Weekly Newsletter 007/2021



Kenya Law

Weekly Newsletter


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Kenya Law
Case Updates Issue 007/2021
Case Summaries

CONSTITUTIONAL LAW Re-assignment of ministerial responsibility of the Kenya Meat Commission from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence ought to be preceded by public participation

Law Society of Kenya v Office of the Attorney General & another; Kenya Meat Commission (Interested Parties) & another [2021] eKLR
Constitutional Petition No. E283 of 2020
High Court at Nairobi
AC Mrima, J
February 15, 2021
Reported by Kakai Toili

Download the Decision

Constitutional Law – national values and principles of governance - public participation – public participation of decisions taken in exercise of Executive authority - what were the circumstances in which a decision taken in exercise of Executive authority could be subjected to public participation – what was the rationale for subjecting Executive decisions that had significant effects on stakeholders and/or the public to the national values and principles of governance - whether it was mandatory for public participation in making a decision on re-assignment of ministerial responsibility - Constitution of Kenya, 2010, article 10 and 132(3)(c).
Constitutional Law – Executive – Cabinet - concept of ministerial responsibility - what was the nature of the concept of ministerial responsibility – where the ministerial responsibility of the Kenya Meat Commission was re-assigned from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence – whether the reassignment of ministerial responsibility interfered with the functions of the Defence Council - whether the Cabinet Secretary for the Ministry of Defence was responsible for the overall policy, control and supervision of the Kenya Defence Forces – Constitution of Kenya, 2010, article 132(3) and 241; Kenya Defence Forces Act, 2012, section 10; Kenya Meat Commission Act, Cap 363, section 8; Licensing Laws (Repeals and Amendment) Act No. 17 of 2006, section 104.
Constitutional Law – Executive – President – powers of the President - re-assignment of ministerial responsibility - under what circumstances could the President re-assign ministerial responsibility where the Constitution or a statute assigned that responsibility to a particular cabinet secretary - what were the factors to consider in determining whether a decision to transfer ministerial responsibility from one ministry to another was arbitrary? – Constitution of Kenya, 2010, article 132(3).
Words and Phrases – minister – definition of minister – a prominent government officer appointed to manage an executive or administrative department - Black’s Law Dictionary, 10th Edition, Thomson Reuters at page 1146.
Words and Phrases – responsibility – definition of responsibility - the quality, state, or condition of being answerable or accountable - Black’s Law Dictionary, 10th Edition, page 1506.

Brief facts:
The petitioner challenged the manner in which the President, through Executive Order No. 3 of 2020, (which Executive Order was duly implemented by the Cabinet Secretary for Agriculture, Livestock, Fisheries and Irrigation) re-assigned ministerial responsibility of a State Corporation, the Kenya Meat Commission, the 1st Interested Party (Commission), from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence.The petitioner claimed that the President contravened the law and called upon the court to issue various reliefs to remedy the situation.
Whereas the petitioner admitted that the President had the authority under article 132(3)(b) of the Constitution of Kenya, 2010, (Constitution) to direct and coordinate the functions of the ministries and Government departments, the petitioner contended that such authority did not extend to transfer of Government institutions established under a statute without having due regard to the established mechanisms in the statutes or triggering amendments to the statute in issue. As such the petitioner urged the court to issue among other orders, a declaration that the Executive Order was unconstitutional.

Issues:

  1. What was the nature of the concept of ministerial responsibility ?
  2. Under what circumstances could the President re-assign ministerial responsibility where the Constitution or a statute assigned that responsibility to a particular cabinet secretary?
  3. What were the factors to consider in determining whether a decision to transfer ministerial responsibility from one ministry to another was arbitrary ?
  4. Whether the Cabinet Secretary for the Ministry of Defence was responsible for the overall policy, control and supervision of the Kenya Defence Forces.
  5. Whether reassignment of ministerial responsibility of the Kenya Meat Commission from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence interfered with the functions of the Defence Council.
  6. What were the circumstances in which a decision taken in exercise of Executive authority could be subjected to public participation?
  7. What was the rationale for subjecting Executive decisions that had significant effects on stakeholders and/or the public to the national values and principles of governance ?
  8. Whether it was mandatory for there to be public participation in making a decision on re-assignment of ministerial responsibility. Read More..

