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RULING: Constitutional and Human Rights Petition 268 of 2018 & 251 of 2017 on amendments to the Environment Management and Co-ordination Act No. 8

 
[2]  The Petitions are still pending. This ruling is in respect of three applications for joinder. The applications are opposed and supported in equal measure.
 
 

THE APPLICATIONS:

[3]  All the applications are by way of Notices of Motion. They are the Notice of Motion dated 28th July, 2020 filed by Stallion Civil Works Ltd, the 12th Intended Interested Party (hereinafter refer it to as ‘the Stallion Application’), the Notice of Motion dated 20th April, 2018 filed by Patrick Mokaya, Beatrice Njeru, Munene Gitonga and Alfetta Koome, the 13th, 14th, 15th and 16th proposed Interested Parties respectively (hereinafter refer it to as ‘the Mokaya Application’) and the Notice of Motion dated 8th July, 2020 filed by Edermann Property Limited, the 17th Intended Interested Party (hereinafter refer it to as ‘the Edermann Application’).
 
[4] The Stallion application prays for the following orders:
  • That the Honourable Court be and is hereby pleased to certify this application as urgent, hear it ex-parte and grant the prayers sought herein;
  • That, the Honourable Court be and is hereby pleased to issue an order joining and/or admitting Stallion Civil Works Limited, as n interested party in this petition; for the limited and specific purpose of allowing the Stallion Civil Works Limited, canvass the instant Application; and, seek an interpretation and/or clarification of the legal effect and import to current proceedings being instituted and pending before the national Environment Tribunal, of the conservatory orders grated by the Hon. Lady Justice W. A. Okwany on 24th September, 2018.
  • That the Honourable Court be and is hereby pleased to issue an Order interpreting and/or clarifying, that the legal effect and import of the Conservatory order it had issued on 24th of September, 2018 herein, does not amount to, mean, have effect of, or in any way howsoever serve to revive, re-enact or otherwise resuscitate the application of the repealed Section 129(4), Environment management Co0ordiation Act, 1999, as enacted in 1999 and amended in 2017 by Section 29 of the prevention of torture Act, 2017 or any way give the Honourable National Environmental Tribunal the powers to issue or confer automatic stop orders upon filing of an Appeal before the Hon. Tribunal.
  • That the Honourable Court be and is hereby pleased to issue an order declaring that application of the repealed provisions of Section 129(4), Environment Management Co-ordination Act, 1999 by the National Environment Tribunal to confer, grant, issue or award any automatic stop orders, on application of the Conservatory order granted herein is null and void; and, the Appellants currently enjoying such orders be at liberty to move the Hon. Tribunal under Section 129(3)(d), Environment Management Coordination Act, 1999 and any other enabling provision for a consideration for the grant of appropriate injunctive and/or status quo orders if at all merited upon well-established principles of granting injunctive reliefs or orders.
  • That the Honourable Court be pleased to issue any further Orders as may be necessary to give effect to the prayers sough herein.
[5]  The application is supported by the Affidavit sworn by James Njoroge Mwangi on 28th July, 2020. The Applicant filed written submissions together with a List of Authorities dated 15th September, 2020 in support of the application. It also filed Grounds of Opposition upon service of the responses to the Stallion Application.
 
[6]  The Mokaya application prays for the following orders: –1.That this application be certified urgent and be heard ex-parte in the first instance.2.That leave be granted to Patrick Mokaya, Beatrice Njeriu, Munene Gitonga and Alfetta Koome to be enjoined in this Petiton as interested parties.3.That there be no orders as to costs in any event.
 
[7]  The application is supported by the Affidavit sworn by Patrick Mokaya on 20th April, 2018. The Applicants did not participate in the hearing.
 
[8]  The Edermann application prays for the following orders:
  • That this application be certified urgent and heard ex-parte in the first instance.
  • That Erdermann Property Limited be enjoined as an interested party to this petition.
  • That the Honourable court be pleased to vary and/or set aside conservatory orders of 27th September, 2018 suspending all the selective amendments effected to Section 129(4) of the Environment Management and Co-ordination Act 1999 by the Statute law (Miscellaneous Amendment) Act, 2018 (No. 4 of 2018) pending he hearing and determination of this application.
  • The Honourable Court be pleased to issue an order allowing the amendments effected to Section 129(4) of the Environment management and Co-ordination Act 1999 by the Statute law (Miscellaneous Amendment) Act, 2018 (No. 4 of 2018) to take effect forthwith.
  • That costs of this Application be provided for.
[9]  The application is supported by the Affidavit sworn by Zuyen Yang on 8th July, 2020. The Applicant filed written submissions together with a List of Authorities both dated 7th October, 2020.
 
a. The Responses:
[10]  The applications are wholly opposed by the 1st and 2nd Petitioners as well as the 10th Interested Party. The 1st Interested Party only opposed the setting-aside of the conservatory orders.