KENYA SCHOOL OF LAW

ADVOCATES TRAINING PROGRAM

ATP 2022/2023

CIVIL LITIGATION

COURSE CODE: ATP 100

PROJECT WORK

CLASS C FIRM 3

COURSE INSTRUCTOR: Mr. GAD K. GATHU

Date of Submission:

Friday, 9th September 2022

LIST OF MEMBERS AND SIGNATURES

NO. NAME REG. NO. SIGNATURE

1. BARAZA YURI 20220187

2. OMAR KHADIJA YUNIS 20221389

3. IGERIA LORRAINE WAMUCII 20220518

4. MUGENDI ANNET NKINGA 20220072

5. MWANGI LEAH 20221425

6. HAGOI HARRIETTE ALUOCH 2022665

7. MOHAMED ABDIJABAR 20220526

8. NJENGA MAUREEN 20220749

NYAMBURA

9. WANJIKU SAMUEL MBURU 20221157

DECLARATION
We, as members of Firm 3-C, declare THAT this project work is our original work and THAT

the

same has not been produced anywhere for assessment or any other academic or non-

academic purposes.

FIRM LEADER: BARAZA YURI

SIGNATURE......................................................DATE..................................................

SECRETARY: OMAR KHADIJA YUNIS

SIGNATURE....................................................... DATE...................................................
QUESTION 1

Justiciability is defined as capacity to claim a right before a tribunal. The origins of the doctrine
of Justiciability can be traced back to Marbury v Madison where the Supreme Court decided on
parameters within which it could decide on issues. Justice John Marshall stated THAT "The
province of the Court is, solely, to decide on the rights of individuals, not to inquire how the
executive, or executive officers, perform duties in which they have a discretion."

For a matter to be considered justiciable, the Court must not be offering an advisory opinion, the
plaintiff must have standing, and the issues must be ripe but neither moot nor violative of the
political question doctrine. Typically, these issues are all up to the discretion of the Court which
is adjudicating the issue.

In Mwende Maluki v CS Ministry of Foreign Affairs (2019) eKLR, the Court held THAT the
justiciability doctrine requires THAT Court’s and tribunals, at the earliest opportunity, should
consider whether a set of facts placed before them espouse proper question for determination. It
requires THAT Courts should only decide cases which invite "real earnest and vital
controversy." In the case of Wanjiru Gikonyo & 2 others vs National Assembly of Kenya &
4 others (2016) eKLR, Late Hon. Justice Onguto, (decided) THAT the justiciability dogma
prohibits the Court from entertaining hypothetical, political or academic interest cases. The
Court is therefore not expected to engage in abstract arguments. THAT the Court is prevented
from determining an issue where it is too early or simply out of apprehension. THAT an issue
before the Court must be ripe, through a factual matrix, for determination.

Justiciability is comprised of two fundamental aspects namely: the normative justiciability and
the institutional justiciability.

Normative Justiciability
It resolves the question of whether there are legal standards THAT are sufficient to resolve a
disagreement before the Court. It considers whether there is any (at least one) legal answer to
every legal question.

Institutional Justiciability

It boils down to deciding whether the Court is the appropriate power to resolve a particular
dispute, or whether another institution, such as the legislative or executive authorities, is more
suited to do so. Institutional justiciability itself bears two aspects: a material aspect and an
organic aspect.' The material element is concerned with the question of whether the Court should
adjudicate the dispute's subject matter. The organic aspect, which is especially pertinent in cases
involving petitions against the legislative branch, is concerned with whether it is suitable for the
Court to rule on the legality of the activities of the state organ against whom the legal petition
has been filed.

Judicial Activism

Judicial activism is a philosophy THAT asserts THAT judges can and should creatively
interpret the wording of the law to serve their own perceptions of contemporary society's needs.
The Black’s Law Dictionary defines judicial activism as the philosophy of judicial decision
making whereby judges allow their personal views about public policy, among other factors to
guide their decisions1[1]

Judicial activism traces back before the 20th century, it was regarded as the concept of judges
making positive law.

The term was coined by Arthur Schlesinger in 1947. However, the term was ambiguous as it did
not have a clear meaning as to what amounts to judicial activism and what does not and it was
not clear whether it was a positive or negative concept. Despite these inadequacies, the term still
grew due to the introduction of federal Courts scholarship.2
1
Black’s Law Dictionary https://1.next.westlaw.com/Browse/Home/SecondarySources/BlacksLawDictionary?
originationContext=typeAhead&transitionType=CategoryPageItem&contextData=(sc.Default) accessed 14 June
2022.
2
Measuring Judicial Activism (9th edn, Oxford University Press, Inc. 2022) https://books.google.co.ke/books?
hl=en&lr=&id=TfdQEAAAQBAJ&oi=fnd&pg=PR7&dq=measuring+judicial+activism&ots=T6OQvGPqDW&sig=myeTU
NcjLu4_Z4RPe6eT_EBAwv0&redir_esc=y#v=onepage&q=measuring%20judicial%20activism&f=false accessed 15
June 2022.
However, the concept of judicial activism had started prior to Arthur Schlesinger putting a name
to it. During the Lochner era, the Courts exercised judicial activism and an instance is the
development of a constitutional right to contract. The Courts also created a framework of federal
general common law meant to govern disputes between states on commercial torts.

