IN THE MATTER OF THE ESTATE OF THE LATE MORUMBWA MOGONGO NYARINGO ....DECEASED AND RICHARD MASESE MORUMBWA ...APPLICANT VS ESTHER KERUBO MORUMBWA ....RESPONDENT

1. The Petitioners herein filed a constitutional Petition dated 7^th February, 2024 against the Respondents herein claiming that the Respondents had without conducting public participation or any notice to them introduced a cess of Ksh 80,000,000.00 against one tonne of murram and soapstone up from Kshs. 1000. The Petitioners alleged too the Respondent have embarked on illegalities and irregularities against the petitioners wherein they have started to levy illegal, unconstitutional cess of ksh 10,000 per tonnage of soapstone carried by 1 motor bike and same amount against Tuktuk knowing that a motor bike cannot carry 1 tonne of raw soapstone and/ or murram.
2. They claimed too that the cess imposed by the Respondent is unfair, disproportional, irregular as vehicles carrying raw soapstone of over 20 tonnes are charged the same as vehicles carrying 1 tonne, 2 tonnes, 3tonnes, 4tonnes,Stonnes,6 tonnes, 7 tonnes ,8 tonnes ,9 tonnes,10 tonnes, 11 tonnes 12 tonnes, 13 tonnes, 14 tonnes ,15 tonnes,16 tonnes, 17 tonnes,18 tonnes and 19 tonnes respectively all at ksh 10,000 each. They claimed further that as a result of the new levies, the respondents have impounded several vehicles carrying the raw soapstone and some carrying murram. It was their claim too that the new levies amounted to double charging on the given that the Petitioners are always expected to pay transportation permit at Kshs 10,000 which is separate from the new levies.
3. Equally they claimed that  on 1^st February, 2024 the respondents served them with  notices alleging that they had violated laid down Environmental management regulations and laws as stipulated in EMCA 1999(as amended 2015), sustainable solid waste Management and The Kisii Finance Act; that the respondents entered into their mining zones and ordered them to stop all activities at soapstone mining site until they acquire EIA License, county licenses, conduct proper public participation with mobilization of county government and to visit the county government offices on 2^nd February, 2024 by 9am; that on the same breath the Respondents unlawfully entered the place where the vehicles were kept while they were not working and without reason and or cause, unlawfully impounded some vehicles which included KCY 977Y, KDL 438 Land A tractor KHMA 142 J  and are now demanding for impounding fees of Kshs. 50,000 each,  that the respondents who were not ready to listen to them despite them showing them that they had been shown copies of the permits issued them by the 1^st respondent; that they showed receipts paid to NEMA for the EIA license which had been completed and awaited hand over but still continued to impound the their vehicles.
4. They contended that the actions of the respondents amounted to an abuse of Articles 10 and 232 and 73 of the constitution of Kenya. They decried that the respondents who did not serve any notice on them before impounding their vehicles while not working acted irrationally, illegally and or unreasonably and that the respondents' actions violated the principles of fair administrative action. They underscored that that the Respondent ought to be compelled to release the vehicles to the applicants and also not to interfere with the harvesting of soapstone They underscored two that there is no other internal mechanism that can be used to resolve this problem except this court.
5. According to them the respondents are state officers bound by Articles 10 and 232 of the constitution and further enjoined by Articles 73 and 47 of the constitution to which they owe an explanation but which they never gave and may never give. It was their strong belief that they have demonstrated that the existence of a legal right to the performance of a legal duty; that the legal duty placed on the officers of a public nature; that the party against whom a compelling order have failed, despite the demand, to perform the legal duty to the detriment of the party who has the legal right to expect the performance.
