Republic v Timothy Mutiso – Public Health Officer Ongata Rongai Health Office Kajiado North Sub-County & Dickson Ntikoisa – Engineer, Road- Public Works County Government of Kajiado Ex-parte Hiram Muigai [2018] KEHC 7798 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

JUDICIAL REVIEW NO.  325 OF 2016

IN THE MATTER OF CIVIL PROCEDURE, THE LAW REFORM ACT AND THE PUBLIC HEALTH ACT

AND

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR AN ORDER OF CERTIORARI

BETWEEN

HIRAM MUIGAI..........................................................APPLICANT

VERSUS

TIMOTHY MUTISO – PUBLIC HEALTH OFFICER

ONGATA RONGAI HEALTH OFFICE

KAJIADO NORTH SUB-COUNTY.................1ST RESPONDENT

DICKSON NTIKOISA – ENGINEER, ROAD- PUBLIC WORKS

COUNTY GOVERNMENT OF KAJIADO...2ND RESPONDENT

JUDGMENT

1. By an application dated 2nd August 2016  the  exparte applicant  Hiram Muigai  seeks from  this court Judicial Review  orders of:

a) CERTIORARI to quash the decision of the 1st respondent Ongata Rongai  Health Officer, Kajiado North Sub County issued vide a statutory notice referenced  PH/RON/SN dated 10th May 2016 as well as the decision of the Public Works Engineer, Kajiado  County and Mr Dickson Ntikoisa ( the 2nd respondent) issued vide a document  titled  “public notice” dated  29th  June  2016.

b) Spent

c) Costs of the application

2. The  application is predicated  on the  supporting  affidavit of  Hiram  Muigai sworn on 2nd August 2016 in Los Angeles County  Azusa California USA, the statutory statement dated 18th July  2010 and verifying affidavit notarized on the same date of 18th July 2016.

3. The exparte  applicant’s case is that  he lives for gain in the USA and that  on 7th April  2009  the  1st  respondent  issued to him a statutory notice in which it was alleged that the applicant  was  discharging waste waters from Plot No Kajiado/Ongata  Rongai/45 and into the neighboring plot No. 49 Kajiado.Ongata Rongai.  The said notice allegedly stopped the applicant from discharging the said waste into the public street and the neighbor’s plot, to fix the defective soak pit and avail the building   plans for inspection.

4. The applicant asserts that  the allegation levelled  against him   by the respondents  were not true but that the 1st respondent  caused the arrest and prosecution of the applicant’s  agent  Julius  Mungai for allegedly discharging waste water or raw sewage into the  complainant’s  plot No. 49 contrary to Section 115  and  118  (1) (b) (c ) and  (e) as read with  Section  119 and  121  of the Public Health Act ( Cap 242) Laws of Kenya; and  failing to comply  with a statutory notice to stop discharging waste waters onto plot No. 49 contrary to Section 120 of the  Public Health Act cap 242  Laws of Kenya which charge vide Kajiado criminal case No. 175/2011 was, before the hearing commenced, the trial court  ordered for  a site visit upon  which the court made remarks  that the complainant’s  plot  was badly  kept, that the pit latrine  was almost  full and was still  in use  and  that bathrooms on Plot No. 49 had no means of drainage.  Further, that the said court directed Public Health Officers, National Environment Management Authority (NEMA) and Public Works Engineers to visit the site and assess possible origin of the waste waters.

5. It was further alleged that at the hearing of the said criminal case,  the 1st  respondent’s  witness  told the  court that he could not tell  that the raw sewage was  emanating  from the applicant’s septic tank since there was a pit latrine in the neighboring  which  was  full of water and  human faeces  and  a bathroom used  by tenants  staying  on  the plot.

6. Further, it  was  deposed that  analyses of the samples taken  by the  1st respondent from the septic tank on the applicant’s  plot vis a visthose taken from the boundary wall on the side of the plaintiff’s  wall were  inconclusive.

7. The applicant further asserted that on 16th July 2013 the applicant’s agent/caretaker was acquitted under Section  215 of the Criminal Procedure Code  on all  the charges  initiated  at the instance of the 1st  respondent,  on account that there was no conclusive evidence that the  waste  water that was on plot No. 49 owned by Anne Wanjiku Wainaina was emanating  from the applicant’s  neighboring  Plot No. 45.  It is claimed that the trial court further held that   drainage  on Plot  No. 49 was wanting  as  it’s toilets  were full  and bathrooms in use had no disposal point hence it was impossible to confirm beyond all reasonable doubt that the water that was on plot No.49 was emanating from the applicant’s  plot No. 45.