The concept of judicial activism has evolved gradually over the years and is more common in the
present time. A recent case of Courts exercising judicial activism in Kenya was in the Supreme
Court’s judgement in Petition no. 5 of 2013 where the ruling was not entirely founded on
jurisprudence.3

Is judicial activism positive or negative?

This concept has, over time, met criticism from members of the public. In some instances,
judicial activism has been misconstrued to mean judicial error. This involves misinterpreting
statutes, and facts and/or ignoring precedent. However, these are judicial errors and they are not
necessarily caused by nor do they amount to judicial activism. These errors are more attributed to
incompetence.4

Another form of negative judicial activism is the abuse of office and power by the Court.

The Constitution of Kenya provides for the role of the judiciary. Chapter 10 of the Constitution
of Kenya provides for the judiciary, establishes the various Courts in Kenya and spells out their
mandate and jurisdiction.5 Therefore, if a Court and/or judge were to violate the limit set for their
powers as provided in the constitution, they would be overriding the law hence becoming a
negative form of judicial activism.

Lastly, a negative form of judicial activism can manifest if the Courts meddle with the
administrative sector which results in judicial overreach hence interfering with the concept of
separation of powers.

3
Full-Judgement-Petition-No-5-of-2013-Judgement-Final-2-April-16-ϮϬϭϯ.pdf͛ accessed 14th June 2022.
4
Measuring Judicial Activism (9th edn, Oxford University Press, Inc. 2022) https://books.google.co.ke/books?
hl=en&lr=&id=TfdQEAAAQBAJ&oi=fnd&pg=PR7&dq=measuring+judicial+activism&ots=T6OQvGPqDW&sig=myeTU
NcjLu4_Z4RPe6eT_EBAwv0&redir_esc=y#v=onepage&q=measuring%20judicial%20activism&f=false accessed on
15th June 2022.
5
Constitution of Kenya 2010 (Chapter 10)
On the other hand, the concept is deemed to be positive as it is attributed to civil rights activism
as opposed to the Court and/or judges misusing their power and authority.6

INDIA

In India, judicial activism involves the Supreme Court and high Courts analyzing and declaring
the unconstitutionality of rules and regulations THAT are inconsistent with constitutional
provisions.7

In Sheela Barse v State of Maharashtra, a female journalist conducted an interview on female

prisoners in Maharashtra State Jails with the permission of the Inspector General of Prisons.
However, when she started recording her interviews with the prisoners, the permission was
withdrawn. Aggrieved by the jail authorities’ decision, the journalist wrote a letter addressed to
the Supreme Court which was adopted as a writ petition. The petition was under article 19(1)
which provides for the protection of rights regarding freedom of speech and article 21 of the
Constitution which provides for the protection of life and personal liberty. In a sworn affidavit,
the Inspector General of Prisons stated THAT the permission had been withdrawn since it was
illegal. The Respondent also stated THAT the Petitioner had no entitlement to conduct
unsupervised/uncontrolled interviews and THAT the information gathered should have been
verified by the authorities first to avoid publication THAT would taint a bad image of the prison.

The Court held THAT prisoners should be allowed public access because the right in article 21
is also granted to prisoners hence deeming interviews necessary for the collection of information
on the prison and the prisoners’ conditions.

The petitioner was then granted leave to make an application to the jail authorities to conduct the
interview which was to be handled in line with morality, order and public decency. The
interview was also supposed to be controlled, with the verification of the information collected to
ensure wrong information is not published.8
6
Measuring Judicial Activism (9th edn, Oxford University Press, Inc 2022) https://books.google.co.ke/books?
hl=en&lr=&id=TfdQEAAAQBAJ&oi=fnd&pg=PR7&dq=measuring+judicial+activism&ots=T6OQvGPqDW&sig=myeTU
NcjLu4_Z4RPe6eT_EBAwv0&redir_esc=y#v=onepage&q=measuring%20judicial%20activism&f=false accessed 15
June 2022.
7
Vishal J https://www.legalserviceindia.com/legal/article-2063-judicial-activism.html#:~:text=Judicial%20activism
%20in%20India%20implies,more%20of%20the%20constitutional%20clauses. accessed 16 June 2022.
8
Sheela Barse v State of Maharashtra [1983] SCR (2) 337
KENYA

Many judges, including Justice Alfred Mabeya, have stated THAT judicial activism is a positive
concept which basically amounts to the development and advancement of law. The former Chief
Justice, Dr. Willy Mutunga once said, “The Constitution itself is activist because it calls for
fundamental change in society. We call the constitution transformative. If THAT is so then it has
to be activist”. This statement alludes THAT judicial activism is not negative. However, this has
to be within the bounds of law and the powers given to judicial persons in order to avoid abuse
of power.

Article 259 of the Kenyan Constitution states THAT "the constitution shall be construed in a
manner THAT supports its purpose, values, and principles.9" This means THAT under the
current constitutional framework, the grounds for awarding judicial review remedies must be
developed to fit the evolving needs of our society while also ensuring fair and secure justice.
Nonetheless, judicial activism has manifested itself in Kenyan Courts in a variety of ways since
2010, ranging from the Courts to the legislature.

Judicial activism enables a judge to interpret the law in a manner THAT caters to the needs of
society. An illustration is in the case of Mitu-Bell Welfare Housing Society and the Kenya
Airports Authority and 2 others Petition 3 of 2018 (2021) eKLR which involved the unlawful
eviction of many residents of Mitumba Village, with 3065 households who were members of the
Mitu-Bell Welfare Society. A petition was filed in the High Court seeking conservatory orders
against Kenya Airports Authority.

