Republic v Minister for Transport & Communication & 5 others ex parte Waa Ship Garbage Collector & 15 others [2004] KEHC 12 (KLR)

IN THE HIGH COURT OF KENYA AT MOMBASA

Miscellaneous Civil Application 617 of 2003

Republic vMinister for Transport & Communication & 5 others ex parteWaa Ship

Garbage Collector & 15 others

High Court, at Mombasa June 11, 2004

Maraga Ag J

Miscellaneous Civil Application No 617 of 2003

Environmental law– lead agencies – regulation and management of the

environment – Kenya Ports Authority – whether KPA has authority under

section 12 of the Kenya Ports Authority Act to enter into agreements and

concessions with private companies to enforce international and national

legal obligations – obligations of KPA to prevent pollution

Environmental law– regulation and management of the environment –

obligations of lead agencies – where an agreement is entered into pursuant

to Kenyan law for environmental management – where the agreement

makes reference or complies with an international treaty that has not

been domesticated – whether such an agreement is legal

Environmental law– National Environmental and Management Authority

(NEMA) – powers of NEMA to regulate and control all environmental

related acts – section 7, 9(1), 87, 88(1), 89 and 93(1) of the Environmental

Management and Co-ordination Act – enforcement of regional and

international environmental conventions – section 9(2) (g) of the Act

Judicial review– application for order of judicial review – notice to the

Registrar – purpose of giving notice – whether an action may be

commenced without notice – whether failure to give notice is fatal

Judicial review– application for order of judicial review – titling the

application – mode of titling the application and the reasons –

consideration by the court where there is a muddle in the titling of the

application

Judicial review– application for order of judicial review – notice of motion

– whether it should be accompanied by a verifying affidavit – Order 53

rule 7(1) of the Civil Procedure Rules

Judicial review– certiorari – circumstances under which the order may

be granted – circumstances under which such an order can be made

against statutory tribunals

The applicants are in the business of removing sludge from ships docking

at the port of Mombasa. They sought the orders of certiorariand

prohibition against a Kenya Gazette Notice issued by the Minister for

Transport and Communications and letters issued by the 2nd and 3rd

respondent, which notice and letters authorised only two firms - namely

East African Marine Environmental Management Company Limited and

Mats International - to undertake sludge removal works at the port of

Mombasa. The applicants averred that the said notice and letters thereby

ruined their businesses and also adversely affected the lives of their

employees.

On the substantive application, it was contended for the applicants that

the gazette notice purporting to enforce the International Convention for

Prevention of Pollution from Ships, 1973 as modified by the Protocol of

1978 relating thereto (MARPOL 73/78), was wrong footed as MARPOL

73/78 had not been domesticated as part of the municipal law of Kenya

and thus none of the respondents had the legal capacity to enter into any

agreement purporting to enforce it. It was further argued that NEMA had

no legal basis for issuing the letter dated 8th September, 2003 and the

same should be quashed. Furthermore it was stated that KPA could only

enter into an agreement to regulate the port as authorised by law and the

concessions had not been authorised by law.

Counsel for the respondent submitted, firstly, that the three letters did not

contain any decision capable of being quashed by an order of certiorari;

secondly, that KPA had been authorised by the law to enter into agreements

and concessions with the interested parties; and thirdly, that the

Environmental Management and Co-ordination Act empowered NEMA

to co-ordinate various environmental management activities being

undertaken by the lead agencies and it could thus issue advice where

appropriate.

Held:

1. The purpose of the requirement that notice of an application for an

order of judicial review must first be given is to identify and crystallise

the issues in dispute and to minimise costs. In situations where it is not

practicable to give the notice the rules allow immediate action to be

taken without giving notice. Therefore, failure to give notice before

action is not fatal. If, however, the court is of the view that, in the

circumstances of the case, notice should have been given and perhaps

the matter resolved out of court, it may penalise the applicant by an

order of costs or by imposition of any sanction.

2. Naming the Minister as one of the respondents did not make the Republic

the applicant and respondent at the same time. It is common knowledge

that once an application has been brought in the name of the Republic

the person who urges it is the ex-parteapplicant and not the Attorney

General. If one of the government departments like a subordinate court

or a ministry is named as a respondent, the Attorney General appears

for that department.

3. In spite of the muddle in the titling of the application, the title shows

the Republic as the applicant and the Minister, KPA and NEMA as the

respondents. The lower part of the title starting with Republic as the

applicant should have been at the top as stated in the heading. The mix

up had not caused the respondents and interested parties any prejudice

and it did not make the application fatally defective.

4. Order 53 rule 7(1) of the Civil Procedure Rules, does not state that the

notice of motion should be supported by a verifying affidavit. What the

rule requires is the filing of the impugned order or document verified

by an affidavit. The documents or alleged decisions to be quashed in

the matter with a verifying affidavit are already before the court in the

same file.

5. The decisions of statutory bodies such as the KPA and NEMA, which

are not always under a duty to act judicially, are amenable to judicial

review if they are judicial or quasi-judicial. If they are purely

administrative or executive decisions, they are not amenable to judicial

review unless they are contrary to law, or they have taken into account

matters that they ought not to have taken into account. Their decisions

can also be quashed if they are so unreasonable that no reasonable

tribunal or body would have come to such decisions.

6. It is not necessary that a body or an authority should be a court in the

strict sense of the word for it to act judicially. An administrative body

in ascertaining facts or law may be under a duty to act judicially

notwithstanding that its proceedings have none of the formalities of, or

are not in accordance with, the practice of a court of law.

7. If in order to arrive at its decisions the body concerned has to consider

proposals and objections and consider evidence or if at some stage in

its proceedings leading up to its decisions there was something in the

nature of a law suit before it, then it would be under a duty to act

judicially. If, on the other hand, an administrative body in arriving at

its decisions has nothing before it like a law suit and its decision is

arrived by considering matters of policy then it is not under a duty to

act judicially.

8. The Gazette Notice in this case was a mere report by the Minister for

the consumption of the general public and the port users in particular.

Being a report it was not capable of being quashed by an order of

certiorari.

9. The letters containing the decisions of the KPA to terminate the licence

issued did not contain a decision capable of being quashed by certiorari.

10. The KPA, under section 12 of the Kenya Ports Authority Act (cap

391), has power to maintain, operate, improve and regulate ports

including the port of Mombasa. It has power to provide amenities or

facilities to those using the ports, as may appear necessary to its Board.

It has also power to prohibit, control or regulate entry into the port by

any person. The applicant cannot therefore be heard to claim that KPA

has no powers to stop them from going into the port to contract with

ship owners directly.

11. Pursuant to section 12(h) of the Kenya Ports Authority Act, the KPA

is obliged to provide amenities or facilities for use by persons calling at

the port. If it is not able to provide them; it has power under paragraph

(n) of sub-section (2) of that section to contract with any other person

for the provision of those amenities or facilities.