8. Further, the applicant claimed that there  was no scientific  evidence  that if there  was any  leakage  from the soak pit on  his property, any foul water would have been filtered by the time it reached Plot No. 49  which is over 21  feet  and  would present  itself  as clean  water.

9. It was therefore alleged  that on 10th May 2016  the  1st respondent  issued the applicant  with  another notice  similar to the  one which  he had  been issued with on  27th April 2009 with the  same orders, which  notice was  to expire  on 6th June  2016.

10. The applicant  claimed that it is impossible  to comply with that notice as he had not discharged  any foul waters from is property  and further, that the soak pit has  been  approved by  all  the  relevant  public authorities.

11. Further, that as  a court of competent  jurisdiction had ruled  that there is no evidence to support the allegations of the 1st respondent, there was a real risk of having the applicant  arrested  and  prosecuted for failure to  comply with  the  said statutory  notice hence these proceedings, to protect his fundamental  constitutional  rights  from being violated.

12. The applicant claimed that the 2nd respondent  also issued  him  with a similar notice “public notice” dated 29th June 2016   claiming that:

1) The applicant’s building lacks an adequate liquid waste management system;

2) There is  water discharging  from the applicant’s  building named   ‘Faith House’;

3) The percolation of liquid waste had posed a serious health hazard to the public; and

4) The said percolating water is weakening the foundation of the applicant’s building thereby compromising its structural stability and in turn the safety of its tenants and its neighbors.

13. It was alleged that the 2nd respondent’s notice raises issues that are purely Public Health in nature yet it is an Engineer of Public Works.

14. It  was claimed that the  2nd respondent  had threatened  to close the applicant’s building, evict his tenants and demolish his premises if the notices and orders were not complied  with, even  without hearing the applicant’s story.  The said notices were annexed together with proceedings from the criminal trial court.

15. Despite  service  of the notice of  motion upon the  respondent’s  severally, the  2nd  respondent  only  filed a replying  affidavit  on 25th January  2017 sworn by Timothy  Mutiso  on  24th January  2017 contending that the application by the applicant is baseless, unfounded, speculative  and  an abuse  of court process  and that  the applicant was using the court process to sanctify an illegality.  It  was  contended that the dispute  herein  is a purely public health concern of violation of the  Public Health Act due  to nuisance  arising  from the applicant’s  plot No.  45 within Ongata Rongai Township.

16. Further, that despite  the  acquittal of the applicant’s  agent/caretaker on  16th July 2013  by the  Magistrate’s Court at  Kajiado for lack of conclusive  evidence that waste  water  was  emanating  from the  applicant’s  plot No. 45 of Ongata Rongai, the said trial court visited  the  site with Public Health, NEMA and Public Health Officers and  respective reports  were filed  in court as annexed.

17. That the 2nd respondent  was  the  CEC of Public Works , Roads, Transport and incharge of approving building plans and  issuance of certificates of occupation  for private buildings  such as   that  of the  applicant.

18. That is  was upon  the site visit that  the  2nd respondent  issued a public notice notifying the public of danger being faced by  tenants  in the applicant’s plot and  the  need for  them to  vacate  the  building  to pave way for  inspection.

19. However, it is contended that the applicant had failed to drain all the  pits and  water tanks  as required  and  failed to  avail all the statutory  approvals  from the approving  authorities, and that he had not availed the details of the project consultants including contractors, architects, structural engineers that he used during the construction as  required  by the said notice.

20. It is further contended that the Public Health Officer also issued a  statutory notice to the applicant notifying him of the urgent  need to take the necessary  steps  to prevent  a recurrence of the said  nuisance  but that  the applicant  had totally overlooked  the said notice yet the effluenct emanating from the applicant’s   plot is a major threat to the  health  and  comfort of the residents  of Ongata Rongai.

21. The  1st and 2nd respondents therefore claimed that the applicant was in breach of the law and that he had rushed to this court with unclean hands and therefore his application should be dismissed with costs for want of merit.

22. The 3rd respondent, Ann Wanjiku Wainaina who is the proprietor of land comprised in title No.  Kajiado/Ongata Rongai/49  adjoining the  applicant’s plot  No. 45  filed  replying  affidavit  on  21st March 2017 contending, among others that the applicant’s plot has a four floor  business/residential  flat known  as “Faith House” while plot No. 49  had a few shops  thereon.