The Court issued restraining orders against the Respondents from demolishing the village
pending hearing inter parties and determination of the application for conservatory orders.
However, the Respondents proceeded to demolish the appellants’ houses. The petitioner
amended the petition with leave of Court, seeking a declaration THAT the demolition was
illegal, THAT any forceful eviction and/or demolition without a relocation option is illegal,
violating the appellants’ rights, and THAT the petitioner and other members of the public were
entitled to the enjoyment of the right to socio-economic rights THAT were about to be violated
among other orders.

9
Constitution of Kenya 2010 (Article 259)
The Court ruled in favour of the Petitioner and this led to the 1st Respondent moving to the
Court of Appeal to appeal the entire judgment. The Court of Appeal ruled in favour of the
overturned High Court’s decision without clearly touching on the issue of eviction and
demolition of the settlers, hence the lack of any remedy for the evicted settlers.

An appeal was made to the Supreme Court of Kenya which declared the eviction illegal and
stated THAT the settlers were entitled to compensation, relocation, and adequate notice.

One of the issues THAT arose at the Supreme Court was the applicability of structural interdicts
which the Court of Appeal stated THAT it was not available as a remedy in Kenya. The
Supreme Court referred to article 23(3) of the CoK which provides for reliefs THAT a Court
may grant including injunctions and supervisory orders. The Honorable Court interpreted the
phrase ‘including’ to mean THAT there were more reliefs available than those THAT had been
listed.

In National Bank of Kenya Limited v Anaj Warehousing Limited, the Supreme Court of
Kenya overturned the decision by the Court of Appeal in National Bank of Kenya v Wilson
Ndolo Ayah.10

Mr. Ndolo had defaulted on the payment of funds he had borrowed from the bank which
executed a charge over property to secure the repayment of Ksh. 10 million. Mr. Ndolo defaulted
on the repayment hence the lawsuit. It was later established THAT the documents used to secure
the loan had been drawn by an advocate who did not have a practising certificate when drawing
the documents. The High Court held THAT the funds could not be recovered which led the
Bank to appeal to the Court of Appeal which upheld the High Court’s decision.

In Anaj Warehousing, the High Court stated THAT it was bound by the Court of Appeal’s
decision in Wilson Ndolo. An appeal was filed at the Court of Appeal and the same was
dismissed citing the case of Wilson Ndolo. Upon appeal to the Supreme Court, the Court held
THAT such illegality by an advocate is by no means as manifest as THAT unjust enrichment
conferred upon the borrower. The Court went further to analyze section 34 of the Advocates Act
and stated THAT it is not clear and ambiguous as to who an unqualified person is. The Court
10
National Bank of Kenya Ltd v Wilson Ndolo Ayah [2009] CA, eKLR
recommended THAT Parliament clarifies the ambiguities regarding legal documents prepared
by an advocate who does not have a practising certificate.

It was held THAT the funds should not be deemed unrecoverable merely on the technical
consideration THAT the advocate who drew the document lacked a current practicing
certificate.11

This is one of the cases THAT illustrate judicial activism in Kenya. Judicial activism dictates
THAT a judge may interpret the constitution in order to serve their vision concerning society’s
needs. The judge should be able to look past precedent and consider society’s welfare and
interests.

However, as much as judicial activism is a means of developing the law, judges should ensure
THAT their activism is within and abides by the law. This will result in good jurisprudence.

QUESTION 2

i) i. Justiciable Issues.

1. Loss of employment:

Due to the relocation of the port to the Inland Container Depot in Nairobi, the concerned firms
have had to retrench their employees in Mombasa County. Further THAT East Africa’s regional
port business has consequently been transferred from Mombasa County to Nairobi and its
environs which

2. Loss of revenue by the County Government of Mombasa:

The port of Mombasa generates revenues of up to KShs. 75 Billion per year.

3. Diminishing towns and market centres.

11
National Bank of Kenya Limited v Anaj Warehousing Limited [2015] Supreme Court, eKLR (Supreme Court).
 a. These towns depended on the long-distance trucks THAT transported cargo from Mombasa
port to various destinations. Such towns and urban centers including: Changamwe, Jomvu,
Mazeras, Mackinnon Road, Mariakani, Samburu, Voi, Mtito Andei, Masongaleni, Kibwezi,
Makindu, Masimba, Emali, Sultan Hamud, Salama, Athi River and Mlolongo will become ghost
towns.

4. Loss of job opportunities and employment for truck drivers

a. Truck drivers depended on the Kenya ports authority for transportation of goods from the port
to the mainland but since SGR took over from KPA, this has rendered the truck drivers jobless
consequently rendering all the people and towns THAT depended on them jobless.

5. Environmental degradation.

a. Mombasa residents are endangered by The dust emanating from the clinkers and bulky
containers is inhaled by the residents and on windy days is scattered across a wider geographical
area which may result in catastrophic health and environmental problems mostly in the dry
periods of the year.

ii. Choice of dispute resolution forum and mode of commencement of the suit

The Constitution of Kenya (COK) forms the primary legal basis for instituting legal proceedings
in Kenya. Subject to article 22 of the (COK) every person has the right to institute Court
proceedings claiming THAT a right or fundamental freedom has been violated. The provision
further states THAT the proceedings may be instituted by;12

a. A person acting on behalf of another person who cannot act in their own name

b. A person acting as a member of, in the interest of a group or class of persons

c. A person acting in the public interest or

d. An association acting in the interest of one or more members

12
Constitution of Kenya, 2010, Article 22
In our case here, the choice of dispute resolution forum is the High Court. The nature of the legal
matter demands THAT the High Court presides over it as it involves the infringement of
fundamental rights and freedoms.13

However, the doctrine of exhaustion requires parties to a dispute to fully utilize the existing
alternative dispute resolutions before approaching the Courts.14 The same was upheld in the case
of Geoffrey Muthinja Kabiru & another - vs- Samuel Muguna Henry & 1756 others 15 [4] the
Court of Appeal stated THAT where there is a dispute resolution mechanism provided for
outside Courts, it has to be exhausted before the parties to the dispute approach the Court.