12. An agreement made pursuant to and under the provisions of the law

of Kenya does not become illegal simply because it incidentally

complies with and or makes reference to an international treaty or

convention which has not been domesticated and made the municipal

law of Kenya.

13. The letter issued by NEMA was just reporting what they had discovered

and it was not capable of being quashed by certiorari.

14. Under the provisions of sections 7, 9(1), 87, 88(1), 89 and 93(1) of

the Environmental Management and Co-ordination Act, NEMA is

empowered to control and regulate all acts, and even omissions, that

are polluting or likely to pollute the environment. Therefore, it was

perfectly entitled to make the decision or give the advice and warning

it gave in the letter.

15. NEMA, under section 9(2) (g) of the Act, is given the authority to

take steps to implement the provisions of regional and international

conventions and agreements to which Kenya is a party, like MARPOL

73/78 where local circumstances demand or allow.

16. It follows therefore that if ships calling at the port of Mombasa are,

under the international instruments like MARPOL 73/78, required to

discharge sludge to an acceptable reception facility, NEMA and the

lead agencies (defined in the Environmental Act as including parastatals)

are obligated to ensure that that is done.

17. Prohibition lies not only for excess of or absence of jurisdiction but

also for a departure from the rules of natural justice.

Application dismissed.

Cases

1. Ahmed v Republic[1957] EA 523

2. Republic v District Co-operative Officer Meru ex parte Simon Githira

& 7 othersMiscellaneous Application No 990 of 1995

3. East African Community v Republic[1970] EA 457

4. Maclaine Watson & co Ltd v Department of Trade[1989] 3 All ER 523

5. Kenya National Examinations Counncil v Republic ex parte Geoffrey

Gathenji Njoroge & 9 othersCivil Appeal No 266 of 1996

6. Municipal Council of Mombasa v Republic ex parte Umoja Consultants

LimitedCivil Appeal No 185 of 2001

7. Republic v Furnished Houses Rent Tribunal ex parte Kendal Hotels

Ltd[1947] 1 All ER 448

8. R v Minister of Health ex parte Committee of Visitors of Glamorgan

County Mental Hospital[1938] 4 All ER 32; (1939) 1 KB 232

9. Associated Provincial Pictures Houses Limited v Wednesbury

Corporation[1948] 1 KB 223; [1947] 2 All ER 680

10. Council of Civil Service Unions v Minister for the Civil Service[1985]

AC 374; [1984] 3 WLR 1174; [1984] 3 All ER 935

11. Franklin & others v Minister of Town and Country Planning[1974] 2

All ER 289

12. R v Metropolitan Police Commissioner, ex parte Parker[1953] 2 All

ER 717; [1953] 1 WLR 1150

13. Farmers Bus Service v Transport Licensing Appeal Tribunal[1959

EA 779

Texts

De Smith, SA et al(Eds) Judicial Review of Administrative ActionLondon;

Sweet & Maxwell pp 584, 585

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order LIII rules 3, 4, 7, 7(1)

2. Law Reform Act (cap 26) section 8

3. Civil Procedure Act (cap 21) section 3A

4. Kenya Ports Authority Act (cap 391) sections 3, 12, 12(1)(a), (n); (2)(n)

5. Environmental Management and Co-ordination Act (No 8 of 1999)

sections 7, 9, 9(1) (2) (9); 55; 87; 87(2); 88(1); 89

6. Civil Procedure Rules, [UK]

International Instruments

International Convention for the Prevention of Pollution from Ships, 1973

(MARPOL)

Advocates

Mr Gikandifor the Applicants

Mr Okellofor the Respondent

Mr Gitaufor the Interested Party

June 11, 2004, Maraga Ag Jdelivered the following Ruling.

By their Notice of Motion dated the 24th October 2003, brought under

order 53 Rules 3 and 4 of the Civil Procedure Rules, the Law Reform Act

cap 26 and section 3 A of the Civil Procedure Act, the 16 exparteapplicants

(the applicants) have sought the judicial review orders of certiorariand

prohibition. In paragraph 1 thereof they have sought an order of certiorari

to bring to this court Kenya Gazette No. 6332 of 10th September 2003

issued by the first respondent, Hon. John Michuki, Minister for Transport

and Communications (the Minister), the letters dated the 20th August and

30th September 2003 issued by the second respondent, Kenya Ports

Authority (KPA) and the letter dated the 8th September 2003 issued by the

third respondent, National Environment Management Authority (NEMA),

which notice and letters, according to the applicants, have appointed East

African Marine Environmental Management Company Limited and Mats

International (the interested parties) “as the only companies that can

undertake sludge removal works and which letters and notice have thereby

declared the operations of the exparteapplicants in sludge removal works

as unlawful ...” In paragraph 2 they have sought an order of “prohibition

to prohibit the respondents from proceeding on with their intentions

expressed in the aforesaid notice and letters”. The application is supported

by the verifying affidavit of Ali Salim Mohamed the proprietor of Waa

Ship Garbage Collectors, one of the applicants, and the statement both

filed on the 3rd October 2003 in support of the Chamber Summons for

leave.

In the verifying affidavit Mr Mohamed has averred that the applicants

have for about 15 years been contracted by ship owners to remove sludge

from ships docking at the port of Mombasa. They have done that

professionally without any pollution to the environment and that is why

KPA has renewed their licences year after year. By appointing the interested

parties as the only sludge removers, he said, KPA and NEMA (the

respondents) have not only ruined their businesses but have also affected

the lives of their about 3000 employees. The applicants claim that that is

against the declared policy of the Narc Government of creating 500,000

jobs per year. It is further averred that the decisions of the respondents

appointing the interested parties as the only sludge removers are dictating

to the ship owners as to who to contract with thereby interfering with

private contracting rights of business organizations. They have no right,

it is further averred, to do that. NEMA having not complained of any

pollution of the environment by any of the applicants, it was further

averred, the respondents had no ground for terminating their services

without even giving them a hearing contrary to the rules of natural justice.

The decisions, they said, are most unreasonable as they have the effect of

favouring one party thereby creating unemployment.

In response KPA and the interested parties caused replying affidavits to

be filed on their behalf.

Captain Twalib Khamis, the Harbour Master of KPA, swore the replying

affidavit on behalf of KPA. He averred that KPA is a statutory body created

by the Kenya Ports Authority Act, Chapter 391 of the Laws of Kenya,

(the KPA Act). Under that Act, KPA is mandated and obliged not only to

provide and operate but also to regulate, maintain, control and improve

the facilities, amenities and services to persons making use of prescribed

ports including the port of Mombasa. He further stated that in the exercise

of its powers and discharge of its duties KPA is empowered under the Act

to enter into any agreement with any person for the performance or

provision by that person of any of the services or facilities which it may

perform or provide.

Captain Khamis further stated that Kenya is a signatory to, and has ratified,

the International Convention for Prevention of Pollution from Ships, 1973,

as modified by the protocol of 1978 relating thereto or, in short, MARPOL.