23. That in early April 2009 after tenants moved into plot 45 premises, an incessant  and steady leakage  of foul effluent from the boundary wall pooled in her plot and that initial  investigations led to conclusions that the foul effluent was emanating from septic tank of the applicant’s house which seemed  to be too small for the  increased human density  but  that despite  requests by the Public  Health  and the 3rd respondent, the  applicant  refused  to abate  the  nuisance  hence  the Public Health  Officer had no other option but to issue the applicant with the requisite  statutory  notices and that  it  was  upon the  expiry  of those notices that the caretaker  was arrested  and   charged  in court in Public Health  case No. 175/2011  at Kajiado  Senior Principal Magistrate’s Court.

24. The 3rd respondent contended that  following  recommendations  by the Senior Principal Magistrate in her judgment  of 16th July 2013  to visit   the  site and  ascertain  the  root cause  of the menace, the applicant  filed Petition No.  HCC Miscellaneous  590/2013   where the  court ( Mumbi Ngugi J)  held that   there  were no violations  of the  petitioner’s  rights  as  alleged and that the learned Judge asked the 2 parties –applicant and the 3rd respondent to allow Public  Health and NEMA  Officers to visit the site and establish  the  source  of the effluent that gave rise to  the  criminal prosecution and the Petition.

25. It was contended that the trial  magistrate therefore  visited the site  with Public Health  and  Public Works  officers and that the two officers filed their  respective  reports which concluded  that the source  of the effluent  flow was septic  tank on  plot 45.

26. Further, that prior  to all this, vide  Kajiado Senior Principal Magistrate Civil Suit  No.77/2010, the 3rd respondent had filed suit against the  applicant seeking   for damages  suffered  as a  result  of the foul effluent  seepage  and   that the  court found  the applicant  herein  liable  for the nuisance  and  ordered  him to further cease the discharge  within 30 days therefrom  24th December  2015 but that there  had been no abatement  of the said  foul effluent.

27. It was further contended that Justice Mumbi Ngugi’s  judgment  allowed Public Health Officers to intervene  and  issue notice  of removal of  nuisance  to prevent  recurrence  thereof  but that the   applicant  has  done nothing to  remove  the  foul smell and effluent  which poses  a danger to him and his tenants and to the public generally because the  applicant’s  building  sits on  liquid waste  for  years  which compromises  its structural stability hence  an imminent  danger to its  inhabitants  and her tenants.

28. It was deposed  in contention further that the  applicant herein had produced a building plan for the  said premises  as  evidence  in civil case No. 77/2010  claiming  that the same had been  approved in 1998 but that  the  Public Works Engineer  who is  purported to have signed the plan recommending it for  approval was  not an employee of that office in  1998 and  that he had been employed  much later.

29. It  was further contended  that the exparte applicant  had, despite  requests, failed to provide  his  building plans to the Public Works Office and that such building  plans are subject to compliance with the Local Government (Adoptive By-Laws)(Building Order, 1968) which (Adoptive By- Laws) ( Building) Order 1968 which law along with Schedule 4 of the Constitution  give ample  latitude  to the County  Government ( Successor  to the Local Government) to bring order  to the housing  sector and  reign  in on errant developers.

30. It  was  deposed further that  todate, the foul effluent   continues to flow  to the 3rd  respondent’s plot and that therefore  the claim  that the  applicant  resides  in America  are meant  to violate  the  3rd  respondent’s right  to own her  property  quietly  and  peacefully  and  intended to  intimidate  public institutions from executing their lawful mandates in safeguarding  public  safety  and  health  hence the court should not  restrain  the  1st and  2nd  respondents from undertaking their public duties and  obligations.

31. The applicant filed a further affidavit on 24th March 2017 in reply to the first and 3rd respondent’s replying affidavits  denying  that there were  only a few  shops on LR plot 49 and asserting that there were many shops, stalls, make shift dwelling  houses, an open  bathroom and  a pit latrine  on plot  49  and that the pit latrine and bathroom are near the boundary  wall dividing  plots  49  and  45.