The Competition Act16,[5] Section 40 and The Fair Administrative Actions Act 17 Section 9(2)
provide for a dispute resolution mechanism in which aggrieved parties, for example, the County
Government of Mombasa can resort for redress.

Conversely, there are exceptional circumstances where the doctrine of exhaustion may not be
applicable. For instance, if a party to a dispute, upon application is exempted from the doctrine if
the Court determines it is in the interest of justice to do so. The High Court may also make a
determination to render the exhaustion principle inapplicable in exceptional circumstances where
it would fail to realize the values enshrined in the Constitution or Law.

In Republic -vs- Council of Legal Education ex parte Desmond Tutu Owuoth 18 the High Court
stated THAT an exemption to the doctrine of exhaustion would be granted if a party may not
have an audience before the existing forum or the quality of the audience provided may not be
proportionate to the interest of the party.

Therefore, the infringement of fundamental rights and freedoms of the people of Mombasa are
special circumstances under which the High Court has jurisdiction and no alternative dispute
resolution can properly provide the audience nor the quality of audience required THAT is

13
Constitution of Kenya, 2010, Article 165(3)
14
Constitution of Kenya, 2010, Article 159
15
[2015] eKLR
16
No. 12 of 2010
17
No. 4 of 2015
18
[2019] eKLR
 proportionate to the interests of the parties and neither can the forum effectively realize the
values enshrined in the Constitution or Law.

As provided for under Article 165(3) of the Constitution. Subject to clause (5) the High Court
has the following jurisdiction:19

a) Unlimited original jurisdiction in criminal and civil matters;

b) Jurisdiction to determine the question of whether a right or fundamental freedom in the Bill of
Rights has been denied violated, infringed or threatened;

c) Jurisdiction to hear an appeal from a decision of a tribunal appointed under this Constitution to
consider the removal of a person from office, other than a tribunal appointed under Article 144;

d) Jurisdiction to hear any question respecting the interpretation of this Constitution including the
determination of:

i) The question of whether any law is inconsistent with or in contravention of this

constitution;

ii) The question of whether anything said to be done under the authority of this
Constitution or of any law is inconsistent with, or in contravention of, this
Constitution;

iii)Any matter relating to constitutional powers of State organs in respect of county

governments and any matter relating to the constitutional relationship between the
levels of government; and

iv)Any other jurisdiction, original or appellate, conferred on it by legislation.

6) The High Court has supervisory jurisdiction over the subordinate Courts and over any person,
body or authority exercising a judicial or quasi-judicial function, but not over a superior Court.

19
The Constitution of Kenya, 2010, Article 165 (3)
Mode of commencement of the suit

The mode of commencement of suit will be through a petition to the High Court. The petition
will include the;20

i) Name and address of Petitioner.

ii) Facts relied on.

iii) Law relied on.

iv) Type of injury suffered by the Petitioner or the person represented by the Petitioner.

v) Signature of the Petitioner or the advocate.

vi) Relief sought by the Petitioner.

iii) PLEADINGS

20
The Constitution of Kenya Practice and Procedure Rules 2013
PETITION

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CONSTITUTIONAL PETITION NUMBER OF 2022

IN THE MATTER OF ALLEGED VIOLATION OF ARTICLES 2, 10, 22, 23, 27,28,47, 50,
258 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF ENVIRONMENT MANAGEMENT AND COORDINATION ACT

2015

AND

IN THE MATTER OF FAIR ADMINISTRATIVE ACTIONS ACT 2015

BETWEEN

PROFESSOR MAJALIWA ………………………………………PETITIONER

VERSUS

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY…...1STRESPONDENT

KENYA PORT AUTHORITY………………………….…….…….….2NDRESPONDENT

HON. ATTORNEY GENERAL………………………………………...3RD RESPONDENT

KENYA RAILWAY CORPORATION…………………………………4th RESPONDENT

PETITION

TO:

THE HIGH COURT OF KENYA,

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION,

AT MOMBASA LAW COURTS,

MOMBASA.

