Nyongesa Christopher Makhanu v Nzoia Sugar Co. Ltd Staff Retirement Benefit Scheme, County Government Of Bungoma & West Engineering (K). Ltd [2014] KEHC 5734 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

LAND AND ENVIRONMENT  CASE NO. 240 OF 2013

NYONGESA CHRISTOPHER MAKHANU .................................. PLAINTIFF

VERSUS

NZOIA SUGAR CO. LTD STAFF RETIREMENT BENEFIT SCHEME........ 1ST DEFENDANT

COUNTY GOVERNMENT OF BUNGOMA............................... 2ND DEFENDANT

WEST ENGINEERING (K). LTD........................................... 3RD DEFENDANT

RULING

The 1st Defendant has raised a preliminary objection  to the Plaintiff's application and suit.  The gist of the objection is that this court lacks jurisdiction to  entertain this suit.  The objection is supported by Counsel for the 3rd defendant. The  1st  Defendant urged the court  to  strike out the Plaintiff's suit.

The 1st Defendant  through Mr. Nyamu submits the Plaintiff's claim is about  his professional integrity and does not touch on issues of environment, occupation or user of the land  which this court has no jurisdiction to hear.

In the plaint filed in court on 3rd September 2013, the Plaintiff seeks for prayers outlined in paragraph 9 thereof, “The Plaintiff's prayers against the Defendants jointly and severally is for an order of permanent injunction restraining the Defendants, their agents, servants howsoever called from:

I).  Proceeding with constructing the  Residential flats on L.R.    No. E. Bukusu/Kanduyi/15270 without the supervision of the plaintiff.

ii). An order restricting the 2nd Defendant from issuing compliance certificate and certificate of occupation in    respect of the residential flats.”

Mr. Situma for the 3rd Defendant submitted  this suit has been presented to the wrong forum.  That this court does not have jurisdiction  as provided under Article 162 (2) of the Constitution and Section 13 of the Environment and Land Court Act. That this matter does not  fall under land as provided under Article 260 of the Constitution and  the suit should be struck out.

The Applicant/Plaintiff opposed the objection. He submitted that the Environment and Land  Act was not  complied with as provided under the Physical Planning Act.  That this court has jurisdiction to entertain this matter. He submitted there was no evidence  environmental conditions had been fulfilled.

Mr. Nyamu replied that the Plaintiff's  submission is made  outside  the pleadings. Being sued for negligence if the building collapses is not a matter within this courts jurisdiction.

I have considered the submission for and against the objection vis a vi the pleadings filed.  The Plaintiff at paragraph 7 avers that on the 1st Defendant's instructions, he prepared a development plan which complied with the statutory obligations.

At paragraph 8 of the plaint, he pleaded  the  Defendants  disregarded the  standard procedure and commenced work without  the Plaintiff's input but citing him as an architect in charge.  The  unsupervised work poses real  danger to the safety of the public at  large and exposes  the Plaintiff to  questions as regards professional negligence and standards.

My understanding of the claim  in  reading the plaint is  other than protecting his professional interest, the  Plaintiff is concerned with the dangers  the  public  would suffer.  This is protected under Section 3 of the Environment Management & Cordination Act which entitles everyone to a clean and healthy environment. Under Sec. 3 of Environment Management & Cordination Act, anyone can file suit and this court would be the appropriate forum to channel it to .

The Statutory obligations referred to in  paragraph 6 and 7 of  the      plaint includes the provisions of the physical planning Act.  The       Plaintiff was therefore not making his submissions  outside his      pleadings.

Finally the prayers sought  is to bar “construction of the      residential flats on L.R. No. E. Bukusu/S. Kanduyi/15270. ”    Mr. Situma argues  this does not  relate to  user or occupation to land. If construction    of residential flats  on a parcel of land is  not    user  & occupation then my question – what  constitutes      occupation & user?

I do find the objection as lacking in merit and dismiss it  with costs      to the Plaintiff.

DATED, SIGNED and Delivered this  3rd day of March  2014

A. OMOLLO

JUDGE.