32. The applicant restated the evidence adduced in Kajiado  criminal case No. 175/2011  Republic  vs  Julius Mungaiwhere the  3rd respondent  testified  that there  were  several  houses, pit latrine and  bathroom.  That when  the  public works, Public Health  and  NEMA officials  visited  the site, no excavation was done between the  area covered  by foul water  and the pit latrine  and the bathroom.  That the Public Health  report was clear that it is  unlikely that the effluent  being discharged  was sourcing  from the pit latrine  and that the  NEMA reports totally ignored this aspect of possible  source of sewerage  foul waste waters being from plot  49.

33. That in any event, he was never invited to be present during excavation hence the investigations were wanting.  That the  evidence of David Musau Suki  was emphatic  that when  water goes through the soil the solids disappear and the water becomes clear.

34. That there is a 21 feet distance  between the two  plots  and that the boundary  wall  was compacted  with soil, sand, gravel and  concrete as there are flats in between hence any water  percolating  through  would  exit  as clean and  clear water.  That  the  decision   in Kajiado  Principal Magistrate’s Court  has been challenged  vide Civil Appeal  No. 1 of  2016  which is   still pending.

35. That as the investigations made by Public Works, NEMA and  County Government of Kajiado were  incomplete  and  incorrect,  the impugned decisions  contained  in the statutory notice of 10th May  2016  and  29th June  2016 were unjustified  and unlawful and  ought to be quashed.

36. The parties’ advocates filed written submissions which they also canvassed orally by way of highlights.

37. The exparte  applicant’s  submissions  were filed  on  7th April  2017  setting  out  the  background  of the matter  and  heavily  relying on the proceedings in Kajiado criminal case No. 175/2011 to back up his case.  In that case, the applicant’s agent/caretaker   was acquitted as  explained  herein above and in the highlights  adopting  the written  submissions, Mr Chege, counsel for the applicant maintained that the  three reports  relied on by the  1st and  2nd respondents to issue notices for compliance were flawed as they were made as a result of incomplete excavations between the two adjacent plots 45 and 49, yet the applicant was  never invited to be present during the alleged  excavation  which had  nonetheless  been recommended by the court that tried  his agent, in order to know where the foul waters were coming from.

38. It was maintained that the decisions reached were not correct because evidence of Musau in the criminal case was clear that filtration process would make the water come out clear.  That the Public Health Officials made findings without the benefit of a report from the Government Chemist hence the decisions reached were devoid of the findings anticipated.

39. It  was submitted that the report  of the County Government says the  building is  structurally sound  and that is shows  no sign  of failure yet  a  decision  to demolish  it  was made hence  the  decisions were made without any logical or sound reasoning hence this court is bound to intervene as the decisions were ultra vires.  It  was  also  submitted that the  2nd notice  was ultra vires because it was not issued under the Public Health Act  and  does not  refer to any report  as a basis.

40. Finally, I was submitted that the processes applied were wrong, and not based on fairness but oppressive hence the application should be allowed.

41. The 3rd respondent  relied  on the written  submissions as filed  without any highlights whereas  the 1st and  2nd  respondents  did not appear  at the hearing.

42. In the 3rd respondents submissions filed on 3rd May 2017, it  was  contended that the notices issued by  the  1st and  2nd respondents  were  statutory  notices  issued  under  Section 119  as read with Section 115  and  118 of the Public Health Act  which empowers the  Medical  Officer of  Health  if satisfied  of the existence  of a nuisance, to serve a notice on the author of the nuisance.  Reliance was placed on Republic vs Kenya Revenue Authority  Exparte  Yaya Towers Ltd [2008] e KLR relying  on Halsbury’s Laws of England 4th Edition VOL(1)(1) paragraph 60  that the  remedy of Judicial Review  is concerned  with reviewing  not the merits  of the decision  but the  decision making  process itself.

43. In this case it was contended that what the applicant was seeking  from the court  was  the merits  of the decision  as to whether  it  was  correct  or not.

44. On the allegation by the applicant that the notices  amount to double jeopardy following the acquittal of his agent Julius  Mungai in criminal case No. 175/2011, it was  submitted that  the applicant was not the accused person in the said case.  Further that the trial magistrate directed excavations on site to determine the source of the effluent discharge which decision was upheld by Mumbi J.

45. Further, that in any event, the civil suit against the applicant for damages for nuisance had found the applicant herein liable for effluent  discharge   and  directed  him to stop the  nuisance  within  30 calendar  days  but that the nuisance had  gone  unabated.

46. It was submitted that as  the merits of the cause of the nuisance had been dealt with the multiple fora, this court should not venture into such matters in this Judicial Review  application.

