Paradise Safari Park Limited v Attorney General & Sinohydro Corporation Limited [2015] KEHC 523 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  4  OF 2011

PARADISE SAFARI PARK LIMITED………………….PLAINTIFF

VERSUS

THE ATTORNEY GENERAL ………………….1ST DEFENDANT

SINOHYDRO CORPORATION LIMITED……2ND DEFENDANT

RULING

By a notice of motion dated  13th January, 2015 the plaintiff  Safari Park  Limited seeks  from this court  orders for  full discovery  of documents  under Section  22 of the Civil Procedure  Act against  the 1st defendant Attorney General and the 2nd defendant  SinoHydro Corporation  Ltd.  The  documents subject matter  of the application  are as  described  in paragraphs a, b and c of  the application  which  are  alleged to be in the possession  or custody of the defendants  and which are:

All design  documents for the construction of the Thika Super Highway  relevant to  the construction of the carriage way in  the vicinity of the plaintiff’s property;

The hydraulic and hydrological design basis  and computations for sizing of the diversion culvert  as constructed and the  final culvert for the  carriage way as  constructed –comprising   the catchment  delineation , the measure catchment  characteristics, the flood run off computation  methodology, calculations and computed  results; all  for the different flood  recurrence  intervals  adopted; and  the  consequent  hydraulic computation methodology and computed  design hydraulic discharge  capacity  for the diversion culvert  and the final culvert, including  data  on the culvert inlet  and outfall  hydraulic characteristics, and whether the structures were designed  on an  inlet  control basis, or an outlet  control basis;  Specifically documents  relating to tasks 157,163 and 164 on page 387 and task 224  on page 388 of the 1st defendant’s bundle  of documents, and all  reports  referred to in paragraph 5. 2.1 A ( c)  and (d) on page  362 of the  1st defendant’s bundle of documents .

The complete contractor’s computation basis for sizing of the diversion culverts, clearly annoted, as  specified  in the letter  from Hamilton Harrison and Mathews to  the first  defendant  and Waweru Gatonye  & Company advocates dated  10th  March, 2014.

2. Costs of the application.

The  application is predicated on the grounds  that the documents  stipulated  had been identified from the documents already filed by  the 1st and 2nd defendants  and  these further  documents are necessary for the proper  preparation of the case for  hearing.

The application was further based on the supporting affidavit sworn by Esther Gathoni Kariuki.

In her  supporting affidavit, the deponent  deposes that the suit  herein arose  out of the  flooding of the Safari  Park Hotel on  Thika Road, which is  owned and operated by the plaintiff,  on the night  of   9th January 2010.  The  plaintiff claims that the flooding  was  caused by the diversion of the  River Kigwa during the  construction of the Thika  Super Highway by the Ministry of Roads  and Public Works  of the Government of Kenya  and  the 2nd defendant.  Further  that the plaintiff has in light of the defenses  filed by the defendants, sought  advice  of Dr. Sean Avery, a Registered Consultant   Engineer specializing  in hydrology  and Water Resources; which has necessitated for   the plaintiff to ask  the defendants for disclosure  of additional documentation but the  had defendants  declined  to respond.  That Dr. Avery  has  advised that those documents  are necessary  and are  relevant  to the matters  in issue  and for the proper  preparation of this case  for hearing.

The various correspondences exchanged between the parties advocates were all annexed to the affidavit.

From the description  of the documents  of the parties  that  the plaintiff seeks  full discovery  from the defendants  to facilitate  proper  hearing of this case, and the  detailed pleadings filed by the plaintiff  and the  defendants  as well as  their  respective  lists  and bundles  of documents filed by all the  parties  on record.  I have   no doubt in my mind that the claim herein by the plaintiff against the defendants and hence, the dispute, relates to environment and use of land.

The matter of construction of a road and excavating through diversions from the river thereby causing floods   into the plaintiff’s premises causing extensive damage and destruction to buildings   and or nuisance is a matter affecting the environment, occupation and the use of land.

Therefore, before the court determines whether or not the plaintiff is entitled to damages in the sum of shs 89,548,932 claimed, it must first determine issues relating to environment, occupation and the use of land. It is for that reason that documentation detailed in the Notice of Motion are sought to facilitate proper preparation of the hearing of this suit.  It will also require expert witnesses to testify and more specifically, experts in hydrology and hydraulics.