1. 1. The humble petition of Professor Majaliwa whose address of service for the
purpose of this petition shall be in C/O FIRM 3 & COMPANY ADVOCATES, KSL
PLAZA, 5TH FLOOR, BIASHARA STREET, P.O BOX 234-00400, MOMBASA

DESCRIPTION OF PARTIES

2. The Petitioner is a male adult of sound mind, a law-abiding citizen of the Republic of
Kenya, and a person from the Mijikenda Community and working for gain and residing
in Mombasa, Kenya whose address of service shall be C/O FIRM 3 & COMPANY
ADVOCATES, KSL PLAZA, 5TH FLOOR, BIASHARA STREET, P.O BOX 234-
00400, MOMBASA
3. The 1st Respondent is the National Environment Management Authority established
under Section 7 of the Environmental Management and Coordination Act 2015 whose
premises are located at P.O.BOX: 67839-00200, POPO ROAD, SOUTH C, NAIROBI,
KENYA. [service of summons shall be effected through the petitioner’s advocate’s
office]
4. The 2nd Respondent is the Kenya Ports Authority established under Section 3 of the
Kenya Ports Authority 1979 revised 2012 located within the Republic of Kenya P.O Box
95009 Mombasa. [service of summons shall be effected through the petitioner’s
advocate’s office]
5. The 3rd Respondent is the principal legal advisor to the Government and is
constitutionally mandated by Article 156(4) (b) of the Constitution to represent the
National Government in Court and has been sued in THAT capacity. [Service of
summons shall be effected through the petitioner’s advocate’s office].
6. The 4th Respondent is the Kenya Railways Corporation established under the Kenya
Railways Corporation 1978 located within The Republic of Kenya P.O Box 301212-
 00100 Nairobi workshops Road Off Haile Selassie Avenue Opposite Technical
University of Kenya.

THE LEGAL BASIS OF THE PETITION

7. Article 2 of the Constitution of Kenya provides THAT the Constitution is the supreme
law of the Republic of Kenya and binds all persons and all state organs.
8. Article 3 of the Constitution of Kenya dictates THAT every person has an obligation to
respect, uphold and defend this Constitution.
9. Article 10 of the Constitution provides for the national values and principles of
governance THAT bind all state organs, state officers, public officers and all persons
whenever any of them makes or implements public policy decisions.
10. Article 20 of the Constitution provides for the application of the Bill of Rights, 20(1) and
(2) states THAT the Bill of Rights applies to all law and binds all State organs and all
persons and THAT Every person shall enjoy the rights and fundamental freedoms in the
Bill of Rights to the greatest extent consistent with the nature of the right or fundamental
freedom.
11. Article 22 in conjunction with Article 258 of the Constitution provides THAT every
person has the right to institute legal proceedings claiming THAT a right or fundamental
freedom in the Bill of Rights has been denied, violated, infringed, or threatened.
12. Article 23(3) of the Constitution provides THAT in any proceedings brought under
Article 22, a Court may grant appropriate relief including a declaration of rights, an
injunction, a conservatory order, and an order for compensation.
13. Article 24 of the Constitution provides for the limitation of rights and fundamental
freedoms.
14. Article 27 of the Constitution provides THAT every person has the right to equality and
freedom from discrimination. Every person is equal under the law.
15. Article 28 of the Constitution provides THAT every person has inherent dignity and the
right to have THAT dignity respected and protected.
16. Article 33 of the Constitution provides for the freedom of expression.
 17. Article 35 of the Constitution provides for access to information under article 35(3) it
further stipulates THAT The State shall publish and publicize any important information
affecting the nation.
18. Article 42 of the Constitution provides THAT every person has the right to a clean and
healthy environment, this right includes Article 69 of the Constitution which showcases
the obligations in respect of the environment as per the state and the individuals in the
state.
19. Article 43 of the Constitution provides Economic and social rights which perquisites the
need for a standard of health and a reasonable standard of sanitation.
20. Article 48 of the constitution provides THAT the State shall ensure access to justice for
all persons and, if any fee is required, it shall be reasonable and shall not impede access
to justice.
21. Article 50(1) of the Constitution provides THAT every person has the right to have any
dispute THAT can be resolved by application of law decided in a fair and public hearing
before a Court or, if appropriate, another independent and impartial tribunal or body.
22. Article 159(1) of the Constitution provides THAT judicial authority is derived from the
people and vests in and shall be exercised by, the Courts and tribunals established by or
under this Constitution
23. Article 162(2) of the Constitution provides THAT Parliament shall establish Courts of
the status of the High Court to hear and determine disputes relating to the environment
24. Part 1 of the Environmental Management and Co-ordination Act provides for the
establishment of an appropriate legal and institutional framework for the management of
the environment and for matters connected therewith
25. Section 7 of the Environment Management and Coordination Act establishes the National
Environment Management Authority.
26. Section 4 of the Fair Administrative Action Act 2015 provides THAT every person is
entitled to the right to fair administrative action.