47. Reliance was placed on JR Miscellaneous Application No. 231  of  2013  Republic vs  NCC exparte  Kwench Ltd.

48. On the 2nd respondent’s public notice, it was submitted  that the 2nd respondent did not issue notice under the Public Health  Act  hence it cannot  be ultra vires  the Public Health Act   capable  of being  quashed. It was further submitted that  the  said  notice is pursuant  to the Fourth Schedule to the Constitution  which gives  functions  and  powers to the  County Governments to cater for  basic services  and  amenities  to the  public while  ensuring  the public safety  in the enjoyment  of public  or private  amenities offered  to them.  Reliance was placed on Regulations 168, 205, 243 of the Regulations made under the repealed Local Government Act.

49. It was contended that the report of Public Works states more than the  soundness  of the structure unlike  what the applicant  had painted.  That  the findings  and conclusions  were to the  effect that  the  exparte applicant’s building  was  in breach of several building by-laws  and  was  thus a danger  to the  safety and  health of  the  public.

50. That Regulations  25, 254 and  255  of the Local Government( Adoptive By-laws) Buildings Order 1968 allows the 2nd  respondent  to issue  such notice  prescribing  the  period  which shall be   allowed to rectify  the  contravention and to  notify the  Council in writing of  compliance  with the requirements of the notice, hence  the  2nd   respondent’s  public  notice  was  within its  mandate.

51. That the function of the 1st  and  2nd respondents  are to  safeguard the  public against  any public  nuisances  and to regulate  matters relating to public safety hence the institutions should be  allowed to  carry on with their  work  and not to be  stopped from abating  the  spillage  of effluent  waste  which has  existed  since  2009. The 3rd respondent urged the court to dismiss the exparte applicant’s motion with costs to the respondents.

DETERMINATION

52. I have considered the foregoing and in my humble view, the main issues for determination in this matte are:

1) Whether the  1st and  2nd  respondents  had power to issue the notices which are  impugned;

2) Whether the judicial Review orders sought herein are available to the exparte  applicant;

3) What  orders should this  court make;

4) Who should bear costs of these proceedings.

53. On the first  issue of whether  the  1st and  2nd respondents  had the power  to issue the  impugned  notices, it is  important   to identity  the  said  impugned  notices.  The notice dated 10th May 2016   issued to the exparte applicant refers to plot No. 46 Ongata  Rongai  Township.  It is titled  a statutory  notice  and  issued on  10th May  2016  and  expiring  on  26th June  2016.  It was issued under the Public Health Act Cap 242 Sections 118 by the Ongata Rongai Divisional Public Health Services, office, Kajiado North Sub County.  The issuer is Timothy Mutiso.  The notice stated that the Public Health Officer  was satisfied  that there  was in existence  of  nuisance  arising   from:

a) Discharging  waste  waters on the public  street/neighbors  plot;

b) Defective  septic/soak pit.

c) Inadequate  septic/soak pit.

d) Flaked and  worn out paintings .

54. The applicant  was given  28 days  within which to  abate  and  prevent  a  recurrence of the  said nuisance  and to  carry out   certain  activities listed  there under  namely:

i) Stop  the discharge;

ii) Repair  defective  septic/soak pit;

iii) Increase capacity  of the  septic/soak pit;

iv) Repair  flaked/ worn out  paintings  of entire building internally and  externally and  avail the  building  plans for  scrutiny.

55. The notice   was left to  the agents at 2. 57 p.m.  It is  important  to note that  the notice  relates  to plot 46   and  not  45  as pleaded  by the exparte  applicant.

56. However, all the facts  in this case point to plot No. 45 and the applicant  alludes  to plot  45  and since  this  court is  vested  with power  to do justice  without  technical  restrictions  and restraints, and  focus  on substantive  justice, it  shall be  deemed that the impugned  notice relates to plot  45  and  not 46.

57. The notice issued by the  Public  Health Officer  dated  10th May 2016 and is a notice to comply pursuant to Section 118  of the Public  Health Act and  it is so clearly stipulated in the notice.  The purpose for which the notice was issued is also stipulated therein in very clear terms.

58. In addition, the actions  that the applicant  was expected  to take  to abate  the  nuisance  are also  stipulated  in the notice  which is signed  and  with a  date line  for  compliance.