73/78. Regulation 12 of Annex 1 to MARPOL 73/78 obliges the

government of Kenya to provide, at ports where ships which have oily

residues to discharge dock, facilities for the reception of such residues

and oily mixtures. To enable Kenya to perform her obligations and exercise

her rights under MARPOL 73/78 and other international conventions and

agreements, Parliament enacted the Environmental Management and

Coordination Act of 1999 (the Environmental Act). As a parastatal and

one of the lead agencies under the Environmental Act, he said, KPA has

an obligation to take positive measures to implement the letter and spirit

of the Environmental Act and any other legislation or regulation geared

towards the management and protection of the environment. Under the

Environmental Act NEMA has been established and charged with the

responsibility of supervising and co-ordinating all environmental

management activities being undertaken by agencies such as KPA and in

that respect NEMA has been working closely with KPA. The

Environmental Act, Captain Khamis further stated, prohibits pollution of

the environment and requires that any operator wishing to discharge

effluents and other pollutants into the sewage and or environment has to

install an appropriate plant for the reception and treatment of such effluents

and be licensed by NEMA. Studies carried out by NEMA and KPA in

conjunction with International Maritime Organization, an institution of

the United Nations, have established that sludge and other wastes from

ships have been discharged into the mangrove swamps around Mombasa

and have caused serious damage to mangrove plantations. Realising the

need to provide the port of Mombasa with a reception facility such as is

contemplated by regulation 12 of Annex 1 to MARPOL 73/78, he said,

KPA advertised both in the local and international press a pre-qualification

notice inviting firms competent and experienced in waste and collection

management to give proposals that would comply with the Environmental

Act, MARPOL 73/78 and other related laws and international treaties. In

the local press the advertisement was carried in the Daily Nation

Newspaper of the 29th November 2001. Following that advertisement the

interested parties submitted a comprehensive proposal but none of the 16

applicants presented or submitted expressions of interest. After tender

the interested parties were picked and KPA entered into concession

agreements with them on the 28th June 2002. The interested parties were

thereafter authorized by NEMA to operate the facility. He stated that the

concession agreements with the interested parties are non-exclusive and

that the applicants can always apply to KPA for a similar agreement.

Captain Khamis concluded that the gazette notice and the letters

complained of do not contain any decision capable of being quashed by

an order of certiorari, that judicial review does not lie in respect of

contractual relations and that to grant the orders sought the court will be

sanctioning operations by the applicants in contravention of the

Environmental Act.

Khalid AM Al-Nahdy, the Managing Director of the first interested party

in his replying affidavit sworn on behalf of the interested parties echoed

the averments contained in Captain Khamis’s affidavit as summarized

above and added that the first interested party is a liability company

incorporated in Kenya and established for the purposes of providing

environmental services for the Port of Mombasa and specializes in offering

comprehensive solutions in waste handling and management through the

provision of efficient waste reception and treatment plant. He further

stated that the reception and treatment of waste from the port involves a

long and complex process of receiving the waste such as sludge from

ships at their reception tanks followed by the process of sorting, screening,

decanting and centrifuging. The end products are clean oil which is used

for other purposes like in furnaces and engines, water which can be used

for irrigation and solids that can be turned into fertilizer.

Mr Al-Nahdy further deposed that the first interested party’s plant

established at a cost of over Kshs 400 million was conceived and developed

with a view to providing a reception facility to receive oil based waste

from ships calling at the Port of Mombasa in compliance with the

provisions of regulation 12 of Annex 1 to MARPOL 73/78 and the

provisions of the Environmental Act which have outlawed environmental

pollution through reckless collection and disposal of waste such as sludge,

garbage, hazardous substances and other pollutants from ships. Pursuant

to the invitation published by KPA in the Daily Nation Newspaper of 29th

November 2001, he said, the interested parties submitted a comprehensive

proposal for a Waste Collection/Handling System. The proposal was also

presented to the Kenya Ships Association who were satisfied that it

conformed to international standards. Their proposal and tender were

accepted and on the 28th June 2002 the interested parties entered into two

concession agreements with KPA relating to the collection and

management of waste from the Port of Mombasa and thereafter obtained

the necessary authority from NEMA to commence operations.

In the light of the foregoing, Mr Al-Nahdy further averred, the applicants

argument that the tender was awarded to the interested parties contrary to

the rules of natural justice does not hold any water as the applicants did

not tender for or show interest in the contract. Their application is therefore

not only misconceived but also malicious and brought in bad faith to

frustrate the interested parties. The contract between KPA and the interested

parties is non-exclusive and the applicants are therefore at liberty to

contract with KPA to provide the same services.

In response to paragraph 10 of the verifying affidavit, Mr Al-Nahdy further

stated that the same is misleading. The power to decide who carried sludge

rests with the KPA and not the ship owners and that KPA can only enter

into agreements for removal and management of sludge from ships with

operators who are duly certified and authorized by NEMA in accordance

with the Environmental Act. The applicants having not been so authorized

by NEMA, he said, should not be allowed to interfere in any way with the

operations of the interested parties. He further stated that the stay order

they have obtained in this matter has already caused the interested parties

enormous loss.

In response to the replying affidavits Mr Ali Salim Mohamed swore and

filed a further affidavit on behalf of the applicants in which he vehemently

denied that any of the applicants has ever discharged sludge into mangrove

swamps or any other area. He annexed to that affidavit a newspaper cutting

which he said shows that it is KPA which allowed oil to spill into the

mangrove swamp in September or October 2003 and that in 1991 KPA’s

fork lift knocked the oil tankers belonging to the Kenya Power & Lighting

Company Limited resulting in a massive oil spillage into the environment.

He explained in detail how the applicant removed sludge from ships

companies like Bamburi Cement who use it. None of them has ever been

charged for let alone warned of polluting the environment. To the contrary

they have been given letters of commendation by NEMA.

Regarding the interested parties Mr Mohamed stated that unlike the

applicants they have no experience in handling sludge. While admitting

that MARPOL 73/78 requires Kenya to ensure that sludge from ships is

directed to and received into an authorized reception facility with

appropriate certificates issued, he said that that responsibility lies with

the government. It should not be delegated to a private company like the

interested parties. He also said that as advised by the International Maritime

Organization the government or KPA should have developed the reception

facility instead of abdicating that responsibility to the interested parties

to make super normal profits. MARPOL 73/78 having not been

domesticated, he further averred, KPA has no powers to enter into

agreements like the ones it has entered into with the interested parties. He

concluded that the applicants were not aware of the tender issued by KPA

leading to the concession agreements as it was carried only once in the

Daily Nation Newspapers.

Counsel for the parties made long submissions along the lines of the

averments contained in their respective clients’ affidavits. They quoted

several authorities and raised several legal points. I will deal with those

submissions and legal points when considering each of them.