Relevant provisions of the law
Constitution of Kenya, 2010
Article 132
(3) The President shall—

(a) Chair Cabinet meetings;
(b) direct and co-ordinate the functions of ministries and government departments; and
(c) by a decision published in the Gazette, assign responsibility for the implementation and administration of any Act of Parliament to a Cabinet Secretary, to the extent not inconsistent with any Act of Parliament.

Held:

  1. The concept of ministerial responsibility focused on Government’s accountability and justification of its actions either to Parliament, the courts or the electorate. The concept of ministerial responsibility had two aspects; there was the individual ministerial responsibility and the collective ministerial responsibility.
  2. In Kenya, a cabinet secretary (formerly known as a minister) exercised both individual and collective responsibility. On individual responsibility, a cabinet secretary oversaw, was responsible and accountable to the affairs of the ministry he/she was in charge of. Such a cabinet secretary was answerable to Parliament and courts on the actions of the ministry.
  3. The cabinet secretary attended Parliament or court when summoned. There were, however, times when other senior Government officials in the ministries could be summoned to attend Parliament or court instead of the cabinet secretary. Under the concept of individual ministerial responsibility, cabinet secretaries were called upon to resign or even face court charges in cases of maladministration in the Ministry either alone or with some other senior officials.
  4. In instances where a Government parastatal or a State corporation was concerned in Kenya, the general trend had been that the members of the board of directors and/or the senior management and/or the concerned department or committee were called to account in Parliament or court. They could, as well, be called upon to resign or be accordingly charged before a court. The cabinet secretary who exercised ministerial responsibility over the parastatal or a State corporation could also be summoned to appear in Parliament.
  5. Collective ministerial responsibility applied in Kenya. The concept of ministerial responsibility was a sound principle in law and played a significant role in calling upon the Government to account for its actions. It was applicable in Kenya at both the individual and collective levels.
  6. Courts had a duty and power to ensure that all the three arms of Government acted, but within the law. Ministerial responsibility was a constitutional convention that ministers remained accountable to Parliament and courts for the actions of the Executive arm of Government.
  7. Ministerial responsibility was a derivate exercise of Executive authority by cabinet secretaries. The assignment of ministerial responsibility arose in two ways; -
    1. when expressly provided for in the Constitution or an Act of Parliament (ministerial responsibility by Constitution or statute).
    2. When neither the Constitution nor any law provided for the assignment. In that case it was the President who was constitutionally and statutorily called upon to assign such responsibility (Ministerial responsibility by Executive Order).
  8. Ministerial responsibility by Constitution or statute, was variously depicted in the Constitution and Acts of Parliament. When the Constitution or a statute assigned ministerial responsibility, it would expressly name the responsible cabinet secretary. Ministerial responsibility by Executive Order arose when neither the Constitution nor any statute assigned such responsibility. In that case the President, in exercise of Executive authority, was under a duty to accordingly assign such responsibility. In discharging that duty, the law called upon the President to act, but within the law. Any act in transgression of the law had to, without doubt, be sanctioned.
  9. The Constitution and the Kenya Meat Commission Act (KMC Act) did not assign the ministerial responsibility to any cabinet secretary. The KMC Act also did not define the minister it severally referred to. The instant case was a case of assignment of ministerial responsibility by Executive Order as opposed to assignment of ministerial responsibility by Constitution or statute. The issue of amendment to the KMC Act did not hence arise in the circumstances of this case.
  10. Where the Constitution or a statute expressly assigned ministerial responsibility to a particular cabinet secretary then the President could only re-assign that ministerial responsibility to another ministry or cabinet secretary after necessary amendments were made. Anything short of that led to an illegality.
  11. The principle that a petitioner ought to demonstrate with some degree of precision the right or article of the Constitution that it alleged had been violated, the manner it had been violated, and the relief it sought for that violation was settled. That was the incidence of burden as provided for in section 108 of the Evidence Act, Cap. 80 of the Laws of Kenya.