That being the case, this court finds that it lacks the necessary jurisdiction to make any orders that will affect the rights and interests of the parties to this dispute.  Jurisdiction of this court is conferred by the law and moreso, the Constitution- Article 165 of the Constitution of Kenya, 2010, and neither can the court arrogate itself jurisdiction which it is expressly dispossessed of by the Constitution. In RE MATTER OF IIEC [2011] e KLR,it was held  the motor vessel‘Lilian S’ v Caltex  Oil (K) Ltd [1989] KLR 1 case establishes that  jurisdiction flows from the law  and  the recipient –court  is to apply  the same, with any limitations embodied  therein.  Such  that a court  may not  arrogate itself jurisdiction through  the craft  of interpretation, or by way of endeavors to discern  or interpret  intentions of parliament, where  the  wording of legislation is clear  and there is  no ambiguity.   In the case of the Supreme Court, Court of Appeal and High Court, their respective jurisdiction is donated by the Constitution.

And in the  Locus  Classicus  case of Motor  Vessel  ‘ Lilian S’ v Caltex Oil (K) Ltd, Justice Nyarangi of the Court of Appeal held:

“ I think  that it is  reasonably plain  that a question  of jurisdiction ought to   be raised  at the earliest  opportunity  and the court sized  of the matter is then obliged to decide  the issue right  away on the material before it.

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 holds the opinion that it is without jurisdiction.

The Environment and Land Court is a Superior Court with the same status as the High Court.   It is established under Section 4 of the Environment and Land Court Act, 2011 in accordance with the dictates of the provisions of Article 162(2) (b) and 3 of the Constitution.  That is  the  court that is conferred  with the powers, functions and  jurisdiction to hear and  determine  disputes  relating to Environment and   Land ( see Section 13(1)  of the Act).  In addition, the court has the power   under Section 13(1) of the Act to make orders including damages, declaratory orders, specific performance, judicial review, compensation among others.

Furthermore, the provisions of Article 165(5) (b) of the Constitution expressly ousts the jurisdiction of the High Court  from hearing  and determining   disputes  that fall within  the jurisdiction of the Environment   and  Land Court.

It therefore follows that having opined that  this court  lacks jurisdiction to hear and  determine  this dispute, to hold otherwise          or to make  one more  step would be anathemic to the Constitution and  would  abridge  the rights of parties to access to justice.   It would also run counter to the principles    espoused in Article 159(2) of the Constitution.

I however note that this suit was instituted in this court during the transitional period in the new constitutional dispensation and order.  As at January 2011, the Constitution was barely 5 months   into its promulgation, an no legislation including the Environment an land Court Act to implement the said provisions of Article 162(2)(b) of the Constitution had been enacted  pursuant to   sub Article 3 thereof.

It is for  that reason that,  in order to  avoid any lacuna  in  the law, which would have bred chaos, the  transitional and consequential  provisions  of the Constitution  Part  5 Section 22 on administration of justice providers that all proceedings  pending before  court  or tribunal on the effective  date would continue  to be heard  and  determined  by the court /tribunal pending  the Establishment  of the corresponding  court/tribunal or as may be directed by the Chief Justice  on the Registrar  of the High Court.

The Environment and Land Court Act was enacted in 2011, anchoring at Section 4, the Environment and Land Court and judges to that court were appointed later in that year and the court became fully operational in 2012.  That being the case, the filling of this suit in this court was not by mistake and neither is the existence of this suit in the High Court fatal.

This court has  the power  to ‘transfer’ or place  this suit into the  right  locale  and that is  the  Environment and  Land Court now that  court is fully operationalised thereby  ousting  not only the  transitional provisions  of the Constitution, but also the jurisdiction of this court    ( Article  165(5) (b)  of the Constitution.

It is  for  those reasons that I decline to make  and determination on the application herein  and direct  that this matter be  and is hereby  and forthwith  placed before the  presiding  judge  of the Environment  and  Land Court for further  directions as to  its hearing  and disposal as appropriate.

Dated, signed and delivered at Nairobi this 3rd day of November 2015

R.E. ABURILI

JUDGE