Co – ordination Act, (EMCA) and its jurisdiction is set out in Section 129 of the said Act. Apparently, the provision of  Section 129 of EMCA, deals wholesomely on matters of Environment Licence. It provides inter alia that any person who is aggrieved by the grant of a licence or permit or refusal to grant a licence or permit or transfer of a licence or permit or the imposition of any condition, limitation or restriction on a license or revocation, suspension or variation of a licence under the Act or regulations made thereunder, may within sixty (60) days after the occurrence of the event against which that person is dissatisfied, appeal to NET.  The Tribunal may confirm, set aside or vary the order or decision in question. The Tribunal may also issue orders maintaining the status quo of the matter or activity which is the subject of appeal before it until the appeal is determined. Appeals on the decisions of the Tribunal lie to this Court under the provisions of Section 130 of the EMCA.

52. The Court has however, noted that the Court of Appeal and the Supreme Court have since made findings on jurisdiction on Petitions which are multifaceted and have issues some of which could be determined by the Court while the others can be determined by the Tribunal. In the case of “Benson Ambuti Adege & 2 Others – Versus – Kibos Distillers Limited & 5 Others (2020) eKLR, the Supreme Court of Kenya in a decision which was delivered on 4th August, 2020 stated as follows:-

“It would therefore seem that the superior court, determined, quite incorrectly, that it had power or jurisdiction to hear and determine the Petition, which although raised issues that were within its purview, were also intertwined with other issues which were rather obviously not within its jurisdiction, and which could have been effectively determined by another legislatively established tribunal, in this instance two bodies, the National Environmental Tribunal and the national Environmental Compliance Committee.

The trial court, as did the appellate court correctly determined that the Petition was multifaceted, and presented issues in an omnibus manner. The point of divergence between the two superior courts were the trial court then went further to determine that these multifaceted issues could be determined by the court “in the interest of Justice”. It would seem that the ELC had failed to appreciate that there had  were mandated to hear and determine the issues, but instead chose to arrogate to itself the jurisdiction to hear and determine all the issues raised in the Petition………”

The Supreme Court proceeded on to sate that:

“…the more favorable relief that the Superior Court should have issued was to reserve the Constitutional issues on the rights to clean and healthy environment, pending the determination of the of the issue with regard to the issuance of the EIA Licence by the 4th Respondent to the 1st, 2nd and 3rd Respondents. The Court should have reserved the issues pending the outcome of the decisions of the Tribunal, thereby affording any aggrieved party the opportunity  to appeal to the Court. It would then have determined the reserved issues, alongside any of appealed matter, if all, thus ensuring the parties right to a fair hearing under Article 50 of the Constitution was protected”

53. All said and done, with profound respect and humility, this Court admits and fully agrees with the assertions by the 1st Respondent and to some extend the Proposed Interested Party, that there was an apparent error on the face of the record, in its Orders of 6th December, 2021 while attempting to be in consonance with its orders of 19th October, 2020, it mis – directed itself and caused the stay of the proceedings of the main Petition awaiting the outcome of NET on the above limited issue of EIA and Licence.  Therefore, that error apparent on the face of the record should be corrected through review and staying of those orders forthwith.  Thence, the orders sought by the 1st  Respondent be and hereby allowed for the reasons advanced herein above.

Be that as it may, in light of the above decision by the Supreme Court which binds this court, it holds that while this Court has jurisdiction to hear and determine matters on clean and healthy environment, the issue pertaining to and/or in connection with the EIA Licence ought to be reserved and be determined by the NET.

Definitely, while fully concurring with the correct position taken by the 1st, 2nd and 3rd Petitioners this Court in its decision on 6th December, 2021 never made any reference of the matter to NET. Instead, it only made a close follow up to a decision by this Court on 19th October, 2020 to the effect that the dispute touching on the legality of the EIA licence to the NET but retained the rest of the issues for determination by this Court alongside any other matter that may be appealed, if at all. Furthermore, nothing stops this court from making an order of demolition of the suit property in the long run.