The first legal point that falls for consideration is the one raised by Mr

Gitau counsel for the interested parties. He urged that by virtue of section

8 of the Law Reform Act the Kenyan courts are required to apply the law

applicable in England on judicial review at any particular time. He argued

that the current law in England requires an applicant for judicial review

to first give notice to the proposed respondents to rectify the situation

complained of before taking legal action. He cited the Principles of Judicial

Review by De Smithpages 584 and 585 as well as the English Civil

Procedure Rules at pages 2048 to 2050 as authority for that proposition

and urged me to dismiss the application for non compliance with that

requiremt. He did not provide the relevant pages of De Smith’sbook. I

have, however, read the English Civil Procedure Rules on the point. My

understanding of the requirement that notice first be given is that it is

intended to identify and crystallize the issue or issues in dispute to

minimize costs. In situations where it is not practicable to give the notice

the rules allow immediate action to be taken without giving notice. In my

judgment therefore failure to give notice before action is not fatal. If

however the court is of the view that, in the circumstances of the case,

notice should have been given and perhaps the matter resolved out of

court it may penalize the applicant by an order of costs or imposition of

any sanction.

Mr Okello, learned State Counsel, representing the Minister for Transport

and Communications and Mr Gitau submitted that the applicants’ Notice

of Motion is fatally defective because it is not properly intituled. Citing

the cases of Mohamed Ahmed Vs Republic[1957] EA 523 and Farmers

Bus Service & Others -Vs- The Transport Licensing Appeals Tribunal

[1959] EA 779 they argued that the Notice of Motion should be brought

in the name of the Republic Versus the Statutory Authority or Authorities

as respondents, expartethe applicants. They submitted that the heading

as it is in starting with the names of the applicants is a complete muddle

and should be struck out. They also referred to the English Practice

Direction (Administrative Court: Establishment), [2000] 1 WLR 1654 at

page 1655 and Civil Procedure of England, (2003 Vol 1 Sweet & Maxwell

pages 1354 and 1355. Mr Okello, in particular, argued that the motion

should not have shown the Republic as the applicant and the Minister of

Transport and Communications as respondent as that is making the

Republic both the applicant and respondent.

With respect Mr Okello misunderstood the authority in Farmers Bus

Service(supra). Pursuant to the direction given in that case the heading of

the application at leave stage should have been:

“In the Matter of an Application by (the applicants for

leave to apply for orders of certiorariand prohibition

And

In the Matter of Kenya Ports Authority Act

And

In the Matter of the National Environmental

Management and Co-ordination Act 1999"

And after leave had been granted the Notice of Motion should then have

been intituled

“Republic applicant

Versus

Minister for Transport & Communications,

Hon The John Michuki

The Kenya Ports Authority

The National Environmental Management

Authority respondent

And

East African Marine Environmental Management Co

Ltd Mats International interested parties

Ex-Parte: Waa Ship Garbage Collectors & 15 Others”

By naming the Minister as one of the respondents, in my view, is not

making the Republic the applicant and respondent at the same time. How

else could the Minister be brought into the matter if there is a complaint

against him? It is common knowledge that once the application has been

brought in the name of the Republic the person who urges it is the exparte

applicant and not the Attorney General. If one of the Government

departments like the subordinate court or a ministry is named as a

respondent the Attorney General appears for that department.

The rational for bringing the application in the name of the Republic stems

from English Law. In the English system the origin of judicial review

arose from the immunity given to the judicial officers in the discharge of

their judicial duties. Public policy demanded that no judge should be

harassed by the thought that: “if I do this or that, I may be sued by this or

that prisoner or this or that litigant”. Rather than subject a judge or inferior

tribunal to influences of that kind the law provided that no litigant or

prisoner could bring an action against a judicial officer for anything done

by him in his judicial capacity. But that did not mean that nothing could

be done by any one. An unjust judge of an inferior tribunal was not to be

free from control. Although he did not owe a duty to a prisoner or litigant

he did owe a duty to the state and the state could call upon him to account.

In the old times in England the King was regarded as the state and the

state as the King. It was for the King to call upon any judge of an inferior

tribunal to account for his actions whenever a complaint was raised. The

King did this by the prerogative writ of certiorari. The very words

“prerogative writ” showed that it was issued by the royal authority of the

King. No subject could issue it on his own. He had no right to issue it as

that could amount to an action by an individual against a judge or a judicial

officer. All that the subject was required to do was to inform the Kings

judges, the Kings Bench, of his complaint. He could tell them about the

unjust judge of the inferior court and the King’s judges, if satisfied, would

then authorize the issue of a writ in the Kings name. The very titles showed

that. They were intituled Republic Vs ABC exparte XYZ. The title showed

that XYZ had made an ex-parteapplication to the Kings judges, the King’s

Bench, and the King’s judges had given leave for the proceedings to be

brought in the King’s name against the inferior court or tribunal. The

present day equivalent in Kenya is the application for leave to apply for

orders of judicial review. The notice to the Registrar who is supposed to

pass a copy to the Attorney General is information to the state of the

intended application.

Reverting to the matter before me the heading of both the application at

leave stage and the consequent Notice of Motion is as stated in the title to

this ruling. I agree with Messrs Okello and Gitau that it is a muddle. The

titles for the chamber summons application for leave and the subsequent

Notice of Motion should have been different as shown above. But does

that mean that the heading of this Notice of Motion as is headed makes it

fatally defective?

I have studied the authorities in both cases of Mohamed Ahmed Vs Republic

and Farmers Bus Service(supra). In the first case the notice of appeal

was intituled :-

“Mohamed Ahmed applicant

and

Crown respondent

(Appeal from the order of the High Court of Uganda at

Kampala (Honourable Chief Justice Mckisack) dated

the 11th June 1957".

It was held that, as the application had to be brought in the name of the

Crown, the heading made the Crown both the applicant and respondent.

The appeal was dismissed on other grounds and not on the ground of its

format. In the Farmers Bus Servicecase leave was given to amend the

notice of appeal and other documents of appeal. In neither of the cases

was it held that the erroneous heading of the application made it fatally

defective.

In this case, inspite of the muddle, the title shows the Republic as the

applicant and the Minister, KPA and NEMA as the respondents. The lower

part of the title starting with Republic as the applicant should have been

at the top as stated in the heading I have shown above. I do not think that

the mix up has caused the respondents and interested parties any prejudice

nor does it make it fatally defective. Accordingly I overrule the point

raised by Messrs Okello and Gitau on the format of the Notice of Motion.

The other point taken by Mr Gitau on the competence of the Notice of

Motion is that the same is not supported by an affidavit as required by

rule 7(1) of order 53. That rule states:-

“7(1) In the case of an application for an order of

certiorarito remove any proceedings for the purpose

of their being quashed, the applicant shall not question

the validity of any order, warrant, commitment,

conviction, inquisition or record, unless before the

hearing of the motion he has lodged a copy thereof

verified by affidavit with the Registrar, or accounts for

his failure to do so to the satisfaction of the court”.