59. Article  42  of the Constitution of Kenya, 2010  clearly  stipulate  that every person has the right to a clean and healthy environment  which includes  the right: To  have an environment protected for the benefit of present  and future generations  through  legislative  and  other measures, particularly those  contemplated in Article 69; and  To have  obligations relating to the  environment fulfilled  under Article 70.

60. Section 115 of the Public Health Act on the other hand  stipulates  that: no person  shall cause  a nuisance  or shall  suffer  to exist  on way land or  premises  owned or occupied d by  him or of which  he is in charge any nuisance  of other  condition  liable to be injurious  or dangerous  to health.

61. In addition, Section  118(1)  of the  Public Health Act sets out  what constitutes  a  nuisance  and  they include:  any dwelling  or premises or part  thereof which  is or are of  such construction or in such  a sate or so situated  or so dirty or so  verminous as to be in the opinion  of the medical  officer  of Health injurious  or dangerous to Health, or  which is or are  liable  to favour  the  spread  of any infections  disease  and  any act, omission or thing which is, or may  be, dangerous to life, or injurious  to health.

62. Under Section  118(2), the author of the nuisance means the person  by whose act, default or sufferance  nuisance  is caused, exists  or is continued, whether  he is the owner of occupier  or both owner  and  occupier  or any other person.

63. Under Section 119 of the Act, the  Medical Officer of Health , if  satisfied  of the existence  of a nuisance, shall serve  a notice on  the author of the nuisance, or, if he cannot be found, on the occupier or owner of the dwelling or premises on which the  nuisance arises  or continues, requiring  him to  remove it within  the time  specified in the notice, and  to execute  such work  and  do such things  as may be  necessary  for that purpose, and  if the  Medical Officer of Health  thinks it  desirable  ( but not otherwise, specifying  any work  to be executed  to  prevent  a  recurrence  of the said  nuisance.

64. It follows that  where a Medical  Officer of Health  is satisfied  that there  exist  nuisance, he is   empowered  to notify the author  of the nuisance to remedy the nuisance.  The  Act defines   the  author  of  the  nuisance  to mean the person  by whose act, default, or sufferance nuisance  is caused, exists  or is continues, whether he is the owner or occupier or both owner and  occupier or any  other person.

65. The applicant  is the owner  of the premises  upon which there is alleged to be nuisance  which  has pitied  him with  his neighbor  owner of the plot 49  disputing  in and out  of court.

66. The trial court in the criminal case where the applicant’s  agent/caretaker  was charged and  acquitted  nonetheless  went  ahead  and  recommended  that investigations be carried out  to establish  the source  of the  nuisance.  This was after  the court visiting  the site  and  seeing for  itself  the situation as it was.

67. However, the applicant  who appears  to permanently  reside  in the USA challenged  the  Magistrate’s  decision.  The challenge  by way of petition  on account of violation  of his rights  proceedings was   dismissed  by Mumbi J.

68. The 3rd  respondent  also sued  the applicant  in a civil  claim  vide  SPM CC 77/2010 at Kajiado for damages  for the tort  of nuisance  and the court entered  judgment  in her favour.  The applicant   claims that  he has challenged  that decision  by way of appeal on account that the magistrate did not have jurisdiction  to hear  and  determine  the claim, which appeal is still pending  in court and until overturned, it remains a valid decision.

69. The applicant challenges the  notice issued by  the Public Health Officer  on  10th May  2016  on account that it is not  true that there is  any nuisance on his  plot or at all  and  blames  the  3rd respondent for his woes.  He claims that the notice was  procedurally unfair and oppressive because there is no conclusive  evidence  that there is  any  nuisance  on his plot.

70. Honourable  Mumbi J  in Miscellaneous  Civil Application  No. 590/2013  vide her  judgment   dated  31st  July  2014   observed   as follows, in dismissing  the  applicant’s petition:

“In the circumstances, I find no violation of the Petitioners rights as alleged.  The petitioner  need  not appear  before the court  seized  of the matter  under whose  supervision the  excavation, with the assistance of the various  state officers, including NEMA, and  Public Health is continuing, He has, however, an obligation, as does the 3rd respondent, should this be required, to co-operate with Public Health and  NEMA officers  in the process of establishing the source of the effluence  giving rise to the criminal prosecution and the present litigation.”

71. The learned judge further observed that:

“Should any of the parties  fail to  co-operate then the medical  officer  of health can invoke  once again the powers vested in  him or her under  the Public Health Act.  In particular,  as noted   above, the Medical Officer  of Health has the power under Section 119 proviso(11) to remove the nuisance  and  may do  what is  necessary  to prevent  the  recurrence  thereof.”