54. Guided by the Jurisprudence discussed above, this Court is satisfied that the 1st Respondent and the Proposed Intended Interested Party have cited the sufficient reasons apparent which qualify for the grounds prescribed under the provisions of Order 45 Rule1 of the Civil Procedure Rules, 2010. In conclusion, I find this to be a proper case of for the Court to exercise its discretion in favour of the 1st Respondent. Accordingly, the said application succeeds.

b) The existence of the Court Order in HCCC. No. 43 of 2020.

55. Secondly, although this court in its ruling made a few references but just in jest and passing to the existence of the HCCC (Mombasa) Petition No. 434 of 2020 and an order delivered by Justice Ogola on 14th April, 2021, unfortunately the court never fully appreciated and none of the parties herein drew its attention to the exact nature, scope and import indepth of the said court. It is only during the submissions by the Counsels that the court came to realize that the said order was on the validity of the Enforcement Notice issued by the County Government of Mombasa dated 24th June, 2020.

56. It is important to note that, although there may be conflicting of court orders of equal status likely to cause embarrassment of judicial process and public losing confidence and faith in the process, the high Court only and strictly dealt with the efficacy and legality and thus stayed the implementation of the Enforcement Notice issued by the County Government of Mombasa pending the hearing and determination of the Petition. Although, Justice Ogola may never have expressly touched on the issue of the constructions nor the workers at the site, but impliedly the membrane is very thin on the implication of the said orders and may call for further thorough interpretation by this and that Court thereof. Nonetheless, what is of profound importance here there was an error in the face of the record.

ISSUE No. c). Whether the 1st Respondent, the Proposed Intended Party and the 1st, 2nd and 3rd Petitioners/Applicants were entitled to the reliefs sought from the said Applications.

57. Under this Sub – heading, the main issue would be whether the Honorable Court is satisfied that the Notice of Motion applications by both the 1st Respondent and the Proposed Intended Party dated 16th December, 2021 have merit and hence they ought to be granted the orders of Stay of the Conservatory Orders pending the hearing and final determination of the main Petition. Additionally, whether the Proposed Interested party should be joined  in this matter arising from the breach, violation and denial of their social economic rights to work and earn a living as enshrined under Article 43 of the Constitution of Kenya from the stoppage of the Construction works on site as envisaged by the Conservatory Orders. Finally, whether the 1st Respondent should be committed to civil jail for being in willful and deliberate disobedience of the court orders of 6th December, 2021.

58. With regard to the Notice of Application dated 16th December, 2021 by the Proposed Interested Party making a representation of the workers providing employment and labour at the Construction site of the 1st Respondent’s project. They are in the protection of the said workers on their social and economic fundamental rights under the provision of Article 43 of the Constitution of Kenya from being violated, breached and threatened by the Conservatory Orders of this court issued on the 6th December, 2021. They have held that they depend on the livelihood from the site. They argued that there exists conflicting court orders from two courts whereby“…..the workers were now staring at a judicial imbroglio in that on one hand they have an order of the High Court authorizing them to continue with work on the site, on the other hand there was an order from the ELC restraining them from providing labour…”

59. They urged that the workers need to be accorded representation in the Petition. In as much as this court completely concur with the Proposed Interested party on the right to be heard and the pertinent sufficient interests and particularly based on the Mutunga Rules, this being a court of procedure and law, the Interested Party ought to strictly adhere with the laid down procedure. All said and done, they ought and should seek for leave of court to be joined in the Petition. In so doing under the provision of Article 22 (1) of the Constitution of Kenya should demonstrate sufficient interest of the parties and/or persons they intend to represent, disclose their full  identity and specifically the fundamental rights they are likely and/or being denied, infringed, threatened and violated in this matter.

60. Clearly, this is lacking from the pleadings instituted by the Proposed Interested Party. This Court takes cognizance that this is matter of great public interest thereof. For these reasons, their application for the interest of Justice, Conscience and equity the said application only pre – conditionally partially succeed.

ISSUE No. d). Whether Hussein Sharriff Alwy as the Managing Director of the 1st Respondent should be committed to Civil Jail for six (6)months for disobeying this Court’s orders delivered on 6th December,2021.