  12. The specific provisions of the Constitution alleged to have been contravened and the manifestation of contravention or infringement had to be pleaded and proved in order to sustain the contention that the transfer of ministerial responsibility from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence was arbitrary and amounted to commercialization of the Ministry of Defence.
  13. The Kenya Defence Forces Act (Forces Act) was an Act of Parliament to provide for the functions, organization and administration of the Kenya Defence Forces pursuant to articles 232 and 239(6) of the Constitution; to give effect to article 241 and other relevant articles of the Constitution, to provide for disciplinary matters, and for connected purposes. Article 232 was on the values and principles of public service. Article 239(6) called upon Parliament to enact legislation to provide for the functions, organization and administration of the national security organs.
  14. Section 10 of the Forces Act provided for the functions of the cabinet secretary for the time being, responsible for matters relating to defence. It was the Defence Council and not the Ministry of Defence or the cabinet secretary for the time being, responsible for matters relating to defence, which was responsible for the overall policy, control and supervision of the Kenya Defence Forces. Further, the statutory assignment of the ministerial responsibility in the Forces Act to the cabinet secretary for the time being responsible for matters relating to defence did not in any way interfere with the functions of the Defence Council.
  15. The petitioner had not demonstrated how the re-assignment of the ministerial responsibility by the Executive Order would interfere with the functions of the Defence Council . In fact, the thrust of petitioner’s contention was based on section 8 of the KMC Act which provision was repealed by the enactment of section 104 of the Licensing Laws (Repeals and Amendment) Act No. 17 of 2006.
  16. The functions of the cabinet secretary for the time being responsible for matters relating to defence did not in any way deal with the overall policy, control and supervision of the Kenya Defence Forces or the Defence Council. It was the Defence Council which was a distinct entity under article 241 of the Constitution which exercised absolute control and supervision of the Kenya Defence Forces.
  17. Under section 10 of the Forces Act the cabinet secretary for the time being responsible for matters relating to defence could be assigned other functions by the President or any written law. Such duties, unless otherwise demonstrated, could include exercising ministerial responsibility over a State corporation.
  18. The petitioner had not sufficiently demonstrated, whether under the law or any settled practice, how the impugned re-assignment would amount to commercialization of the Ministry of Defence. The purpose of the re-assignment was aptly explained by the 2nd respondent. By and large, the move was aimed at revamping the performance of the Commission. Any Government of the day was expected to undertake such measures. Further, article 132(3) of the Constitution and the Corporations Act provided for the President’s power to assign ministerial responsibility.
  19. Guided by the judicial decisions on arbitrariness on one hand and the facts of the instant case on the other hand, it was a tall order to find that the impugned decision to re-assign the responsibility was arbitrary on the basis of the following reasons: -
    1. The making of the decision was provided for under the article 132(3) of the Constitution and the Corporations Act.
    2. There was a basis for undertaking the decision as alluded to in the depositions of the 2nd respondent and the 2nd interested party.
    3. The decision was not made capriciously.
  20. The contention that the re-assignment of the ministerial responsibility from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence amounted to commercializing the Ministry of Defence and that the decision was done arbitrarily was not proved.
  21. A decision taken in exercise of an Executive authority could have to be subjected to public participation or not depending on its resultant effect. If the decision only impacted on the normal and ordinary day-to-day operations of the entity, subjecting it to public participation was undesirable and would result to more harm than any intended good. The harm was that public entities would be unable to carry out their functions efficiently as they would be entangled in public participation processes in respect to all their operational decisions. It would likely be impossible for any public entity to satisfactorily discharge its mandate in such circumstances.
  22. As long as a decision dealt with the internal day-to-day operations of the entity such a decision needed not be subjected to public engagement. The opposite was true of decisions involved in the second scenario: those were operational decisions whose effect transcended the borders of the public body or agency into the arena of, and had a significant effect on the major sector players, stakeholders and/or the public. There was ample justification in subjecting the exercise of the statutory power in that scenario to public participation. The primary reason was that the resultant decisions had significant impact on the public and/or stakeholders.