72. The  3rd respondent  on realizing  that nothing  was  being done  to remedy the situation reported  to the Public Health  and  Public Works  as there  was  foul smell  effluent   posing  a danger  to the tenants and the public generally owing to the dense  population in the area.  The Public Health Officer visited the  premises  on 23rd April  2015   between  3. 30-4. 45  to determine   the source of effluent  as had been  directed by  the magistrate  and after establishing the defects  and condition  of  the premises,  recommended  that the septic  tank be excavated  immediately and be expanded  to be able  to cater for the  building’s  liquid  waste management; that there  be overhaul repair  of the whole building  as may be  necessary  and  other works  be done  to the satisfaction of the Public Health Officer; that the applicant  produce approved building plans and any other policy  documents as required   by law and  ensure frequent  exhaustion of  the septic tank.

73. The  Public Health Officer concluded that the matter required   immediate  action  to avoid  any human  catastrophe  that could occur  due to the  prevailing  unsanitary  conditions.  He also  recommended  immediate  evacuation of tenants  to pave  way for the abatement of the nuisance  as  stipulated  in the Public Health Act  Section 118 and  119 thereof.

74. The court also notes that the joint inspection report in excavation works by NEMA dated 7th September 2015 shows a dire situation at the applicant’s premises.  The findings speak for themselves where even the building is said to be tilting towards one side  as  confirmed  by the architect  on site.  The foundation of the 4 storey building was said to be wet  for  a long time as  evidenced  by Green Algae.  On digging, the trench produced effluent flowing to the pipe  and  effluent  also flowed  on the side of  the wall.  Samples were taken to establish levels of contamination and informal improvement comments given  to address  waste  water management   around the environment.

75. Another report by Public Works of Kajiado County Government   found that indeed  there  were  serious  issues  with the applicant’s  plot among  others – discharge  from plot  45  flowing  into plot  49; waste water  was  percolating  from the foundation of the applicant’s  house  to plot 49 and  to the road reserve; which would  weaken  the  foundation thereby  compromising  structural  stability  of the building and safety of the occupants  and  the  public in  general; that the applicant in order to conceal the problem  extended  concrete works  to the foundation  hence encroaching  on the  neighbors plot; the agent  of  plot  45  did not  co-operate with the inspection team in giving the owner information on plot details and  producing  approved building  plans; the  septic tank was built without approval, that the applicant be subjected to penalty, the building  be vacated  to allow  for inspection of septic tank; the  current septic tank be demolished  and  a new one constructed  to ensure all waste  water being disposed of properly; the county officials, NEMA and  Public Health Officers to  inspect the building  before it is  deemed  to be safe for occupation.

76. From the above  position  as  brought  out by the   parties, I have  no doubt  that the respondents  have the statutory mandate  to  safe guard the  public against any threat  to the public  health  and  safety of the public   and  residents of a given area.  Public Health   and  matters  of  physical  planning  are now  devolved  functions   as stipulated  in Articles 185, 186  and  187  of the Constitution  and the Fourth Schedule  to the Constitution on distribution of functions  between  the  National Government  and the County Government.

77. Under  Part  2  of the Fourth  Schedule  to the Constitution , Section  3 is clear  that the functions  and  powers  of the County are: 3) County   health services, including, in particular – control of  air pollution, noise  pollution, other  public  nuisances  and  outdoor  advertising. County Planning and  development  including  (d)  housing; County public works  and  services  including   storm  water  management  systems s in built  up  area; and  water  and  sanitation  services. Regulations  25, 254 and  255  of the Local Government( Adoptive By-laws) Buildings Order 1968 allows the 2nd  respondent  to issue  such notice  prescribing  the  period  which shall be   allowed to rectify  the  contravention and to  notify the  Council (Now County Government) in writing of  compliance  with the requirements of the notice. Accordingly, the  2nd   respondent’s  public  notice  to the exparte applicant on the need to comply with certain requirements regarding the condition of his building  ‘Faith House’ was  within its  mandate.

