It is trite law that the substantive application for judicial review orders upon the grant of leave to file it must apply or pray
for the specific orders for which leave was granted. Leave being a mandatory and prerequisite requirement, the application must comply
with the terms of the leave granted and the orders tally with those for which leave was granted.
Regarding the name of the First Respondent and whether the correct party has been sued, I would say that there can be no dispute that
the decision contained in the letter dated 5th February,2004 is that of the National Environment Management Authority. The Authority’s Board is merely an internal organ and
not a legal person or entity. Under the Environment Management Co-ordination Act of 1999, it is the First Respondent which is vested
and clothed with the legal capacity to be a corporate body. It is my view therefore that any reference to the National Environmental
Management Authority Board in the body of the application for leave and orders granted are a misnomer and a mere misdescription.
In any event, the naming of the parties in the heading of the application for leave and the orders granted are clear and properly
named and refer to the First Respondent.
With regard to the relief’s sought and upon perusal of the chamber summons dated 18th February, 2004 and the Notice of Motion dated 24th February, 2004, it is clear that no leave was sought by the Applicants to file an application for declaratory orders. This means that
the inclusion of declarations and/or declaratory orders in the application are improper and unlawful. In any case, the High Court
exercising its jurisdiction of judicial review as conferred by section 8 of the Law Reform Act, chapter26, Laws of Kenya has no jurisdiction
to consider applications for declaratory orders or to grant such orders. I do not agree with the Applicants submissions that the
High Court can invoke its powers under section 60 of the Constitution to grant declarations or declaratory orders in judicial review
proceedings. This court is guided and bound by the decision of the Court of Appeal in KENYA NATIONAL EXAMINATION COUNCIL –V REPUBLIC, EX PARTE GEOFFREY GATHENJI NJOROGE, AND OTHERS,
CIVIL APPEAL No.266 of 1996 in which the efficacy and scope of judicial review remedies in Kenya were judicially expounded.
(v) Paragraphs 39 and 40 of Professor Situma’s affidavit show that the application for judicial review is for the enforcement of
fundamental rights and freedoms enshrined in the Constitution of Kenya and an application for such enforcement should be under the Constitution (protection of Fundamental Rights and Freedoms of the Individual) Practice and Procedure Rules, 2001 (Legal Notice
No. 133 of 2001).
I have considered the submissions in support of the above mentioned ground and the reply. I have also carefully perused the Notice
of Motion dated 24th February, 2004 and the statutory statement. The Applicant’s seek orders of Prohibition, three orders of Certiorari and three orders of Mandamus. I have already dealt with the orders of declarations. The three orders of prohibition, certiorari and mandamus are judicial review
orders and remedies.
The Applicants have referred to the decisions sought to be quashed by orders of certiorari as unlawful, adverse and unconstitutional.
Strictly, the Applicants need not have described the decisions of the First and Second Respondents in these terms. However, having
used these terms, and in particular referring to the decisions as “inter alia unconstitutional” does not make their application
as one seeking the enforcement of Fundamental Rights and Freedoms under the provisions of section 84 of the Constitution. What are
important are the remedies sought and the basis or grounds for seeking them. We have already seen that the substantive remedies sought
are orders of prohibition, certiorari and mandamus. All these are judicial review remedies as envisaged by the Law Reform Act and
Order 53 of the Civil Procedure Rules.
In my view, the statutory statement in the substantive pleading in judicial review proceedings. The Notice of Motion is merely the
legal or procedural vehicle for commencing the proceedings and bringing the statutory statement before the court. The reliefs sought
and the ground is in the Notice of Motion and the statutory statement must be consistent and tally with each other. I find that the
orders sought in the Notice of Motion and the statutory statement are similar.
What of the grounds? If the grounds set out in the application refer to and allege the violations of Fundamental Rights and Freedoms
as protected by the provisions of sections 70 to 83 (inclusive) then one could rightly claim that the application seeks the enforcement
of substantive constitutional rights. The grounds set out in the application and the statutory statement are as follows;-
a) The acts by the Respondents are arbitrary and ultra vires the Local Government Act, Town Planning Act and Environment Management Coordination Act.
b) The acts of the Respondents are illegal, unconstitutional arbitrary and oppressive.
c) The acts of the Respondents are contrary to the law and public policy.
d) The Respondents’ acts are activated by malice and irrelevant considerations
e) The Respondents’ acts are in breach of the Rules of Natural Justice.
f) The Respondents have illegally acted as judges in their own cause.
g) The remedies prayed for will stop the Respondents from abusing their powers.
h) The Applicants shall suffer grave irreparable business loss and loss of income if the business premises are closed down.
i) The said loss cannot be compensated for and or adequately compensated by way of damages.
Apart from the reference to the term “unconstitutional” in Ground (b), I do hold that all the grounds and/or basis for
the application in Grounds (a), (b), (c), (d), (e), (f) and (g) are founded on Administrative law and judicial review principles.