THE PETITIONER’S CASE

27. The Petitioner was retained by the County Government of Mombasa on 30 th September
2014 to conduct research on social economic affairs relating to the port of Mombasa.
28. The Petitioner conducted a thorough investigation of the business activities in regard to
the 2nd Respondents and the other organizations in the mandate of the governments.
29. The Petitioner’s report indicated THAT the Port of Mombasa is the central hub of
transportation of overseas cargo between the country and the Eastern African
Communities, also the 2nd largest port in sub-Saharan Africa.
30. The Port handles all cargo-related activities which mandate the hiring of 450 clearing and
forwarding agents who on average have over 50 employees each. This institution has a
big impact on the businesses and people around it, it has a great multiplier effect on the
economy averaging about Kshs. 75 billion annually in revenue.
31. The port has contributed greatly to the economy of the county and the neighbouring
towns, estimated to contribute about 40% of the country's economy.
32. The Petitioner brings to light the fact THAT even with all this contribution the county of
Mombasa which has a population of 1,208,333 as per the 2019 census and only 41% of
the population have meaningful employment in the county also battling low levels of
literacy, unemployment particularly among the youth and high dependency rate.
33. The Petitioner on investigating found THAT the 2nd Respondent (KPA) established an
Inland Container Depot (ICD) in Embakasi, Nairobi which is linked to the port by the
Standard Gauge Railway (SGR). The KPA and Kenya Railways Corporation (KRC) 4 th
Respondent are in an agreement wherein KPA is, inter alia, obligated to consign to KRC
as a carrier, a set volume of freight and/or other cargo to KPA’s Embakasi ICD pursuant
to commencement of the operations of the said SGR.
34. This action has resulted in the transferring of the services of cargo handling from
Mombasa County to the ICD in Nairobi County which has uprooted the businesses and
concerned firms to Nairobi County.
35. The Petitioner showcases THAT this action has resulted in layoffs for the employees
related to the business of clearing and forwarding, cargo transporting and related
business. The residents of Mombasa County have been greatly affected by these
circumstances.
36. The Petitioner asserts THAT the operations of 2nd Respondent through the Embakasi ICD
undermine the development of Mombasa County and its environs; the ICD (dry port)
 ought to have been established within a radius of 100 to 150 kilometres from the
Mombasa Port so as to continue benefitting Mombasa town and its environs.
37. The petitioner’s report indicates THAT the port occupies about 20% of the land mass of
Mombasa County and is a natural resource which ought to greatly benefit the people of
Mombasa County and its environs in the first instance. The residents of Mombasa and its
environs bear the greatest negative effects of the port arising from the high environmental
degradation as a result of the port and its activities. The death of marine life due to the
hot seat and oil spillage.
38. The dust emanating from the clinkers and bulky containers is inhaled by the residents and
on windy days is scattered across a wider geographical area. This environmental
degradation has led to the loss of marine life which in turn reduces the opportunity for
commercial fishing which is also a source of livelihood for the people of Mombasa
County. Mombasa residents are endangered and suffer losses as a result of their
proximity to the port and thus ought to be the greatest beneficiaries of the port.

Particulars of Violation of the Petitioner’s Rights

39. The Petitioner avers THAT the 1st, 2nd, 3rd and 4th Respondents have violated Article 10
of the Constitution which provides for the national values and principles by failing to
govern and prohibit the actions done by the governmental institutions THAT have caused
an unsustainable development and failed to include the people of the land in their
decision.
40. The Petitioner avers THAT the 2nd and 4th Respondents agreement have violated section
4(3) and 5 of the Fair Administrative Action Act which entails the administrative
responsibilities without consulting the Residents of Mombasa County. This applies to the
1st Respondent allowance of the agreement to pass without inference as their mandate.
41. The petition contends THAT the Respondents have violated Article 28 of the
Constitution, providing THAT every person has inherent dignity and the right to have
THAT dignity respected and protected by failing to see the devastating effects THAT
the actions carried out would have on the people.
42. The Petitioner avers THAT the Respondents have violated Article 42 of the Constitution
provides THAT every person has the right to a clean and healthy environment, this right
 includes Article 69 of the Constitution which showcases the obligations in respect of the
environment as per the state and the individuals in the state and THAT has grossly been
overlooked as it is stated in the report THAT there is high environmental degradation as
a result of the activities carried out in the port which has endangered the life of the
Marine life and the citizens of Mombasa County.
43. The Petitioner avers THAT the 2nd and 4th Respondents have violated Article 43 of the
Constitution which provides the Economic and social rights by which the residents’
livelihood has been negatively affected by their actions and is a threat to their wellbeing.
44. The Petitioner avers THAT in the circumstances outlined herein above, this Honourable
Court has jurisdiction and is indeed duty bound to intervene, and to issue the requisite
orders and declarations in vindication of the law and the Constitution.

YOUR PETITIONER THEREFORE PRAYS THAT:

a) This Honourable Court be glad to issue an order of declaration declaring THAT the
Respondent has violated the Petitioner’s right to a clean and healthy environment in
Article 42 of the Constitution compounded by Article 69 of the Constitution.

b) A declaration be and is hereby issued THAT the 1st Respondent be reprimanded for
not fulfilling its obligations as per the Environment Management and Coordination
Act Section 1 and 7 giving it authority and mandate over environmental matters.

c) A declaration THAT the respondents agreements violate article 43 of the

constitution which provides the social and economic rights of the residents of
Mombasa County.

d) A declaration THAT the Petitioner’s right and the rights of the residents of Mombasa
County on the basis of access of information held by the government or other persons
and also the required exercise or protection of any right or fundamental freedom
infringed under Article 35
 c) An Order of Mandamus is hereby issued compelling the 1st respondent to undertake
the task THAT is mandated to them in conducting a geological survey of the actions
presented.

d) The costs of this suit.

e) Any other relief THAT the Court deems fit to grant.