  23. There was justification to the position that Executive decisions which transcended into the arena of, and had a significant effect on the major sector players, stakeholders and/or the public ought to be subjected to article 10 of the Constitution. The justification found refuge in article 132(3)(c) of the Constitution which required that any assignment of ministerial responsibility to a cabinet secretary ought not to be inconsistent with any Act of Parliament. Therefore, the exercise of the Executive power under article 132(3)(c was not absolute. The exercise of such authority was subject to the law.
  24. Another justification was borrowed from the argument developed on the concept of ministerial responsibility by Constitution or statute. If the Constitution or a statute assigned ministerial responsibility to a specific cabinet secretary then any re-assignment of such responsibility to another cabinet secretary had to be preceded by appropriate amendments to the Constitution or statute. The position was fortified in that any amendment to the Constitution or statute had to be preceded by public participation. Indeed, courts had variously held that Parliament and county assemblies had to carry out elaborate pubic participation as the case could require. It also depended on the nature of the matter under consideration.
  25. If any re-assignment of ministerial responsibility provided for by the Constitution or a statute had to be subjected to public participation, as the case could be, then even in instances where the law was silent on the assignment of ministerial responsibility, any re-assignment of such responsibility had to as well be preceded by public participation. The element of public participation had to, therefore, be undertaken in any decision re-assigning ministerial responsibility. That was because re-assigning ministerial responsibility affected an earlier decision which assigned the responsibility to another cabinet secretary. The re-assignment could not hence be done unilaterally. It had to be preceded by public participation.
  26. The decision to re-assign ministerial responsibility was one which transcended the borders of internal operational decisions in exercise of the Executive authority into the arena of, and had a significant effect on the major sector players, stakeholders and/or the public. For instance, if a decision dealt with reshuffling of the Cabinet, renaming of ministries and State departments, among like others, then such a decision was purely a decision on the internal operations of the Executive and need not to be subjected to public participation.
  27. The decision to re-assign the responsibility of the Commission from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence affected the operations of the Ministry of Agriculture, Livestock, Fisheries and Irrigation. There was evidence that the re-assignment caused the transfer of budgets from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence.
  28. The Commission was a State corporation by dint of section 2 of the Corporations Act. Section 4(1) of the KMC Act provided that the Commission was a body corporate having perpetual succession and a common seal, and should have all the powers conferred by the Act. It had a board of directors, a chairman and 16 other board members. The affairs of the Commission were, hence, undertaken in compliance with the Constitution, the KMC Act and any other appropriate laws. The decision on re-assignment did not seek the input of the Commission or at all. It was reasonably expected that, at least, the Commission and any other major stakeholder, ought to be consulted before the making of the decision.
  29. There were various stakeholders involved in the livestock sector. They included the farmers; those farmers were also not consulted. The stakeholders had all along dealt with the Ministry of Agriculture, Livestock, Fisheries and Irrigation as the parent ministry. They ought to have been made aware of any change that affected the ministerial responsibility of the parent ministry.
  30. There was no evidence to the effect that there was any attempt to subject the decision to re-assign the ministerial responsibility to the Ministry of Defence to public participation in any way. A decision to re-assign ministerial responsibility from one Ministry to another involved several processes and impacted, not only on the stakeholders but the public at large. Prior to making such a decision, there was need to at least carry out due consultations, if the change was not sanctioned by the Constitution or any statutory amendments like in the instant case. The decision did not, therefore, pass the test in article 10 of the Constitution on public participation.
  31. The decision to re-assign ministerial responsibility over the Commission from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence ought to have been preceded by public participation given that an initial assignment of the responsibility was made to the Ministry of Agriculture, Livestock, Fisheries and Irrigation and the KMC Act did not vest the ministerial responsibility over the Commission on any cabinet secretary.