78. There is sufficient evidence  on record  that the  1st  and  2nd respondents  have made  concerted efforts, on invitation of the  3rd respondent, to make  the  applicant  appreciate  the  gravity of the  matters  complained  of but  the applicant  has developed  a ‘holier  than thou’ attitude.  “He  sees  no evil and   hears  no evil;

79. Perhaps  only nature  can  take its  own cause  to make  him understand what is  on the ground  namely, the day  his building  which is  occupied  by human  beings  will come  down  crumbling, is when  he will learn  his lessons.  As   for now, he can afford to battle it out in courts while he hibernates in a far off land in the USA. No court of law should be asked to ignore what is alleged to be a death trap.

80. The Notice issued by the Public Works officer was no doubt in accordance the constitutional mandate of the County Governments as stipulated above, even if there were no rules. Nonetheless, the county Government has power to ensure safety of buildings in the county and therefore it is important that the applicant appreciates that role and complies with the requests which in my view are polite enough. If the applicant has the documentation being requested for verification and in accordance with the decision of Mumbi J in the Petition, he has nothing to fear.

81. In the humble view of this court, the  applicant   has not  demonstrated  that he  is ready to listen  to the experts in public  health  and  public works   matters  and  to comply with the recommendations given by  the  two offices, and  which recommendations  are for  his own  benefit.  He has  not bothered, if at  all he considers   the recommendations  given to  be biased, to  engage  his own  independent  experts  in public health  and  public works  matters to  assess  the alleged nuisance to his own building wherein he derives  benefits  in the form of rent  collection, and to assess  the structural stability of his building, for   purposes of carrying  out some repair  works  as recommended, in order  to abate the alleged  nuisances  so as to  avert  the  risks  involved. No doubt, an alleged nuisance which is not abated can lead to devastating consequences including fatalities.

82. I therefore find it very unfortunate  that the  applicant  is challenging  the  jurisdiction  of the 1st  and  2nd respondents in  matters of public  health  and  public  works. This court    has no difficulty finding that the two offices have jurisdiction to deal with matters complained of and in issuing the impugned notices, which notices are meant to avert a catastrophe and not to vex or punish the applicant in any way. I see no arbitrariness or bad faith on the part of the respondents.  It is upon the applicant to engage the two public offices  for purposes of finding a lasting solution to the alleged menace.  It is however regrettable that one can use courts to escape from environmental justice.  There is a heavier price to be paid for evading environmental justice than evading   judicial justice; I must say so without apologies.

83. Therefore, on  whether the  applicant  is  entitled to the  Judicial Review  remedies sought, I have no difficulty  in finding that no such  remedies  would be available  to an applicant  whom this  court has  found, is using   the  judicial process to evade justice   and  justice in the  sense of the  protection  of the environment.

84.  Iam in agreement with the holding by Odunga  J  on 31st March  2014  in Republic  vs  Nairobi City County & another exparte Kwench Ltd [2014]e  KLR:

“23, Therefore, where the medical officer of health is satisfied that there exist   nuisance he is empowered to notify the author of the nuisance to remedy the nuisance…

28 As  was  held in  Republic vs  Kenya Revenue Authority  Exparte Yaya Towers Ltd [2008] e KLR  the remedy of Judicial Review  is concerned  with reviewing  not the merits  of the decision of  which the application for  judicial review  is made, but  the  decision making  process itself. It is important  to remember  in every  case that  the  purpose  of the remedy  of judicial  review  is  to ensure that the individual   is given fair  treatment  by the authority  to which he has  been subjected  to and that  it is no part of that pursue  to substitute  the opinion  of the judiciary  or of the individual  judges  for that  of the authority constituted by law to decide the matter in question  unless  that  restriction  on the power of the court is observed, the court  will, under the guise of preventing  abuse  of power, be itself, guilty  of usurpation of power. (see Halsbury’s Laws of England 4th Edition VOL (1) (1) paragraph 60”

85. The  1st  and  2nd respondents  have exercised their statutory  and constitutional mandates to notify  the applicant  of the alleged nuisance  on his premises  and  having specified what   works to be  executed to prevent  recurrence  of the said alleged  nuisance, the applicant, not  being  an expert  in such matters  cannot be  protected  by this court  from complying   with the law.

86. Accordingly, I find and  hold that the  applicant’s  motion is devoid   of any merit  and the same  be  and is hereby dismissed with costs  to the respondents.

Dated, signed and delivered in open court at Nairobi this 19th day of March, 2018.

R.E. ABURILI

JUDGE

In the presence of:

Mr Chege counsel for the exparte applicant

Mr Githuka counsel for the 3rd respondent and h/b for Mr  Kaikai for the 1st and 2nd respondents

CA: Kombo