Ogutu Makodiango & Executive Director Centre for Social Welfare Justice & Governance - NGO (K)) v Governor County Government of Trans-Nzoia, MCA Keiyo Ward, Chief Officer Lands Department County Government of Trans-Nzoia, Chief Officer Environment Department County Government of Trans-Nzoia, Chief Officer Roads Department County Government of Trans-Nzoia, Chief Officer Finance Department County Government of Trans-Nzoia, Chief Officer Legal department County Government of Trans-Nzoia, Chief Officer Education County Government of Trans-Nzoia, Chief Officer Produrement County Government of Trans-Nzoia & Chief Officer Works Department County Government of Trans-Nzoia [2017] KEELC 3469 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

MISC.CIVIL APPLICATION NO. 1 OF 2017

IN THE MATTER OF ENFORCEMENT OF THE BILL OF RIGHTS UNDER ARTICLE 2291) AND (3) (C) OF THE CONTITUTION OF KENY, 2010 AND OTHER ENABLING LAWS AND RULES

AND

IN THE OF APPLICATION FOR COURT FEES WAIVER FOR FILING CASE AGAINST THE COUNTY GOVERNMENT OF TRANS-NZOIA AS A FORMA PAUPER TO THE DEPUTY REGISTRAR

(MODE OF PROCEEDINGS: MULTI-TRACK)

BETWEEN

OGUTU MAKODIANGO

THE EXECUTIVE DIRECTOR

CENTRE FOR SOCIAL WELFARE

JUSTICE & GOVERNANCE - NGO (K)) …………….APPLICANTS

VERSUS

THE GOVERNOR

COUNTY GOVERNMENT OF TRANS-NZOIA..1ST RESPONDENT

THE MCA KEIYO WARD……………………......2ND RESPONDENT

THE CHIEF OFFICER LANDS DEPARTMENT

COUNTY GOVERNMENT OF TRANS-NZOIA…..3RDRESPONDENT

THE CHIEF OFFICER ENVIRONMENT DEPARTMENT

COUNTY GOVERNMENT OF TRANS-NZOIA....4TH RESPONDENT

THE CHIEF OFFICER ROADS DEPARTMENT

COUNTY GOVERNMENT OF TRANS-NZOIA....5TH RESPONDENT

THE CHIEF OFFICER FINANCE DEPARTMENT

COUNTY GOVERNMENT OF TRANS-NZOIA......6TH RESPONDENT

THE CHIEF OFFICER LEGALDEPARTMENT

COUNTY GOVERNMENT OF TRANS-NZOIA…...7TH RESPONDENT

THE CHIEF OFFICER EDUCATION

COUNTY GOVERNMENT OF TRANS-NZOIA…..8TH RESPONDENT

THE CHIEF OFFICER PRODUREMENT

COUNTY GOVERNMENT OF TRANS-NZOIA…..9TH RESPONDENT

THE CHIEF OFFICER WORKS DEPARTMENT

COUNTY GOVERNMENT OF TRANS-NZOIA....10TH RESPONDENT

R U L I N G

This application dated 31/1/2017 in this matter seeks that court fees be waived in respect of an intended suit. The suit is proposed to be brought by the Centre for Social Welfare, Justice and Governance - NGO (K) under Article 22(1) and 3(c) of the Constitution.

The applicant is one Ogutu Makodiango, the Executive Director, as he refers to himself, of the Centre for Social Welfare, Justice and Governance - NGO (K).

His claim is that the County Government of Trans-Nzoia, acting through the MCA Keiyo Ward is in violation of the Constitution by breaching public utility utilization standing orders.  It is alleged that there is “grabbing” and excavation of murram meant for the Keiyo Ward Roads Project from a public land specified for E.C.D. use, known as Kilima SFT Scheme Plot No. 58 in Kapkoi Sub-location without any involvement of public participation. The applicant states that the application is made in good faith and in the best interests of members of public in Keiyo Ward.  He alleges that there is ongoing environmental degradation occasioned by the activities of the County Government of Trans-Nzoia on Kilima SFT Scheme Plot No. 58.

However the issue in the current application is whether the applicant deserves to have court fees to be waived in his favour to enable him bring the proceedings that he intends to commence against the defendants.

Article 22(1) of the Constitution provides that every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or is infringed or is threatened.  Article 22(2) provides for the institution of proceedings by any other person on behalf of another person who cannot act in their own name, or who is a member of or acting in the interests of a group or class of persons or in the public interest, or an association acting in the interest of one or more of its members.

Article 22(3) provides for the making of Rules providing for the court proceedings envisaged by Article 22.  These Rules, according to Article 22 (c) satisfy the criteria that, among others,

“(c) no fee may be charged for commencing the proceedings;”

The applicant has cited numerous provisions of the Constitution of Kenya 2010 Acts of Parliament and Civil Procedure Rules.  With regard to the provisions of the Government Proceedings Act and the Income Tax Act stated, I must state that I do not find them relevant to the application.  However Order 33 of the Civil Procedure Rules is relevant in so far as it issues guidance on application for a party to be allowed to sue or defend a suit as a pauper.

I also find that application under Order 33 should be heard by the Deputy Registrar. This is confirmed by Order 49 Rule 7(1) (X1).  Order 49 (2) provides that the decision of the Registrar issued pursuant  to an application made under Order 49 Rule (7) (1) may be appealed against, and that appeal shall be  before the Judge in Chambers.  The application dated 31/1/2017 is therefore improperly before this court.  I hereby dismiss the application with no orders as to costs.

Dated, signed and delivered at Kitale in open court on this16thday of February, 2017.

M. NJOROGE

JUDGE

In the presence of:

Mr. Ogutu Makodiango - applicant

Court Assistant - Isabellah.

M. NJOROGE

JUDGE

16/2/2017