Petition partly allowed; each party to bear its own costs.
Orders:

  1. The claim that the re-assignment of the ministerial responsibility from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence had to be preceded by the amendment of the Kenya Meat Commission Act failed and was dismissed.
  2. The claim that the decision to re-assign the ministerial responsibility from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence was arbitrary and amounted to commercialization of the Ministry of Defence failed and was dismissed.
  3. The claim that the decision to re-assign the ministerial responsibility from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence was in violation of article 10 of the Constitution for want of public participation succeeded. The court declared the decision constitutionally infirm. The decision was thereby quashed.
  4. As the decision to re-assign the ministerial responsibility from the Ministry of Agriculture, Livestock, Fisheries and Irrigation to the Ministry of Defence was already effected and budgets accordingly moved, in order to accord the respondents an opportunity to regularize the situation, the effect of the order (iii) above was suspended for ninety (90) days.
CONSTITUTIONAL LAW

Publishing of a person’s image without their consent violates the right to privacy and human dignity

Mutuku Ndambuki Matingi v Rafiki Microfinance Bank Limited [2021] eKLR
Constitutional Petition No. 10 of 2020
High Court at Machakos
GV Odunga, J
February 22, 2021
Reported by Kakai Toili

Download the Decision

Constitutional Law – fundamental rights and freedoms – enforcement of fundamental rights and freedoms – right to privacy and human dignity - nature of the right to privacy and the right to human dignity – claim that a person’s image was published without his consent in order to promote a particular business - whether the publishing of the images violated the right to privacy and human dignity - Constitution of Kenya, 2010, article 31.
Constitutional Law – constitutitional petitions – remedies for infringement of fundamental rights under the Constitution – compensation - whether award of compensation was an appropriate and effective remedy.

Brief facts:
The petitioner operated an account with the respondent, an institution offering savings facilities, credit, money transfer services, trade finance forex and bank-assurance services. According to the petitioner, he applied for financial assistance towards purchasing a motor cycle which application was approved and he was granted the loan by the respondent. The petitioner claimed that he subsequently repaid the loan together with the interest accrued. The petitioner further claimed that later on he was called to the respondent’s Machakos branch and was informed that the respondent needed to take his photograph on the account that he was a loyal customer of the respondent to which the petitioner agreed.
It was pleaded that though the petitioner agreed to have his photograph taken, he did not acquiesce nor consent to the respondent using his image or likeness for any of the respondent’s advertisements or promotions and in particular its promotion for the purchase of motor cycles known as boda boda. The petitioner alleged that the respondent published pamphlets prominently showing his image and likeness and in particular the promotion in issue. The petitioner averred that he never participated in the promotion. It was the petitioner’s case that the respondent violated his right to human dignity and privacy. The petitioner sought for among others orders that a declaration be issued that the respondent violated his rights to privacy and human dignity.

Issues:

  1. What was the nature of the right to privacy and whether publishing of a person’s image without their consent in order to promote a particular business violated the right to privacy?
  2. What was the nature of the right to human dignity and whether publishing of a person’s image being advanced a financial facility without their consent violated their right to dignity?
  3. Whether award of compensation was an appropriate and effective remedy for infringement of a fundamental right under the Constitution? Read More...

Relevant provisions of the law
Constitution of Kenya, 2010
Article 31
Every person has the right to privacy, which includes the right not to have-

(a) Their person, home or property searched;
(b) Their possessions seized;
(c) Information relating to their family or private affairs unnecessarily required or revealed; or

Held:

