Otieno v Safaricom Investment Co-operative Society Limited & another; National Environment Management Authority (Interested Party) [2023] KEELC 22044 (KLR)

Otieno v Safaricom Investment Co-operative Society Limited & another; National Environment Management Authority (Interested Party) (Environment & Land Petition E015 of 2022) [2023] KEELC 22044 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEELC 22044 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Petition E015 of 2022

EK Wabwoto, J

November 30, 2023

Between

Jacob Ochieng Otieno

Petitioner

and

Safaricom Investment Co-operative Society Limited

1st Respondent

The County Government of Kisumu

2nd Respondent

and

The National Environment Management Authority

Interested Party

Ruling

1. This ruling is in respect to the 1st Respondent’s Application dated 20th March 2023. The Notice of Motion sought the following orders: -i.This Honourable Court be pleased to transfer the entire Petition herein dated 22nd December 2022 and all the proceedings thereto to Kisumu Environment and Land Court for further directions/hearing and disposal.ii.The costs of the application be provided for.

2. The Application was accompanied by a supporting affidavit sworn by Agnes Angao Bukachi and was made on the following grounds:i.The suit land subject of this petition, is a parcel of land situated in Kisumu County.ii.The supporting affidavit to the Notice of Motion and the application indicates that the Petitioner is a resident of Kisumu Countyiii.The 2nd Respondent, under who’s the function of physical planning falls, and therefore issued the requisite approvals to the 1st Respondent, is the office of Physical Planning, Kisumu Countyiv.The alleged violations of the Constitution occurred or shall occur in Kisumu County and as such, only the Kisumu ELC Court has the territorial jurisdiction to hear and determine the Petition.v.There is therefore no reason why the Petitioner did not file the Petition before the proper Court which us the Kisumu ELC Court.vi.There is no prejudice that would be occasioned to the Petitioner if this Petition is transferred to Kisumu ELC Court.

3. In the 1st Respondent’s supporting affidavit dated 20th March 2023, it was reiterated that the cause of action arose in Kisumu County after which the Petitioner sought to contest the decision of the County government of Kisumu approval to sub-divide the suit property. It was also averred that since the Petitioner had indicated that they were residents of Kisumu County and the suit property was located within Kisumu, there was no justification why the Petition was not filed at Kisumu. It was submitted that the Court should align to the provisions under Rule 8 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practise and Procedure Rules 2013.

4. The application was opposed by the Petitioner’s replying affidavit dated 26th April 2023 sworn by Jacob Ochieng Otieno. It was argued that the Court did have jurisdiction under Article 162(2) (b) and Section 4 and 13 of the Environment and Land Act. The Petitioner further argued that the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013, were subordinate to the Constitution and as such the Court was not bound by the discretionary powers under Rule 8 of the Rules. Moreover, the Court now conducted hearings and court sessions virtually, therefore, it would not prejudice the 1st Respondent in any way.

5. Having perused the rival affidavits and supporting documents, it is evident that the issues for determination before this Court are;i.Whether the Court has jurisdiction to hear and determine the Petition?ii.Who should bear costs of the application?

6. It is a well- established principle that jurisdiction is the life force of any suit. This is echoed in the land mark case of Owners of Motor Vessel “Lillians” vs Caltex Oil Kenya Ltd (1989) KLR where it was held;“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it, the moment it held the opinion that it is without jurisdiction.”

7. This Court is primarily guided by the provisions of Article 162 (2) (b), as read with Articles 165 (5) (b) of the Constitution, 2010, and Section 13 of Environment and Land Court Act No. 19 of 2011 which confers unlimited original and appellate jurisdiction in disputes relating to “the environment and the use and occupation of, and title to land.”

8. The Court is further guided by the provisions under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practise and Procedure Rules 2013. Rule 8 provides that:“(1)Every case shall be instituted in the High Court within whose jurisdiction the alleged violation took place.(2)Despite sub rule (1), the High Court may order that a petition be transferred to another court of competent jurisdiction either on its own motion or on the application of a party.”

9. In my interpretation of the Rules, the onus to ensure proper filing is upon a Petitioner’s and if the said action is deemed to be erroneous, the Court is at liberty to step in or grant leave for either party to correct its error. In this instance, the 1st Respondent seeks to correct the supposed error vide its application to transfer the suit to Kisumu Environment and Land Court.

10. This Court has further considered the Gazette Notice No.5178 dated 25th July 2014 where under Note 14:“14. All new cases relating to the environment and the use and occupation of, and title to land not falling under paragraph 8 above, shall be filed in the nearest Environment and Land Court for hearing and determination by the said court and must be within the purview of the jurisdiction conferred upon the Environment and Land Court with particular regard to the jurisdictional limitation set under Article 262 (2)(b) of the Constitution and Section 13 of the Environment and Land Court Act No.19 of 2011. ”

11. In the Bench Book on Environment and Land matters, the issue of transfer of cases has been addressed as follows:“Where a matter is wrongly filed at the ELC Registry the matter shall be directed to be filed or transferred to the appropriate court registry in accordance to the Practice Directions Relating to the filing of suits, Applications and References in proper court (Paragraph 2 Practice Directions on Proceedings in the Environment and Land Courts, and on proceedings relating to the Environment and the use and occupation of, and title to Land and proceedings in other courts.”

12. Further in the case of Chrispinus Munyane Papa & Another v National Environment Management Authority & another [2018] eKLR, where in nearly similar circumstances, the court opined that:“…The Practice and Procedure Rules 2013 are subordinate to the Constitution, they do not limit the Court’s jurisdiction to deal with the issues raised in the Petition but provide guidance on where matters should be filed for the Court’s good governance and operations…”

13. In Omar Dhadho v Mohamed Masoud & another [2019] eKLR and Victor Mati Njeru v Victor Miriti Muguongo [2021] eKLR, Yano. J. considered whether to allow transfer of a suit from one ELC station to another. I align myself with his finding that decision whether or not to order transfer depends largely on the facts and the circumstances of a particular case. With regards to the issue of territorial jurisdiction, the Court must ensure resources are utilized prudently and that justice is dispensed in an expeditious and timely manner.

14. Having considered the undeniable facts that fortify a territorial tether and the fact that the suit property is located within Kisumu County, Secondly, the parties to the suit are residents and/or carrying out activities in Kisumu. Lastly, in the forecast of the final determination of the main petition, the prayers sought would be effected in Kisumu County, this court arrives at the inevitable conclusion that the Petition ought to be transferred.

15. Consequently, this Court makes the following disposal orders: -a.The Petition is hereby transferred to the Environment and Land Court in Kisumu for further directions, hearing and its disposal.b.That pending further directions by the Environment and Land Court in Kisumu, the existing interim orders issued on 28th April 2022 shall remain in force.c.Costs will abide final determination of the Petition.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30THNOVEMBER 2023. E. K. WABWOTOJUDGE