In this case the applicants seek to have Gazette Notice No 6332 of 10th

September 2003 and the letters of 20th August 2003, 30th September 2003

and 8th September 2003 copies of all of which are annexed to the verifying

affidavit filed at leave stage. The applicants have stated in the Notice of

Motion that it is supported by that verifying affidavit. I do not find anything

wrong with that, least of all that failure to file another verifying affidavit

with copies of the same documents along with the Notice of Motion makes

it defective. In fact, if I may add, the rule does not state that the Notice of

Motion should be “supported” by a verifying affidavit. In my

understanding what the rule requires is the filing of the impugned order

or document verified by affidavit.

In the case of the Republic of Kenya Vs The District Co-operative Officer

Meru exparte Simon G. Ithira & OthersHC Mis App No 990 of 1995 it

was held that the provisions of order 53 rule 7 are mandatory. I entirely

agree with that. However in that case we are not told whether or not there

was before court a verifying affidavit or a copy of the decision sought to

be quashed. As I have already stated copies of the documents or alleged

decisions sought to be quashed in this matter with a verifying affidavit

are already before the court in this same file. I therefore do not find any

merit in the point raised in this respect and the same is also overruled.

Having disposed off the preliminary points I now come to the main issues

raised in this matter.

As I have already stated this Notice of Motion seeks to bring up to the

High Court and quash Legal Notice No. 6332 of 10th September 2003 and

the letters dated 8th September 2003, 20th August 2003 and 30th September

2003. As there are points raised on the actual prayers in this Notice of

Motion I think it is appropriate that I should set them out in extenso. The

exparteapplicants pray for orders:-

also bring before this Honourable Court the letters dated 20th August, and

30th September, 2003 issued by the 2nd respondent [Kenya Ports Authority]

and letter dated 8th September, 2003 issued by the 3rd respondent [National

Environment Management Authority]

“1] THAT the exparteapplicants be granted orders of

certiorarito bring before this Honourable Court Kenya

Gazette Notice No 6332 of 10th September, 2003 issued

by the 1st respondent Hon. John Michuki, Minister for

Transport and Communications and Authority] which

said Notice and letters have appointed the interested

parties as the only companies that can undertake sludge

removal works and which letters and notice have

thereby declared the operations of the exparteapplicants

in sludge removal works as unlawful and to have the

said Notice and letters declared as unlawful, illegal and

of no legal consequence and therefore null and void.

2] THAT the exparteapplicants be granted orders of

prohibition to prohibit the said respondents from

proceeding on with their intentions expressed in the

aforesaid notice and letters”.

Mr Gikandi, learned counsel for the applicants, strongly submitted that

the Gazette Notice reports of an agreement which purports to enforce

MARPOL 73/78. Citing the authority in the cases of East African

Community Vs Republic[1970] EA 457 and Watson Vs Department of

Trade[1989] 3 All ER 523 he argued that MARPOL 73/78 not being part

of the municipal law of Kenya by being domesticated none of the

respondents had the legal capacity to enter into any agreement purporting

to enforce it. According to him whether or not the applicants participated

in the tender process resulting in the appointment of the interested parties

as the only sludge removers from the port of Mombasa is immaterial. The

concession agreements being based on MARPOL 73/78, he said, the whole

process is wrong footed and must be quashed. He added that the Minister

should not even have reported on the agreements.

Mr Gikandi further argued that section 55 of the Environmental Act

authorizes the Minister responsible for matters of Environment to declare

any part of the coast to be a protected Coastal Zone. That has not been

done and NEMA had therefore no legal basis for issuing the letter dated

8th September 2003 and the same should also be quashed. He further

submitted that although section 12 of the KPA Act authorizes KPA to

regulate the port and enter into agreements with other parties it can only

enter into agreements authorized by law. The concession agreements have

not been authorized by any law and hence have no legal authority, he

concluded.

On their part counsel for the respondents and the interested parties equally

strongly opposed the application. All the three counsel submitted that the

gazette notice and the three letters did not contain any decision capable of

being quashed by an order of certiorari. Mr Okello submitted that although

the applicant’s counsel’s submissions challenged the concession

agreements the Notice of Motion does not seek to quash the agreements

and on the authority of the Court of Appeal decision in Kenya National

Examination Council Vs Republic exparte Geoffrey G Njoroge & Others

Civil Appeal No 266 of 1996 this court cannot grant any relief not prayed

for in the application. Messrs Swaleh and Gitau submitted that KPA is

empowered under the KPA Act and specifically under section 12 thereof

not only to provide, control and regulate services and activities at the Port

but also to enter into agreements like the concession agreements it entered

into with the interested parties. Mr Gitau added that in entering into the

agreements, KPA, as one of the lead agencies, is implementing the

Environmental Act. According to him the concession agreements

wereentered into under the provisions of the KPA Act, the Environmental

Act and Legal Notice No 159 of 10th September 2003.

Before I deal with these rival submissions, I would like to set out the

criteria upon which a decision can be amenable to the judicial review

order of certiorari. The Court of Appeal in Municipal Council of

Mombasa Vs Republic, exparte Umoja Consultants LimitedCivil Appeal

No 185 of 2001 while considering the scope of judicial review as a whole

stated:-

“As the court has repeatedly said judicial review is

concerned with the decision making process, not with

the merits of the decision itself. ... The court would

only be concerned with the process leading to the

making of the decision. How was the decision

arrived at. Did those who made the decision have the

power ie jurisdiction to make it? Were the persons

affected by the decision heard before it was made? In

making the decision did the decision maker take into

account relevant matters or did he take into account

irrelevant matters? These are the questions a court

having a matter by way of judicial review is concerned

with, and such court is not entitled to act as a court of

appeal over the decider, [for] acting as an appeal court

over the decider would involve going into the merits of

the decision itself such as whether there was or was

not sufficient evidence to support the decision and that,

as we have said, it is not the province of judicial review”

As regards certiorariwith which we are here concerned, the uses to which

it can be put include to secure an impartial trial, in instances where bias is

alleged in the court; to review excess of jurisdiction; to challenge an ultra

viresact; to quash a judicial decision arrived at in breach of natural justice

and to correct errors of law on the face of the record. In none of these

cases should the court entertain an appeal and it is not empowered to

substitute its own discretion or decision for that of the court or other body

whose act is being reviewed.

The above are the criteria applicable when considering the decisions of

inferior courts which are always under a duty to act judicially and statutory

tribunals which have a duty to act judicially or quasi judicially. However

when dealing with the decisions of statutory bodies, like KPA and NEMA

in this case, which are not always under a duty to act judicially, different

considerations come into play. Their decisions are amenable to judicial

review if they are judicial or quasi-judicial. If they are purely administrative

or executive decisions they are not amenable to judicial review unless

they are contrary to law, or they have taken into account matters that they

ought not to have taken into account or conversely they have failed to

take into account matters that they ought to have taken into account. Their

decisions can also be quashed if they are so unreasonable that no reasonable

tribunal or body would have come to such decisions.