6. They revealed that the 3^rd Petitioner is the legal and registered owner of motor Vehicle registration KDL 438L as well as KCY 977Y, while the tractor KHMA 142J is a vehicle they had hired from its registered owner who is now demanding to be paid for the number of days the tractor is impounded from 3.2.2024 making sum of Kshs. 75,000 per day.
7. The Petitioners prayed for the following orders;
8. Spent
9. Spent
10. That pending the hearing and determination of this petition, this honorable court be pleased to grant a temporary injunction restraining the respondents by themselves, their agents, employees or any other person acting under any of their instructions from arresting and or impounding and or detaining the petitioners' vehicles used in the transportation of raw materials namely: murram from Marani Sub county and detaining them, harassing, intimidating, and/or frustrating the murram harvesting and transportation activities by the petitioners from and within the Kisii County Government boundaries or in any way whatsoever deal with the petitioners, their agents, employees and motor vehicles used in the said business without an order of the court.
11. That pending the hearing and determination of this application, this honorable court be pleased to order the immediate unconditional release of the petitioners' motor vehicles KCY 977V, KOL 438 L and A tractor KHMA 142 J and or any motorbike, tuktuk illegally seized, impounded and detained whilst petitioners have licenses and been paying for collection of raw soapstone, processed soapstone and terrazo as agreed at ksh 1000 per vehicle unlike the mega\ cess charge of ksh. 80,000,000.00 now imposed on the petitioners by the respondents' illegal cess of ksh 80,000,000.00 per 200 vehicle of 20 tonnes at ksh 10,000 per tonne charged by KisiiCounty Government on every motor bike , tuktuk at ksh 10,000 per tonne on raw soapstone, processed soapstone and soapstone terazzo knowing amotor bike and or tuktuk cannot carry capacity of 1 tonne or more .
12. That pending the hearing and determination of this petition, this honorable court be pleased to order the immediate unconditional release of the petitioners' motor vehicles KCY 977Y, KDL 438 L and A tractor KHMA 142 J and or any motorbike, tuktuk illegally seized, impounded and detained whilst petitioners have licenses and been paying for collection of raw soapstone, processed soapstone and terrazo as agreed at ksh 1000 per vehicle unlike the illegal cess charge of kshs. 80,000,000.00 now imposed on the petitioners by the respondents' illegal cess of ksh 80,000,000.00 per 200 vehicle of 20 tonnes at ksh· 10,000 per tonne charged by Kisii County Government on every motor bike, tuktuk at ksh 10,000 per tonne on raw soapstone, processed soapstone and soapstone terazzo knowing amotor bike and or tuktuk cannot carry capacity of 1tonne or more.
13. That pending the hearing and determination of this application on the interpretation of and whether the imposition of KSh. 80,000,000.00 up from KSh. 1,000 is not illegal and unconstitutional, this honorable court be pleased to order the immediate unconditional release of the petitioners' motor vehicles KCY 977Y, KDL 438 L and A tractor KHMA 142 J and or any motorbike, tuktuk that may have been illegally seized, impounded and detained upon the imposition of the Ksh 80,000,000.00 as cess whilst petitioners have licenses and been paying for collection of raw soapstone, processed soapstone and terrazo as agreed at sh 1000 per vehicle unlike the illegal cess charge of Ksh. 80,000,000.00 now imposed on the petitioners by the respondents' illegal order of a cess of Ksh 80,000,000.00 per 200 vehicle of 20 tonnes at Kshs. 10,000 per tonne charged by Kisii County Government on every motor bike , tuktuk at Kshs.10,000 per tonne on raw soapstone, processed soapstone and soapstone terazzo knowing a motor bike and or tuktuk cannot carry capacity of 1 tonne or more.
14. A declaration that the imposition of Ksh 80,000,000.00 by the respondents for a 200 tonne motor vehicle carrying murram and/or raw soapstone and terrazzo and /or processed soapstone is abnormal, illegal and unconstitutional and null and void.