Grounds (h) and (i) are alleged consequential damage or injury that the Applicants claim they will suffer as a result of the implementation
of the decisions by the First and Second Respondents. The Applicants have invoked principles or grounds of:-
o
Arbitrariness
o
Oppression
o
Violation of law and public policy
o
Breach of Rules of Natural Justice,
o
Respondents acting as judges in their own cause
o
Abuse of power
in respect of the decisions being challenged. These are well established principles and motions of administrative law which if alleged
and proven to exist, would make decisions of the First and Second Respondents amenable to judicial review.
It is true that the Applicants and in particular the verifying affidavit of Mr. Hamed Ehsani (paragraphs 47 and 48), have invoked
the provisions of section 77 (4) of the Constitution. However, this reference does not constitute or make the application before
the court to be a constitutional reference for the enforcement of Fundamental Rights and Freedoms. It is my view that many breaches
of the due process, Principles of Good Governance and violations of the express provisions of statutory provisions and law often
lead to or have the effect of violating the Fundamental Rights and Freedoms of the individual. However, what is important as far
as the jurisdiction of the court and the legal procedures are concerned is the manner in which the proceedings have been commenced
and the remedies that are sought. Judicial review to me is a judicial process to protect and enhance Due process and the Rule of
Law. These are ultimately underpinned in the Constitution. However, judicial review strictly does not amount to enforcement of the
Bill of Rights (Chapter 5 of the Constitution). This is expressly provided for in section 84 of the Constitution.
In conclusion on this point, references and the opinion of the deponent of the verifying Affidavit invoking the provisions of the
Constitution do not by themselves, make an application for judicial review to be a constitutional reference. In any case, the reliance
on the Constitution is contained in only a few paragraphs and does not affect the nature of the proceedings.
(vii) The application for judicial review is incompetent, frivolous and vexatious of the National Environment Management Authority
and an abuse of the process of the court and is prematurely in court as there has been no appeal to the Natural Environment Tribunal
in the first instance as required by section 129 of the Environmental Management Co-ordination Act, 1999. See paragraphs 50, 51,52,53
and 54 of Professor Situma’s affidavit already referred to herein.
Section 129 (1) and (2) of the National Environmental Management Co-ordination Act provides as follows:-
“ Section 129 (1) any person who is aggrieved by:-
(a) -
(b) -
(c) -
(d) -
(e) the imposition against him of an environmental restoration order or environmental improvement order by the Authority under this
Act or regulations made thereunder:
may within sixty days after the occurrence of the event against which he is dissatisfied, appeal to the Tribunal in such manner as
may be prescribed by the Tribunal.
(2) Unless otherwise expressly provided in this Act, where this Act empowers the Director-General, the Authority or Committees of
the Authority to make decisions, such decisions may be subject to an appeal to the Tribunal in accordance with such procedures as
may be established by the Tribunal for that purpose.”
This provision does not oust the jurisdiction of the High Court of considering applications for judicial review of the decisions of
the National Environmental
Management Authority. However, it is an arguable point of law whether the existence of this statutory or alternative remedy in law
precludes the Applicants from coming to the High Court to seek judicial review orders. The Respondents are entitled to argue that
the Applicants are so precluded or barred. This is quite different from a claim that this court has no jurisdiction to hear the application
by virtue of section 129 of the Act. I see no ouster of the court’s jurisdiction. The Ex parte Applicants may well be entitled
to argue that the right of appeal can only be exercised if there was due process before the decisions were reached and that an inquiry
of the manner in which the decisions were reached can only be fairly inquired into by the High Court by way of judicial review. It
is deemed that when the court grants leave then it has found that the application in its entirety discloses an arguable case for
judicial review. This decision is made by the Judge hearing the application for leave and in exercise of his/her discretion. As a result, the right or appropriate time to raise this issue is at the hearing of the substantive application. The grant of leave
cannot be set aside or application dismissed by way of an interlocutory application, to in effect, strike out the substantive application
on this ground before the hearing on its merits.
Having considered the three jurisdictional grounds in the application, I do hereby find on the basis of the foregoing, that the grounds
must fail and hold that this court has jurisdiction to entertain and consider the notice of motion. This now brings me to the other
grounds in the application namely, Grounds (ii),(iii) and (vi). Ground (i) does not disclose any specific ground but merely relies
on the Replying Affidavit filed by the First Respondent in respect of the substantive application.
(iii) At paragraph 8 the affidavit shows that there is to date no extracted and perfected order for leave and stay in these proceedings.
This is a matter that can be resolved on the basis of the court record. Upon perusal of the court record/file, I have seen a sealed
and signed order of this court issued on 19th February, 2004. It is duly signed by the Deputy Registrar. This court has not been told whether this order was ever served on the
Respondents or not. The First Respondent has alleged that it was served with a handwritten order and notes of the judge granting
leave. As the Applicant/First Respondent has not taken issue with the question of service in grounds in the application, the matter
shall rest there. There are allegations in First Respondent written submissions that the Ex parte Applicants have not filed an affidavit
of service showing that all concerned and affected parties have been served as required by Order 53, Rule (3) of the Civil Procedure
Rules. However, this point is not part of the list of grounds set out in the application. It is trite that one must set out the grounds
on which an application is founded and the statements of fact in the affidavit must be confined to the disclosed grounds. It follows
therefore