  1. There was no material on the basis of which the court could find that the petitioner’s right not to be held in slavery, servitude and forced labour was violated.
  2. The right to privacy consisted essentially in the right to live one’s life with minimum interference. It concerned private family and home life, physical and moral integrity, honour and reputation, avoidance of being placed in a false light, non-revelation of irrelevant and embarrassing facts, unauthorized publication of private photographs, protection from disclosure of information given or received by the individual confidentially.
  3. Unjustified invasion of one’s privacy was a violation of one’s fundamental right and had to be protected and where it was violated one was entitled to a relief. The petitioner’s images were taken and published in order to promote the respondent’s business . Prima facie, that amounted to a violation of the petitioner’s right unless that action could be justified by the respondent.
  4. Since it was admitted that the petitioner’s image was published, that was prima facie evidence of violation of his privacy. Accordingly, the burden shifted to the respondent to justify the limitations to the right to privacy. Apart from bare averments, there was no evidence that the petitioner consented to the violation of his rights since the respondent failed to adduce the alleged release agreement as signed by the petitioner. In the premises, the petitioner’s right to privacy was violated.
  5. The right to human dignity was the foundation of all other rights and together with the right to life, formed the basis for the enjoyment of all other rights, put differently therefore, if a person enjoyed the other rights in the Bill of Rights, the right to human dignity would automatically be promoted and protected and it would be violated if the other rights were violated. Respect for human dignity was the unifying constitutional principle for a society that was not only particularly diverse, but extremely unequal. That implied that the Bill of Rights existed not simply to ensure that the “haves” could continue to have, but to help create conditions in which the basis dignity of the “have nots” could be secured.
  6. By publishing the petitioner’s image being advanced a financial facility , the respondent violated the petitioner’s right to dignity .
  7. Award of compensation was an appropriate and effective remedy for redress of an established infringement of a fundamental right under the Constitution . The quantum of compensation would, however, depend upon the facts and circumstances of each case.

Petition allowed; the petitioner was awarded interests and costs.
Orders:

  1. A declaration was issued that the respondent violated the petitioner’s fundamental right to privacy and human dignity under articles 28 and 31 of the Constitution by publishing the petitioner’s image for purpose of commercial advertisements without his consent.
  2. An order of permanent injunction restraining the respondent from publishing and/or using the petitioner’s image and likeness in any way in its advertisements or promotions in any way without the petitioner’s consent and compelling the respondent to stop any further advertisement or promotions featuring the petitioner’s image and likeness on their pamphlets.
  3. Kshs 2,000,000.00 being damages for the violation of the petitioner’s right to dignity and privacy was awarded.
EVIDENCE LAW

Role of a court in examining an expert witness' testimony

George Karisa Fondo & 19 others v Said Ali Omar & 17 others [2021] eKLR
Petition No. 10 of 2016
Environment and Land Court at Malindi
JO. Olola, J
February 19, 2021
Reported by Kakai Toili

Download the Decision

Evidence Law – witnesses – expert witnesses – examination of expert witnesses - what was the role of a court in examining an expert witness' testimony.
Constitutional Law – locus standi – locus standi in environmental matters - what was the rationale for the waiver of the requirement to demonstrate locus standi in a suit relating to the protection of the environment – Constitution of Kenya, 2010, articles 42, 69(1)(a) and 70; Environment and Land Court Act, 2011, section 18; Environmental Management and Co-ordination Act, 1999.
Jurisdiction – jurisdiction of the Environment and Land Court Act – claim before the Environment and Land Court that a third party had information relating to unlawful conduct - what was the role of the court where an innocent third party had information relating to unlawful conduct.
Land Law – encroachment on land – encroachment by non-state agents -whether the State could be held liable for unlawful invasion perpetrated non-state agents.

Brief facts:
The petitioners contended that they were the owners of various parcels of land located on the northern bank of the Sabaki River. They averred that the 1st to 13th respondents had trespassed onto their parcels of land, cleared large sections thereof and denuded it of all vegetation upon which they commenced sand harvesting activities thereon. The petitioners asserted that when they met the 1st to 13th respondents with a view to discuss the enchroachment and illegal extraction of sand from their parcels of land, the said respondents became unruly and with the help of about 100 youth who were employed in the harvesting activities, they threatened to unleash violence upon the petitioners.
The petitioners were apprehensive that the illegal extraction of sand and the accompanying degradation of the land would continue to other portions of the Sabaki River Estuary thereby leading to an environmental disaster in the area. The appellant thus filed the instant petition seeking among others orders that a permanent order of injunction be issued restraining the 1st to 13th respondents, their servants and or agents from harvesting sand from the suit land.