15. A declaration that the imposition of Kshs 10, 000.00 per tonne for all classes of goods in the Kisii finance act 2023/24 under schedule 3 nos. 1 to 8 is disproportionate, illegal and unconstitutional and contrary to national economic policies and therefore null and void.
16. An interpretation whether cess for farm produce also includes murram and soapstone as alleged by the Kisii county finance act 2023/24 financial year and whether transportation fee is not the same as cess charges.
17. An order of judicial review in the nature certiorari to bring into this court for purposes of quashing, schedule 3 items 1 to 8 in the Kisii Finance Act 2023/24 for being illegal unconstitutional and null and void.
18. An order of judicial review in the nature of certiorari to bring into this court for purposes of quashing improvement notices served on the petitioners for being Illegal, ambiguous and unconstitutional.
19. An order of judicial review in the nature of certiorari to bring into this court for purposes of being quashed, the section of cess declaring murram and soapstone as cess on farm produce.
20. A declaration that the cess charge of Kshs. 80,000,000.00 demanded to be paid by the petitioners to the Kisii county Government per a 200 motor vehicle is unfair, disproportional, irregular as vehicles carrying raw soapstone of over 20 tonnes are charged the same as vehicles carrying 1 tonne, 2 tonnes, 3tonnes, 4tonnes,Stonnes,6 tonnes, 7 tonnes, 8 tonnes ,9 tonnes,10 tonnes, 11 tonnes 12tonnes, 13 tonnes, 14 tonnes, 15 tonnes,16 tonnes, 17 tonnes,18 tonnes and 19 tonnes respectively all at Kshs.10,000 each.
21. An order of judicial review in the nature of prohibition, prohibiting the arbitrary seizure, impounding and detaining the petitioners' motor vehicles and tractors without a court order and further prohibiting the respondents from harassing intimidating the petitioners their employees and agents while harvesting the soapstone and or murram or any other service or goods.
22. Any other order to this court may appear just and expedient to grant in the circumstances of this case.
23. The cost of the Petition be borne by the respondents.
24. Together with the Petition the Petitioners under certificate of urgency filed an Application seeking similar orders sought in the Petition and based on the same grounds upon which this Petition is based.
25. In Response the Application filed grounds of opposition to dated 15^th March, 2024  The Respondents aver that;
26. The Application herein is incurably defective, an afterthought and an abuse of the Court process and merely meant to vex and unnecessarily drag the Respondents to court.
27. The Honourable Court lacks the jurisdiction to hear and determine the instant Application by virtue of the provisions of Articles 162 (2) (b), and 165 (5) of the Constitution of Kenya, 2010
28. The Honourable Court lacks the jurisdiction to hear and determine the instant Application by virtue of the provisions of Section 13 of the Environment and Land Court Act, 2012.
29. The instant Application is incurably defective, bad in law, and an abuse of the Court process as the Applicants are seeking FINAL RELIEFS at an interim stage.
30. The instant Application does not meet the threshold for the grant of final reliefs at an interim stage and the Applicants have not demonstrated exceptional circumstances for the grant of final Orders at an interim stage.
31. The Honourable Court lacks jurisdiction to hear and determine the Application as the Court is being invited to render an ADVISORY OPINION, which is the preserve of the Supreme Court of Kenya pursuant to Article 163 (6) of the Constitution of Kenya,
32. 2010.
33. the Applicants are guilty of material non-disclosure and they have concealed the fact that their various Motor vehicles were released to them.
34. THAT the Orders sought are ambiguous, vague, and open ended and seek to curtail the County Government of Kisii from discharging its mandate on the enforcement of the Kisii County Government laws, Regulations and By-Laws.
35. The grant of the Orders sought would be an affront to the doctrine of separation of powers and the Court is being invited to encroach on the mandate of the Legislative and Executive arm of the County Government of Kisii.
36. The Respondents thus urged this court to dismiss application with cost.