DATED at NAIROBI this......................................day of.......................................................2022

FIRM 3 & COMPANY ADVOCATES

ADVOCATES FOR THE PETITIONER

DRAWN AND FILED:

FIRM 3 & COMPANY ADVOCATES,

FIRM 3 & CO. ADVOCATES,

KSL PLAZA, 5TH FLOOR

BIASHARA STREET

P.O BOX 234-00400,

MOMBASA

TO BE SERVED UPON
WEMA & PARTNER ADVOCATES

P.O.BOX: 67839-00200,

POPO PLAZA, 3rd FLOOR

POPO ROAD SOUTH C

NAIROBI

TO BE SERVED UPON:

The Attorney General

Kenya Ports Authority

National Environment Management Authority

Kenya Railways Authority

 REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO…….OF 2022

IN THE MATTER OF CONTRAVENTION OF FUNDAMENTAL RIGHTS AND

FREEDOMS UNDER ARTICLES 6, 10, 43(1), 47, 55, 174 & 186 OF THE
CONSTITUTION OF KENYA 2010

BETWEEN

PROFESSOR MAJALIWA & OTHERS………………………………PETITIONERS

VERSUS

THE HON. ATTORNEY GENERAL………………………………….1ST RESPONDENT

CABINET SECRETARY,

NATIONAL ENVIRONMENT ………….……………………………2ND RESPONDENT

MANAGEMENT AUTHORITY

KENYA PORT AUTHORITY ………………………………………….3RD RESPONDENT

KENYA RAILWAY CORPORATION…………………………………4th RESPONDENT

CERTIFICATE OF URGENCY
 I, Leah Mwangi, an advocate of the High Court of Kenya do certify THAT the matter herein is
of extreme urgency and should be dispensed with in the first instance on the grounds THAT;

1. The transfer of the port operations to Nairobi County is procedurally deficient.

2. The people of the County Government of Mombasa were not involved in the conceptualization
and implementation of the decision actualizing the transfer of port operations.

3. There was no sufficient public participation as required under Article 10 of the Constitution of
Kenya.

4. The Petitioners and residents of Mombasa County's social and economic rights have been
violated under Article 43 of the Constitution of Kenya.

5. The Petitioners are entitled to the relief sought in their petition.

6. It is only just and equitable THAT the Petitioners be heard on a priority basis so THAT their
grievances are remedied without delay.

7. It is upon this Honourable Court’s mandate to protect and safeguard the Petitioner's
Constitutional Rights and hence it is in the interests of justice THAT the application is heard at
the earliest.

Dated at Mombasa this……day of ……..2022

DRAWN AND FILED BY;

FIRM 3 & CO. ADVOCATES,

KSL PLAZA, 5TH FLOOR

BIASHARA STREET

P.O BOX 234-00400,

MOMBASA
TO BE SERVED UPON

WEMA & PARTNER ADVOCATES

The Attorney General

Kenya Ports Authority

National Environment Management Authority

Kenya Railways Authority

 REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CONSTITUTIOONAL PETITION NUMBER OF 2022

IN THE MATTER OF ALLEGED VIOLATION OF ARTICLES 2, 10, 22, 23, 27,28,47, 50,
258 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF ENVIRONMENT MANAGEMENT AND

COORDINATION ACT 2015

AND

IN THE MATTER OF FAIR ADMINISTRATIVE ACTIONS ACT 2015

BETWEEN

PROFESSOR MAJALIWA ………………………………………PETITIONER

VERSUS
NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY…...1STRESPONDENT

KENYA PORT AUTHORITY………………………….…….…….….2NDRESPONDENT

HON. ATTORNEY GENERAL……………………………………….3RD RESPONDENT

KENYA RAILWAY CORPORATION…………………………………4th RESPONDENT

SUPPORTING AFFIDAVIT

I, PROFESSOR MAJALIWA, of P.O Box 234-00400, GPO, do hereby state as follows: -

1. THAT I am an adult Kenyan male of sound mind, residing and working for gain
in Mombasa County within the Republic of Kenya.
2. THAT I have the authority to swear the affidavit herein.
3. THAT I am a Marine Eco Business expert in the advisory position to the
governor of Mombasa County.
4. THAT the 2nd Respondent (KPA) established an Inland Container Depot (ICD) in
Embakasi, Nairobi which is linked to the port by the Standard Gauge Railway
(SGR).
5. THAT The KPA and Kenya Railways Corporation (KRC), 4 th Respondent herein,
are in an agreement wherein KPA is, inter alia, obligated to consign to KRC as a
carrier, a set volume of freight and/or other cargo to KPA’s Embakasi ICD
pursuant to commencement of the operations of the said SGR.
6. THAT the Port handles all cargo-related activities which mandate the hiring of
450 clearing and forwarding agents who on average have over 50 employees
each. This institution has a big impact on the businesses and people around it and
has a great multiplier effect on the economy averaging about Kshs. 75 billion
annually in revenue.
7. THAT the port has contributed greatly to the economy of the county and the
neighboring towns, estimated to contribute about 40% of the county's economy.
8. THAT the action has resulted in the transferring of the services of cargo handling
from Mombasa County to the ICD in Nairobi County which has uprooted the
businesses and concerned firms to Nairobi County.
 9. THAT the aforementioned action has resulted in layoffs of the employees related
to the business of clearing and forwarding, cargo transporting and related business
has greatly affected the residents of the County of Mombasa.
10. THAT the hot steam and oils from the engines of the ship as well as the dust
emanating from the clinkers and bulky containers are hazardous to the marine life
and the residents.
11. THAT the residents of Mombasa bear the negative effects of the port arising from
the high environmental degradation as a result of the port and its activities.
12. THAT the environmental degradation has led to the loss of marine life which has
diminished commercial opportunity and source of livelihoods for the residents of
Mombasa County.
13. THAT as per my qualifications have attested to the facts of the situation as per
my report.
14. THAT I have conducted the due diligence before filing this claim in Court.
15. THAT the Respondents shall not be prejudiced in any way if the orders sought
are granted in their totality.
16. THAT I verily believe THAT the interests of justice shall be served well if this
Application is allowed in its entirety.
17. THAT I therefore swear this affidavit in support of this Petition and the prayers
sought herein.
18. THAT what is deponed herein is true to the best of my knowledge, information
and belief.