61. The Notice of Motion application by the 1st, 2nd and 3rd Petitioners herein is dated 20th January, 2022 and filed in court on 21st January, 2022. It is brought to court under the provisions of Rule 3 of the  Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and procedure Rules, 2013, Sections 1A and 3A of the Civil Procedure Act, Cap. 21, Oder 40 Rules 3 (1) and (3) of the Civil Procedure Rules, 2010, Sections 13 and 14 of the Environment and Land Court Act 2011 and Article 159 (2) ( e ) of the Constitution of Kenya.

62. Through the aforestated notice of motion application the 1st 2nd and 3rd Petitioners/Applicants have sought to have HUSSEIN SHARRIFF ALWY who is the managing Director f the 1st Respondent herein be committed to Civil jail for six months for disobeying this Honorable Courts Order made on 2nd December, 2021. The Honorable Court has decided to look into the concept of the Contempt of court in details. It is that conduct or action that defies or disrespects authority of court.  Black Law Dictionary 9th Edition defines it as:-

“The act or state of despising the conduct of being despised conduct that defies the authority or dignity of a court or legislature.  Because such conduct interferes with administration of Justice”

63. Properly put, contempt is the conduct that impairs the fair and efficient administration of justice. From the very onset, this Court takes cognizance to the fact that the Contempt of Court Act, No. 46 of 2016 was declared constitutionally invalid and nullified in 2018 for lack of public participation as required under Articles 10 and 118 (b) of the Constitution and for encroaching on the independence of the Judiciary as founded in the case of “Kenya Human Rights Commission – Versus - Attorney General & Another (2018) eKLR. In the given circumstances, this court is compelled to revert to the provision of the law that operated before the emanated of the Contempt of Court Act – the Judicature Act and the Supreme Court Rules of England.

64. Under the provisions of  Section 5 of the Judicature Act, Cap. 8 of the Laws of Kenya confers jurisdiction on the superior courts to punish for contempt provides thus:-

“The High Court of Appeal shall have the same powers to punish for contempt of court as is for the time being possessed by the High Court of England and that power shall extend to upholding the authorities and dignity of sub - ordinate courts.

Additionally, under Section 27 of the Environment and Land Court Act Provides that:-

“Any person who refuses, fails or neglects to obey an order or direction of the court given under this Act, commits an offence and shall on conviction be liable to a fine not exceeding twenty Million Shillings (Kshs. 20,000,000/=) to imprisonment for a term not exceeding two years or to both.  In the case of Charity Mpano Ntiyine – Versus - China Communication Constructions Company Limited & National Environment and Management Authority (2017) eKLR. Court

held that there are three elements that must be proved in contempt proceedings. These are:-

a.  Applicant must demonstrate terms of orders

b. Applicant must demonstrate knowledge of terms by the Respondents and

c. Applicant must demonstrate failure of Respondent to comply with the court order.

65. Under Order 40 Rule 3 of Civil Procedure Code provides that cases of disobedience or of breach of any terms of a temporary injunction the court granting that injunction may order the property of the person guilty of such disobedience or breach to be attached and may also order such person to be detained in prison for a term of not exceeding six (6) months unless the court directs his release. The reason why courts punish for contempt is to uphold the dignity and authority of the court, ensure compliance with directions of the court observance and respect of due process of law, preserve an effective and impartial system of justice and maintain public confidence with administration of justice by court.  Without sanctions of contempt there would be a serious threat to the rule of law and administration of justice for a party to be cited for contempt he must have violated and/or disobeyed an order that was directed at him.

66. From the above, the fundamental issue at hand is whether  the 1st, 2nd and 3rd Petitioners/Applicant has demonstrated the fulfilment of the infringement, breach and/or refusal to obey the terms of the order of this Honorable Court. It is quite clear that the Petitioners/Applicants extracted and attached a copy of the said orders issued by this court on 6th December, 2021.  The Petitioners/Applicants have insisted that all the Respondents and in particular the 1st Respondent were aware of the orders and therefore it’s the respect, dignity, decorum and integrity of the Court that is at stake here. While this is trite law and I fully concur with the Petitioners/Applicants …….Whether the 1st Respondent has willfully disobeyed court orders and should be cited for contempt of the court orders of 6th December, 2021 and whether he should be purged before being heard.