ANALYSIS AND DETERMINATION

1. I have considered the Notice of Motion Application before me, the replying affidavit and the grounds of opposition filed by the Respondents in response to the Application as well as the submissions filed by the submission exhaustively. The Main issue of determination is whether this court has Jurisdiction to hear and determination of the dispute presented before it by the Petitioners. Nyarangi, JA (as he then was) had this to say regarding the issue of Jurisdiction in the case of Owners of the Motor Vessel “Lillian S’ v. Caltex Oil (Kenya) Ltd [1989] KLR 1;

“…Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

1. In Republic vs. Karisa Chengo & 2 Others [2017] eKLR, the Supreme Court held as follows:

“By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter or commission under which the Court is constituted, and may be extended or restricted by like means. If no restriction or limit is imposed, the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular Court has cognizance or as to the area over which the jurisdiction shall extend, or it may partake both these characteristics…where a Court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.”

1. In Kibos Distillers Limited & 4 others vs. Benson Ambuti Adega & 3 others [2020] eKLR, the Court of Appeal held as follows:

“A party or litigant cannot be allowed to confer jurisdiction on a Court or oust jurisdiction of a competent organ through the art and craft of drafting pleadings. Even if a Court has original jurisdiction, the concept of original jurisdiction does not operate to oust the jurisdiction of other competent organs that have legislatively been mandated to hear and determine a dispute. Original jurisdiction is not an ouster clause that ousts the jurisdiction of other competent organs. Neither is original jurisdiction an inclusive clause that confers jurisdiction on a Court or body to hear and determine all and sundry disputes. Original jurisdiction only means the jurisdiction to hear specifically constitutional or legislatively delineated disputes of law and fact at first instance. To this end, I reiterate and affirm the dicta in Speaker of the National Assembly v. James Njenga Karume [1992] eKLR where it was stated that where there is a clear procedure for the redress of a particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.”

1. The Respondent contends that the issues raised in the Petition and in the Application are issues that ought to be heard and determined by the Environment and lands court by virtue of the provisions of Section 13 of the Environment and Land Court Act, 2012 which provides as follows;

(1) The Court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.

(2) In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the Court shall have power to hear and determine disputes―

(a) Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;

(b) Relating to compulsory acquisition of land;

(c) Relating to land administration and management;

(d) Relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and

(e) Any other dispute relating to environment and land.

(3) Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.

(4) In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.

(5) Deleted by Act No. 12 of 2012, Sch.

(6) Deleted by Act No. 12 of 2012, Sch.

(7) In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just,

including―

1. Interim or permanent preservation orders including injunctions;

(b) Prerogative orders;

(c) Award of damages;

(d) Compensation;

(e) Specific performance;

(f) Restitution;

(g) Declaration; or

(h) Costs.

1. The crust of this Petition is that the Petitioners have serious issues with the new cess charges that the Respondents have introduced in order to regulate the transportation of raw and processed soapstone and murrum which according to them are disproportionate, illegal and unconstitutional. They claim that their vehicles have been impounded based on allegations that the Petitioners have violated the laid down regulations and laws as stipulated in the Environment Management and Coordination (Amendment) Act of 2015 (EMCA) specifically mining of Minerals on site measuring  10 feet by 100 feet without Environment Impact Assessment certificate and a county Licence. They claimed the Respondent ignored the receipts they showed to them that in deed they had paid for the EIA Licence to National Environment Management Authority (NEMA).
2.   As clearly outlined under section 13 of the Environment and land Court Act highlighted above especially 13 (2) (a) it is the environment and land court and this court that has Jurisdiction to  hear and determine issues relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources.
3. Further the Environment Management Coordination Act provides under section 129 that matters relating to EIA licenses and amounts payable to carry out mining, fees paid for transportation of minerals ought to be determined by the National Environment Tribunal (NET) established under Section 125 (1).  The Act under section 130 gives the Environment and land Court the jurisdiction  to hear and determine all appeals from the tribunals. Given that the Petitioner is aggrieved by the impounding of his vehicles for violation of the EIA regulations under the EMCA Act and by the  alleged new levies that the Respondents have imposed, the first call of action should be the NET and then the Environment and Land court as the Appellate court. Article of the constitution bars the High Court from ursurping the powers of the courts of equal status .
4. Article  165 of the constitution provides that -

1. It is clear that the said Article bars the High Court from usurping the jurisdiction  of the courts of equal status .
2. This court therefore has no Jurisdiction to deal with issues raised in this Application and by extension and therefore it shall proceed to down its tools.
3. I thus proceed to strikeout  the Petition and Applications with  no orders as to cost.
4. It is so ordered.

Delivered virtually Via teams Platform in the presence of ;

Court Assistant -Oigo

N/A for  Petitioner

Ochieng Oginga for Respondents