Issues:

  1. What was the role of a court in examining an expert witness' testimony ?
  2. What was the rationale for the waiver of the requirement to demonstrate locus standi in a suit relating to the protection of the environment?
  3. Whether the State could be held liable for unlawful invasion perpetrated non-state agents .
  4. What was the role of the court where an innocent third party had information relating to unlawful conduct ? Read More...

Held:

  1. A reading of articles 42 and 70 of the Constitution of Kenya, 2010 (Constitution) made it clear, that one did not have to demonstrate personal loss or injury, in order to institute a cause aimed at the protection of the environment. The waiver of the requirement to demonstrate locus standi in a suit relating to the protection of the environment was necessitated by the recognition that the protection of the environment was not only for the benefit of the current generation but also for the generations to come.
  2. The court was enjoined under section 18 of the Environment and Land Court Act and section 3(5) of the Environmental Management and Co-ordination Act (EMCA) aforesaid, to be guided by the principle of intergenerational equity while dealing with environmental disputes. Section 2 of the EMCA defined intergenerational equity.
  3. Rivers all over the world were under immense pressure due to various kinds of anthropogenic activities among them indiscriminate extraction of sand and gravel which many at times was disastrous to the river’s ecosystem. Uncontrolled sand harvesting availability activities could lead to land degradation, low of and poor quality of water in the affected rivers. In recognition of such harmful consequences, article 69(1)(a) of the Constitution required the State to ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources as well as to ensure the equitable sharing of the accruing benefits.
  4. The 18th respondent had come up with the National Sand Harvesting Guidelines, 2007, (Guidelines) which required every county where sand harvesting activities took place to establish a technical sand harvesting committee. That committee was under the Guidelines mandated to ensure that sand dams and gabions were constructed in designated sand harvesting sites; that lorries were using designated access roads only to access the sites and that the sites were rehabilitated appropriately.
  5. The 15th respondent did not file any response to the petition and none of the other respondents provided any evidence that the Guidelines had been complied with and/or implemented within Kilifi County. However, the 1st to 13th respondents operated an unlicensed sand harvesting site and the 18th respondent had neither licensed the same nor carried out an environmental impact assessment of the activities being carried out on the site. The harvesting of the sand in the Sabaki River Estuary was not, prima facie, being done in a sustainable manner as envisaged under article 69(1) of the Constitution.
  6. There was nothing placed before the court to show that the police officers stationed at a roadblock a few meters from the turn off leading to the petitioner’s land had any prior knowledge of the illegal sand harvesting before it commenced and/or that any official report was made to the police and that they failed to act on the complaint.
  7. It was a fundamental principle of law that a litigant bore the burden (or onus) of proof in respect of the propositions he asserted to prove his claim. Decisions on violation of constitutional rights should not be made in a factual vacuum. To attempt to do so would trivialize the Constitution and inevitably result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights was not, a mere technicality; rather, it was essential for a proper consideration of constitutional issues. Decisions on violation of constitutional rights could not be based upon the unsupported hypothesis.
  8. The general constitutional and statutory duty of the Government or police to provide security to an individual citizen or his property only crystalized in special individualized circumstances such as where a citizen had made an individual arrangement with the police, or some form of privity existed or where from the known individual circumstances, it was reasonable for the police to provide protection for the person or his property. Otherwise, imposing a limitless legal duty to the Government to provide security to every citizen and his property in every circumstance would not only open floodgates of litigation against the Government but would also be detrimental to the public interest and impracticable in the context of Kenya.
  9. It was incumbent upon the petitioners to demonstrate that the police and other agents of the State had been negligent in the performance of their duties and or that they had breached any of their statutory or constitutional duties. There was no allegation, other than the fact that the police manned a nearby road-block that they knew in advance about the invasion of the 1st to 13th respondents into the petitioners’ properties and or that they were involved or complicit in the illegal activities therein. The petitioners knew and had identified the 1st to 13th respondents as the real perpetrators of the illegal activities in their properties.