67. Nonetheless,  the Petitioners/Applicants must demonstrate failure of the 1st Respondent to comply by the court order.  Under this Sub – heading, outrightly, the Honorable Court has been compelled to rely on the decision of:- “Christine Wangari Gachege –Versus - Elizabeth Wanjiku Evans & 11 Others Civil No. 3 of 2013and In the Gatharia Mutitika – Versus - Baharini Farm Limited Civil Appeal No. 24 of 1985where it was held inter alia:-

“A contempt of court is an offence of Criminal Character a man may be sent to prison.  The standard of Proof in contempt proceedings must be higher than proof on a balance of probabilities almost but not exactly beyond reasonable doubt.  The quilt of a Contemptor has to be proved with strictness of proof as it is consisted with the gravity of charge”.

68. In a matter of placing more emphasis onto the expected legal ingredients of Contempt of court, this Court has further relied on the decision of“Sheila Cassatt Issenberg & another – Versus -  Antony Machatha Kinyanjui [2021] eKLR,the court held that:-

“………in cases of Contempt the guilt has to be proved with such strictness of proof as is consistent with the gravity of the charge… Recourse ought not to be had to process of contempt of court in aid of a civil remedy where there is any other method of doing justice.  The jurisdiction of committing for contempt being practically arbitrary and unlimited, should be most jealously and carefully watched and exercised with the greatest reluctance and the greatest anxiety on the party of the judge to see whether there is no other mode which is not open to the objection of arbitrariness and which can be brought to bear upon the subject… applying the test that the standard of proof should be consistent with the gravity of the alleged contempt… it is competent for the court where contempt is alleged to or has been committed, and or an application to commit, to take the lenient course of granting an injunction instead of making an order for committal or sequestration, whether the offender is a party to the proceedings or not”.

69. It is trite law that the contempt of court is such a serious offence which borders on criminality and the consequences are extremely serious.  In this case, this court holds that the Petitioners/Applicants in its application cited and invoked the provision of under Order 40 Rule 3 of the Civil Procedure Rules, 2010 has failed to demonstrate that the 1st Respondent should be cited for contempt for disobeying court orders. I say so for the following reasons. Firstly, the Honorable Court refers to the averments made by the 1st Respondent under Paragraphs 8 and 9 to wit:-

8.  “THAT whereas I am willing to obey this Honorable Court’s Orders issued on 2nd December, 2021, the construction workers have threatened to cite me for contempt of court in Petition Number 43 of 2020 should I make a move and stop construction works on the suit properties.

9. “THAT I am thus faced with two existing and valid court orders, conflicting in nature and caught between a rock and a hard place so to speak.”

Indeed, he had the knowledge of these court orders but was never in breach of their disobedience. If anything, it was not willful nor deliberate. Clearly, this explanation and interpretation by the 1st Respondent is very valid as indeed there existed two court orders. The confusion on which one to follow is bound to have occurred.

70. Secondly, the orders sought from the afore stated application by the Petitioners/Applicants under the provision of Order 40 (3) of the Civil procedure Rules, 2010 does not specify which particular aspect of the order by this court the 1st Respondent has breached or disobeyed under the provision of Order 40 Rule 3 of the Civil Procedure Rules, 2010.  The Honorable court holds on the position that the orders sought may not be attainable as yet at this interlocutory stage.  It is imperative that the matter is heard first and foremost where all the fundamental evidence is adduced, tested, analyzed and finally determined before the issuance of such drastic and draconian direction which may be contrary to the fundamental rights to private property under Article 40 (1) & (2) of the Constitution of Kenya and public order and interest thereof. Besides, even as Courts punish for contempt to safeguard the peaceful and development of society and the rule of law, it must be borne in mind that the power to punish for contempt is discretionary one and should be used sparingly.  Here I fully concur with the authority cited by the 1st Respondent’s Learned Counsel of “Carey – Versus – Laiken” which held:-

“that if courts were to find contempt too easily, a courts’ outrage might be treated as just so much bluster that might ultimately cheapen the role and authority of very judicial power it seeks to protect. The Court’s contempt power should be used cautiously and with great restraint. It is an enforcement power of the last resort rather that first resort”.

Furthermore, for whatever is worth, there would have been need to institute a notice to show cause against the 1st Respondent first and foremost prior to filing of this application.  For all these reasons,  I decline and instead defer this particular prayer and/or order until after the actual main hearing.