As to when a decision is purely administrative or executive it all depends

on the facts and circumstances of each case.

It is not necessary that a body or an authority should be a court in the

strict sense of the word for it to act judicially. An administrative body in

ascertaining facts or law may be under a duty to act judicially

notwithstanding that its proceedings have none of the formalities of, or

are not in accordance with the practice of a court of law. If in order to

arrive at its decision the body concerned has to consider proposals and

objections and consider evidence or if at some stage in its proceedings

leading upto its decision there was something in the nature of a law suit

before it, then it would be under a duty to act judicially. If, on the other

hand, an administrative body in arriving at its decision has nothing before

it like a law suit and its decision is arrived at by considering matters of

policy then it is not under a duty to act judicially.

With these in mind I now wish to consider the impugned documents.

The first point for determination then is whether or not the gazette notice

and the letters contain decisions capable of being quashed by certiorari. I

will deal with each of them separately and where necessary set out the

relevant parts.

Gazette Notice No 6332 of 10th September 2003 was issued by the Minister.

In the first paragraph it states :-

“It is notified for the information of the general public

and the port users in particular, that Kenya Ports

Authority ... entered into an agreement with Messrs East

African Marine and Environmental Management

Company Limited ... on the 28th June 2002”.

The other paragraphs state what East African Marine and Environmental

Company Limited will do how it will do it and what it will charge.

Clearly this is not the Minister’s decision. The decision was that of KPA

which had been taken earlier, on the 28th June 2002, when it entered in the

agreements with East African Marine and Environmental Management

Company Limited. The gazette notice was a mere report by the Minister

for the consumption of the general public and the port users in particular.

Being a report it is in my view not capable of being quashed by an order

of certiorari.

Mr Gikandi submitted that the gazette notice should be quashed together

with the agreements it refers to. That, however, is not one of the prayers

in the applicants’ application. I have already set out herein above the

prayers and they are quite clear. That being so I agree with Mr Okello that

I cannot, in this application, order the quashing of the concession

agreements. See Kenya National Examination Council Vs Republic exparte

Geoffrey Gathenji Njoroge & OthersCivil Appeal No 266 of 1996 CA

(unreported). It then follows that even if the Gazette Notice was capable

of being quashed by certiorariand I quash it, that will still leave the

agreements intact.

The next documents I want to consider are the two letters dated 20th August

2003 and 30th September 2003 from KPA. The first letter dated the 20th

August 2003 is addressed to M/s Mwowako Shipping Agencies. It states

that:-

“LICENSING OF COMMERICAL OPERATIONS IN

PORT SLUDGE COLLECTION LICENSES

CALENDAR YEAR 2003

In accordance with the condition that was attached to

the issuance of the sludge collection licence to

yourselves, you are hereby given notice to cease

operations within three months from today, 18th August

2003. That is to say you shall cease operating on

Wednesday 19th November 2003.

This decision has been made following the

commencement of operations by M/s Mats

International. This firm has the mandate to manage

waste in the entire port area and shall in the near future

move into the area of garbage collection and disposal.

When this happens, all holders of garbage collectors

licences shall be duly notified.

For any further explanation, please contact the

undersigned”

This letter in my view contains the decision of KPA to terminate the licence

issued to M/s Mwowako Shipping Agencies with effect from the 19th

November 2003. It stated that “This decision has been made following

the commencement of operations by M/s Mats International”, which had

“the mandate to manage waste in the entire port area ...”. It is a decision

which affects the rights of people, in this case the applicant to whom it is

addressed. But as to whether or not it is amenable to judicial review remains

to be seen.

The letter dated 30th September 2003 was addressed to the same firm. It is

a reminder of the earlier one reproduced above which reiterated that that

firm’s contract would end on Wednesday the 19th November 2003. It

advised the firm to continue operating alongside M/s East African Marine

& Environmental Management Company until that date. It also advised

the firm to contact the Authority (KPA) in the event that the firm needed

further clarification in the matter. It does not, in my view, contain a decision

capable of being quashed by certiorari.

Whether or not certiorarishould issue to quash the first letter of 20th

August 2003 brings me to the second point raised in this matter. That is,

whether or not KPA had the legal capacity to enter into the concession

agreements with the interested parties and terminate the applicants’

licences. Mr Gikandi submitted that it did not have any such powers as

the agreements were based on MARPOL 73/78 which has not been

domesticated and made the municipal law of Kenya and that the decision

was made against the rules of natural justice.

KPA is a creature of statute - the KPA Act, Cap 391 of the Laws of Kenya.

It is established by Section 3 of that Act. Section 12 of the Act spells out

the powers of KPA. It states:-

“12(1) The Authority shall have powers :-

(i) to maintain, operate, improve and regulate the ports

set out in the second schedule

..........................

(ii) to provide such amentities or facilities for persons

making use of the services performed or the facilities

provided by the Authority as may appear to the Board

necessary or desirable.

(2) Subject to this Act, the powers conferred by

subsection (1) shall include all such powers as are

necessary or advantageous and proper for the purposes

of the Authority and in particular, without prejudice to

the generality of the foregoing, shall include power

..........................

(j) to prohibit, control or regulate:-

(i) the use by any person of the services performed, or

facilities provided, by the authority; or

(ii) the presence of any person, ship, vehicle or goods

within any port or on any premises occupied by the

authority

..........................

(n) to enter into agreements with any person -

(i) for the supply, construction, manufacture,

maintenance or repair by that person of any property,

movable or immovable, necessary or desirable for the

purposes of the Authority;

(ii) for the performance or provision by that person of

any of the services or the facilities which may be

performed by the Authority;

The ports in the second schedule referred to in section 12(l)(a) include

the port of Mombasa.

These provisions are self explanatory and require no elucidation. KPA

has power “to maintain, operate, improve and regulate the ports” including

the port of Mombasa. It has power to provide “amenities or facilitates” to

those using the ports “as may appear to the Board (the Board of KPA)

necessary or desirable”. It has also power “to prohibit, control or regulate”

entry into the port by any person. The applicants cannot therefore be heard

to claim that KPA has no powers to stop them from going into the port to

contract with ship owners directly. If it did not have those powers the port

of Mombasa would be like a market place and totally chaotic.

Pursuant to section 12(l)(h) KPA is obligated to provide amenities or

facilities for use by persons calling at the port. If it is not able to provide

them, it has power under paragraph (n) of sub-section (2) of that section

to contract with any other person for the provision of those amenities or

facilities.