  10. While the State had a constitutional obligation with regard to the protection and conservation of the environment, the State could not be held liable for the unlawful invasion perpetrated by the 1st to 13th respondents in the circumstances therein. The perpetrators were not agents of the State and the petitioners themselves had not placed anything before the court to demonstrate any measures if any that they took to protect the parcels of land allocated to themselves by the State from trespassers such as the 1st to 13th respondents.
  11. While the 15th respondent did not enter appearance and or respond to the petition, nothing was placed before the court to demonstrate that the 15th respondent had collected any cess from the site. There was no evidence of any cess levied by the 15th respondent at the site or anywhere else for that matter.
  12. From a copy of a letter dated February 24, 2016, written by the petitioners’ former advocates and addressed to the 15th respondent, it was evident that the parties had been engaged in some correspondence over the 1st petitioner’s parcel of land. A reading of the said letter informed the court that it was in response to a request from the 15th respondent to be provided with a list of the vehicles said to have extracted sand from the parcel of land. That was because neither the letter dated December 30, 2015, from the 15th respondent nor the petitioners advocate’s letter dated January 20, 2016, had been exhibited in the proceedings to enable the court to discern the clear contents thereof.
  13. From the tone of the letter dated February 24, 2016, the question as to whether or not the 15th respondent had collected any cess from the listed lorries remained at best speculative some four months before the petition was filed. It was not clear who had seen the lorries and made a record of the listed vehicles.
  14. The Norwich Pharmacal principles applied where an innocent third party had information relating to unlawful conduct and in such circumstances, the court was enjoined to compel such third party to assist the person suffering damage by giving them that information. There was however nothing placed before the court to demonstrate that the 15th respondent was possessed of such information.
  15. The valuation report dated July 30, 2018 did not give the source of the figures used by PW2 and it was not clear how he came to the conclusion on the number of tonnes of sand mined per day or even how he ascertained what he described as the fair market price for a ton of sand. The court was enjoined to examine the expert’s testimony in terms of its rationality and internal consistency in relation to all the evidence presented.
  16. The court could not just allow an expert to present his conclusion without presenting the analytical process by which the conclusion had been reached. There was no evidence to support the alleged quantity of sand mined, the alleged number of days of mining and the stated sum of Kshs 45,910,000.
  17. PW2 described himself as an expert property valuer and told the court he was a registered property valuer and a graduate in land economics and statistics. He was certainly neither a quantity surveyor nor an expert in environmental impact assessment. While his report was titled “Valuation Report of Sabaki Marereni Illegal Sand Mining and Extent of Destruction of Environment,” the court was not persuaded that he was skilled enough in the area of mining of sand or matters environment to be guided by his opinion.

Petition partially allowed; costs of and incidental to the petition to be borne by the 1st to 13th respondents.
Orders:

  1. A permanent order of injunction was issued restraining the 1st to 13th respondents, their servants and or agents from harvesting sand from the suit land.
  2. A permanent order of injunction was issued restraining the 1st to 13th respondents, their servants and/or agent or anyone of them from damaging the mud flats, the sand dunes, fresh water pools and marshes, brushy woodland, and the tidal land that formed the Sabaki River Estuary and its immediate environs.
  3. A judicial review order of mandamus was issued directed upon the 1st to 13th as well as the 18th respondents to prepare and file an environmental impact assessment report on the effects of the sand mining activities on the Sabaki River Estuary and its immediate environs within six (6) calendar months form the date thereof.
  4. An environmental restoration order was issued against the 1st to 13th respondents jointly and severally to, at their own cost restore the environment to as near as it could be to its original state prior to their actions complained of therein.
  5. An order of judicial review was issued directed at the 18th respondent requiring them to produce environmental management plan for the Sabaki River Estuary with a view to prevent and control degradation of the Sabaki River Estuary as provided under regulation 26 of the Environmental Management and Coordination (Wetlands, River Banks, Lake Shores and Sea Shore Management) Regulations, 2009.

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