ISSUE No. d).  Whether the Proposed Interested Party was properly  enjoined in this matter.

71. Under this sub heading I fully concur with the Petitioners that MUHURI has no “Locus Standi” to file the application and seek the orders remedies sought. In saying so, the contended and correctly so that MUHURI were not a party to this suit and had never been enjoined as a party neither had they sought for leave to be enjoined in this case.  There is need to have the identities of the employees being represented to be disclosed as they were unknown persons.

72. Further, it would be critical for MUHURI to plead by providing specific particulars on how the alleged workers constitutional rights have been or likely to be breached, threatened or violated. I need say no more.

For these few reasons therefore the application partially allowed. They need to regularize their position.

V. DETERMINATION

73. In view of the foregoing and for avoidance of any doubt these are the orders of this court with very stringent timelines as follows:-

a) THAT there be a review and stay of execution of the Conservatory order granted on 6th December, 2021 restraining the 1st Respondent whether by itself, its Directors, Shareholders, Contractors, agents, assigns, employee and servants and/or whosoever is acting under the authority or instruction from proceedings with the construction of 3 towers known as Towers A, B, and Comprising of 126 units, swimming pools underground water tanks, sea wall and associated facilitates and amenities on properties Land Registration MN/1/5503, Land Registration No. MN/1/5504 and Land Registration No. MN/1/3412 pending the hearing and determination of the Petition.

b) THAT there be review and stay of orders of this Honorable Court granted on 6th December, 2021 to the effect that pursuant to and in consonance to the decision by this Court on 19th November, 2020 in the meantime, there be stay of hearing and determination of the of filed Petition by the 1st, 2nd, & 3rd Petitioners herein awaiting the final outcome of the National Environment Tribunal – in Net Appeal No. 30 of 2020 - Mbesa Investment Limited, on the legality of the EIA license over the subject matter hereof in order to allow the smooth hearing of the main Petition.

c) THAT the Orders of this Honorable Court issued on the 19th October, 2020 based on the provisions of Section 129 (1) of EMCA, referring the dispute pending before the National Environment Tribunal – in Net Appeal No. 30 of 2020 - Mbesa Investment Limited, on the legality of the EIA license over the subject matter hereof still subsists and should take place ON OR BEFORE THE 31ST MARCH, 2022.

d) THATfor the sake of expediency of this matter, natural Justice, Equity and Conscience there be a hearing and determination of the filed Petition by the 1st, 2nd and 3rd Petitioners hereof within the next Ninety (90) days from this ruling date.

e) THAT the Notice of Motion application dated 16th December, 2021 by the Proposed Intended Interested Party be and are hereby pre – conditionally allowed to the extend that they should formally seek leave to be enjoined in this suit as the 1st Interested Party within the next Seven (7) days leave failure to which the said application shall stand dismissed forthwith.

f) THAT the 1st, 2nd and 3rd Petitioners and the 1st, 2nd, 3rd and 4th Respondents are granted 7 days to file any further affidavits based on the issues raised by the 1st Interested Party herein.

g) THAT the Petition shall be heard by both viva voce evidence and reliance on the pleadings written submissions.

h) THAT the Notice of Motion dated 22nd January, 2022 by the 1st, 2nd and 3rd Petitioners is found to be unmeritorious and hence is and hereby dismissed with no orders to costs.

i) THAT the matter be mentioned on 31st March, 2022 to ascertain progress and further directions of the matter.

j) THAT each party to bear its own costs.

IT IS SO ORDERED ACCORDINGLY.

RulingDelivered, Datedand Signedin Open Court This10thDay ofFebruary  , 2022.

HON. JUSTICE L.L. NAIKUNI (JUDGE)

(ELC- MOMBASA)

In the presence of:-

M/s. Yumna – the Court Assistant

Mr. Oluga Advocate for the 1st, 2nd & 3rd Petitioners

Mr. Mohammed & Mr. Balala Advocates for the 1st Respondent.

Mr. Tajbhai Advocate for the 2nd Respondent.

Non Appearance for the 3rd Respondent.

Mr. Willis Otieno Advocate for the 1st Interested Party.