It is common knowledge that there are many international ships calling at

the port of Mombasa. These are the ships from which the applicant have,

as they said for the last 15 years or so, been collecting sludge and other

waste. Due to the growing concern about the pollution of the environment

international treaties, conventions and regulations have been made

requiring, inter alia, that all ships should discharge all waste and in

particular sludge generated in the course of their journeys to acceptable

reception facilities at the ports where they call and obtain certificates that

they have done so. Failing to do that their monitoring agencies will accuse

them of discharging it into the sea and have them blacklisted. During the

hearing of this application the court visited the port of Mombasa and

went into one of the ships that docked there. Its captain showed us a book

containing a record of the ports where it had discharged sludge and the

quantities discharged at each port. He also showed us certificates issued

by those ports verifying those discharges.

In his affidavit sworn and filed on the 23rd October 2003 Captain Twalib

Khamis, the Harbour Master of KPA, stated that out of studies carried out

by KPA and NEMA in conjunction with the International Maritime

Organization, an institution of the United Nations, a serious need was

identified for providing the port of Mombasa with a reception facility in

accordance with the international regulations and in particular regulation

12 of Annex 1 to the MARPOL 73/78. In my view there is nothing wrong

with that. The Port of Mombasa is an international one. As it allows

international ships to dock there it has no choice but to comply with

international standard otherwise it will be blacklisted and isolated.

Apparently because KPA was not able or did not want to provide such

reception facility it entered into the concession agreements with the

interested parties to provide it. As I have already stated KPA had powers

under section 12(2)(n) to enter into such agreements. In my judgment

therefore reference to MARPOL 73/78 does not make any difference. An

agreement made pursuant to and under the provisions of the law of Kenya

does not become illegal simply because it incidentally complies with and

or makes reference to an international treaty or convention which has not

been domesticated and made the municipal law of Kenya.

I now turn to the letter from NEMA dated 8th September 2003. It is

addressed to the Manager WAA Ship G. Collector. It states:-

“REF: PROHIBITION OF DISCHARGING OF OIL

OR MATERIAL CONTAINING OIL (OIL SLUDGE)

INTO THE ENVIRONMENT

It has come to the notice of this office that all firms

handling ... oil sludge and other waste especially from

the port have been disposing these waste in such a

manner that causes pollution to the environment as there

was no facilities for appropriate discharge. This has been

the case for a long time.

I am very glad to inform these firms that our problems

have been solved and now there is facility which is to

be used for the disposal of oil containing liquids. The

EAM Environment Oil Receptor Facility has facilities

and capacity to recycle the oil sludge in an environment

friendly manner. This will ensure the EMCA 99

[Environmental Management and Co-ordination Act]

stipulation of a clean and healthy environment for all

persons in Kenya.

I therefore would like to implore you to use this facility

for the discharge [of] oil sludge. I also wish to remind

you that the discharge or disposal of oil or oil containing

material such as oil sludge is an offence. This is stated

in the EMCA 99 in section 93 subsection 1 to 3 that

quotes;”

The letter then proceeds to quote section 93 of the Environmental Act

1999 and continues :-

“this is addition to the fine not exceeding five hundred

thousand shillings as is stipulated in section 142(1( (c)

which will be charged upon conviction.

Let us use this facility to ensure a clean and healthy

environment for all”.

Does this letter have a decision capable of being quashed by an order of

certiorari? If it has did NEMA have legal authority to make the decision?

In my view the letter is just reporting what the NEMA office had

discovered. That is that “all firms handling sludge and other waste

especially from the port” had been discharging it recklessly thus polluting

the environment. That was because there was no facility for appropriate

discharge. The letter then informed the firms that a reception facility had

been developed capable of recycling oil sludge in an environment friendly

manner in compliance with the Environmental Act and implored that firm

to use that facility to avoid polluting the environment. It ended by warning

the firm that it is an offence under section 93 of the Environmental Act to

pollute the environment and informed it of the sentence it would suffer if

it contravened the provisions of that Act.

I hold that the letter has no decision capable of being quashed by certiorari.

If, however, I am wrong in this and it is found that the letter has such

decision, did NEMA have legal power or authority to make such decision?

Captain Twalib Khamis in his said affidavit stated that Kenya is a signatory

to MARPOL 73/78. Regulation 12 of Annex 1 thereof obliges the

Government of Kenya, as other signatories, to provide, at the ports where

ships that have oil residues to discharge, facilities for such residues and

oily mixtures from the ships. He further stated that to enable Kenya perform

her obligations, as it has a port where ships call, and exercise her rights

under MARPOL 73/78 and other international conventional conventions,

treaties and agreements, in addition to other legislation geared towards

establishing institutional frameworks for the proper management of the

environment, Parliament enacted the Environmental Management and

Cordination Act, 1999. NEMA is established under Section 7 of that Act

and Section 9 sets out NEMA’s objects and functions. The primary object

is stated by Section 9(1) in the following terms:-

“9(1) The object and purpose for which the authority

[NEMA] is established is to exercise general

supervision and co-ordination over all matters relating

to the environment and to be the principal instrument

of Government in the implementation of all policies

relating to the environment”.

Among its other functions NEMA is to co-ordinate the various

environmental management activities being undertaken by the lead

agencies and promote proper management of the environment for the

improvement of the quality of life in Kenya. It is also required under

section 9 to advise the Government on regional and international

environmental conventions, treaties and agreements to which Kenya

should be a party and follow up the implementation of such agreements

where Kenya is a party.

Section 87 of the Act is particularly relevant to this application. It provides

that:-

“87(1) No person shall discharge or dispose of any waste

whether generated within or outside Kenya, in such

manner as to cause pollution to the environment or ill

health to any person.

(2) No person shall transport any waste other than -

(a) in accordance with a valid licence to transport

wastes issued by the Authority; and

(b) to a waste disposal site established in accordance

with a licence issued by the Authority”.

(3) No person shall operate a waste disposal site or plant

without a licence issued by the Authority”.

Section 88(1) requires any person intending to transport wastes or to

operate a waste disposal site or plant, prior to transporting or to

commencing with the operation of waste disposal site or plant, to apply

to the Authority in writing for the grant of an appropriate licence. Section

89 provides that:-

”Any person who, at the commencement of this Act,

owns or operates a waste disposal site or plant ... shall

apply to the Authority for a licence under this part,

within six months after the commencement of this Act”.

And section 93(1) also provides that:-

“No person shall discharge any hazardous substance,

chemical, oil or mixture containing oil into any waters

or any other segments of the environment contrary to

the provisions of this Act or any regulation thereunder”.

From these provisions and others in the Environmental Act it is, in my

view, manifest that NEMA is empowered under the Act to control and

regulate all acts, and I may add even omissions, that are polluting or likely

to pollute the environment. As I have said if its impugned letter of 8th

September 2003 has any decision which can be quashed by certiorari

NEMA had authority under the Act and was perfectly entitled to make the

decision or give the advice and warning it gave in that letter.