SWORN by the said,

PROFESSOR MAJALIWA

At MOMBASA this……day of ……..2022

COMMISSIONER FOR OATHS ……………

DEPONENT
DRAWN AND FILED BY;

FIRM 3 & CO. ADVOCATES,

KSL PLAZA, 5TH FLOOR

BIASHARA STREET

P.O BOX 234-00400,

MOMBASA

TO BE SERVED UPON

WEMA & PARTNER ADVOCATES

The Attorney General

Kenya Ports Authority

National Environment Management Authority

Kenya Railways Authority

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CONSTITUTIOONAL PETITION NUMBER OF 2022

IN THE MATTER OF ALLEGED VIOLATION OF ARTICLES 2, 10, 22, 23, 27,28,47, 50,
258 OF THE CONSTITUTION OF KENYA 2010
 AND

IN THE MATTER OF ENVIRONMENT MANAGEMENT AND

COORDINATION ACT 2015

AND

IN THE MATTER OF FAIR ADMINISTRATIVE ACTIONS ACT 2015

BETWEEN

PROFESSOR MAJALIWA ………………………………………PETITIONER

VERSUS

NATIONAL ENVIRONMENT MANAGEMENT AUTHORITY…...1STRESPONDENT

KENYA PORT AUTHORITY………………………….…….…….….2NDRESPONDENT

HON. ATTORNEY GENERAL……………………………………….3RD RESPONDENT

KENYA RAILWAY CORPORATION…………………………………4th RESPONDENT

NOTICE OF MOTION

(Under Sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act; Order 40 rule 1 and Order
51rule 1 of the Civil Procedure Rules, S 3 Government Proceedings Act and all other enabling
laws)

TAKE NOTICE that this Honourable Court shall be moved on the...13TH.........day of…..
NOVEMBER.....2022 at 9: 00 O’ clock in the forenoon or soon thereafter the counsel for the
Applicant shall be heard on the hearing of the Application for the ORDERS:
 1. THAT this Honourable Court be pleased to certify this matter as urgent and service be
dispensed with in the first instance.
2. THAT this Honourable Court be pleased to grant An Order of Mandamus is hereby
issued compelling the 1st respondent to undertake the task THAT is mandated to them
in conducting a geological survey of the actions presented.
3. THAT the costs of this Application be borne by the Respondents.
4. Any other reliefs/orders that this Honourable Court may deem fit and just to grant.

WHICH APPLICATION is based on the following grounds: -

I. The Petitioner avers THAT the 1st, 2nd, 3rd and 4th Respondents have violated Article
10 of the Constitution which provides for the national values and principles by failing to
govern and prohibit the actions done by the governmental institutions THAT have
caused an unsustainable development and failed to include the people of the land in
their decision.
II. The Petitioner avers THAT the 2nd and 4th Respondents agreement have violated
section 4(3) and 5 of the Fair Administrative Action Act which entails the administrative
responsibilities without consulting the Residents of Mombasa County. This applies to
the 1st Respondent allowance of the agreement to pass without inference as their
mandate.
III. The petition contends THAT the Respondents have violated Article 28 of the
Constitution, providing THAT every person has inherent dignity and the right to have
THAT dignity respected and protected by failing to see the devastating effects THAT the
actions carried out would have on the people.
IV. The Petitioner avers THAT the Respondents have violated Article 42 of the Constitution
provides THAT every person has the right to a clean and healthy environment, this right
includes Article 69 of the Constitution which showcases the obligations in respect of the
environment as per the state and the individuals in the state and THAT has grossly been
overlooked as it is stated in the report THAT there is high environmental degradation as
 a result of the activities carried out in the port which has endangered the life of the
Marine life and the citizens of Mombasa County.
V. The Petitioner avers THAT the 2nd and 4th Respondents have violated Article 43 of the
Constitution which provides the Economic and social rights by which the residents’
livelihood has been negatively affected by their actions and is a threat to their
wellbeing.
VI. The Petitioner avers THAT in the circumstances outlined herein above, this Honourable
Court has jurisdiction and is indeed duty bound to intervene, and to issue the requisite
orders and declarations in vindication of the law and the Constitution.
VII. The Respondents shall not be prejudiced in any way if the orders sought are granted in
their totality.
VIII. The Applicant has a good claim to prove before this Honourable Court.
IX. It is in the interest of justice.

WHICH APPLICATION is supported by the annexed affidavit of PROFESSOR MAJALIWA and on

such other grounds as may be adduced or advanced at the hearing hereof.

DATED at NAIROBI this......................................day of.......................................................2022

FIRM 3 & COMPANY ADVOCATES

ADVOCATES FOR THE PETITIONER

DRAWN AND FILED:

FIRM 3 & COMPANY ADVOCATES,

FIRM 3 & CO. ADVOCATES,

KSL PLAZA, 5TH FLOOR

BIASHARA STREET

P.O BOX 234-00400,

MOMBASA

TO BE SERVED UPON

WEMA & PARTNER ADVOCATES

P.O.BOX: 67839-00200,

POPO PLAZA, 3rd FLOOR

POPO ROAD SOUTH C

NAIROBI

TO BE SERVED UPON:

The Attorney General

Kenya Ports Authority

National Environment Management Authority

Kenya Railways Authority