With regard to MARPOL 73/78, which Mr Gikandi harped on, section

9(2)(g) of the Environmental Act requires NEMA to:-

“advise the government on regional and international

environmental conventions, treaties and agreements to

which Kenya should be a party and follow up the

implementation of such agreements where Kenya is a

party;”

In my view this section gives NEMA authority to take appropriate steps

to implement the provisions of regional and international conventions

treaties and agreements to which Kenya is a party, like MARPOL 73/78,

where local circumstances demand or allow. It follows therefore that if

ships calling at the port of Mombasa are under the international instruments

like MARPOL 73/78 required to discharge sludge to an acceptable

reception facility, NEMA and the lead agencies (defined in the

Environmental Act as including parastatals) are obligated to ensure that

that is done.

For these reasons I reject the applicants contention that KPA and NEMA

had no legal authority to issue the letters dated the 20th August 2003 and

8th September 2003 respectively. In the same vein I also reject their

contention that KPA had no authority to enter into the concession

agreements with the interested parties.

What I need to decide now is whether or not in making the decisions

contained in those letters and entering into the concession agreements

KPA and NEMA exceeded their authority or breached the rules of natural

justice.

In the English case of Republic Vs Furnished Houses Rent Tribunal exparte

Kendal Hotels Ltd[1947] All ER 448 it was held that certiorariis a very

special remedy. When it is sought in order to bring up and quash the

decision of a judicial tribunal the question which has to be considered is

whether or not the tribunal acted within its jurisdiction. If it is exercising

the powers with which it has been entrusted by an Act of Parliament

whether or not it misconstrues the Act or it rejects evidence or decides a

matter without evidence or misdirects itself in some way, that is not a

matter for certiorari. It was also decided in the case of Republic Vs Minister

of Health, [1938] All ER 32 that misconstruing a section of an Act is not

acting without jurisdiction.

In the celebrated case of Associated Provincial Picture Houses Limited

Vs Wednesbury Corporation[1947] 1 KB 223, in which the court

enunciated what later came to be known as the Wednesbury principles, it

was held that where a local authority is empowered under an Act of

Parliament to act or decide on some matter the court can only intervene in

three situations. The first situation is where it has acted out of jurisdiction.

The second one is where it has taken into account matters it ought not to

have taken into account or failed to take into account matters it ought to

have taken into account. The third and last one is where it has made a

decision that “is so unreasonable that no reasonable authority could ever

come to it” (page 230). This is what Lord Diplock described in Council of

Civil Service Unions Vs Minister for Civil Service[1985] AC 374 as “a

decision which is so outrageous in its defiance of logic or of accepted

moral standards that no sensible person who had applied his mind to the

question to be decided could have arrived at it”.

Did the said decisions of KPA and NEMA breach any of these principles?

As I have already stated, the two had legislative authoritive to make them

and they did not exceed that authority. They therefore acted within their

jurisdiction. Did they take any matter into consideration that they ought

not to have taken in consideration? Other than the allegation by Mr Gikandi

that they applied MARPOL 73/78, the applicants never made any

allegation of any matter having been taken into account which was not

supposed to be taken into account or that the respondents failed to take

into account any matter that they should have taken into account.

I have already stated that the Environmental Act obliged NEMA and the

lead agencies to implement regional and international conventions in

preservation of the environment and that the MARPOL 73/78 requirements

which they took into account are matters which were already provided

for in that Act. So they cannot be faulted in this respect. The decisions

can also not be said to be in any way unreasonable. I therefore find that

neither KPA nor NEMA flouted any of the Wednesbury principles. To the

contrary they acted within them.

What about the principles of natural justice? The applicants also

complained that they were condemned unheard. But they did not specify

in what respect they were so condemned. If it is in the award of the tender

to and the subsequent contract with the interested parties as the only sludge

collectors from the port, the respondents’ explanation is simple. When it

was realized that the port of Mombasa required an acceptable reception

facility and KPA was not in a position or did not want to develop one it

advertised and invited those interested to submit proposals. The applicants

did not submit any proposals but the interested parties did. After due

consideration the interested parties were awarded the tender to develop,

the facility and subsequently KPA entered into the concession agreements

with them. That none of the 16 applicants saw the advertisement in the

Daily Nationof 29th November 2001 inviting proposals sounds rather

incredible and unacceptable. Having not submitted proposals they cannot

be heard to complain that they were condemned unheard when they did

not show any interest in the tender. I find that the rules of natural justice

were not in any way violated and reject the applicants’ complaint in this

regard.

I have already found that the KPA letter of 20th August 2003 contained a

decision which withdrew or terminated the license of the applicant to

whom it was addressed. Is it amenable to judicial review?

As already stated KPA has authority under the KPA Act to inter alia

regulate entry into the port. It must be having its criteria when considering

applications for entry permits or licenses. Being one of the lead agencies

under the Environmental Act it must have considered the requirements

under that Act that any applicant was supposed to meet in order to be

licensed to collect sludge from the port. It had not received any proposals

from any of the applicants to develop an acceptable reception facility.

Under the Environmental Act, section 87(2) transporters of sludge and

other waste like the applicants are required to obtain a licence from NEMA.

The applicants have not. They have not said that they have an acceptable

and licensed receiption facility to which they wish to discharge sludge

and waste collected from ships. Considering these factors it must have

decided that the applicants were not suitable firms to be licensed to

continue collecting sludge. To arrive at that decision KPA did not require

to consider any evidence or proposals and objections. Its decision contained

in its letter of 20th August 2003 was therefore a purely administrative

decision not amenable to the judicial review order of certiorari. See

Franklin & Others Vs Minister for Town and County Planning[1974] 2

All ER 289, Republic Vs Metropolitan Police Commissioner, exparte

Parker[1953] 2 All ER 717 and Republic Vs The Rent Court of the

Company of Waterman and Lightermen of the River Thames(1897) 1 QB

659.

If, however, the applicants had submitted their proposals pursuant to the

advertisement of 29th November 2001 or objected to the interested parties’

proposals then the KPA decision to award the tender to the interested

parties could have been judicial or quasi-judicial and amenable to judicial

review order of certiorari.

This being the view I hold in this matter it is not necessary for me to

consider the other legal points raised and authorities cited.

In a nutshell I hold that the Gazette Notice No 6332 of 10th September

2003 issued by the Minister of Transport and Communications, the letter

from KPA dated the 30th September 2003 and the letter from NEMA dated

8th September 2003 have no decisions capable of being quashed by

certiorari. The letter from KPA dated 20th August 2003 has a decision

terminating the licence of the applicant to whom it is addressed but the

same is a purely administrative decision not amenable to certiorari.

The applicants’ second prayer was for an order of prohibition. prohibition

lies not only for excess of or absence of jurisdiction but also for a departure

from the rules of natural justice. For the reasons given above the

respondents did not exceed their jurisdiction and they did not flout the

rules of natural justice. The applicants plea for prohibition also fails.

The upshot of all the above is that the application fails in its entirety and

the same is accordingly dismissed with costs.