Case ID:162995

Multytouch International v Provincial Forest Officer, Nairobi & 3 others [2020] eKLR

Case Metadata

Case Number:

Civil Case 580 of 2011

Parties:

Multytouch International v Provincial Forest Officer, Nairobi, Cabinet Secretary Ministry of Environment Water & Natural Resources, Kenya Forestry Service & Attorney General

Date Delivered:

19 Jun 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Case Action:

Judgment

Judge(s):

Maureen Akinyi Odero

Citation:

Multytouch International v Provincial Forest Officer, Nairobi & 3 others [2020] eKLR

Court Division:

Commercial Tax & Admiralty

County:

Nairobi

Case Outcome:

Application dismissed with costs to the 3rd Defendant

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

COMMERCIAL & TAX DIVISION

CIVIL CASE NO. 580 OF 2011

MULTYTOUCH INTERNATIONAL.............................................................PLAINTIFF

VERSUS

PROVINCIAL FOREST OFFICER, NAIROB..................................1

ST

DEFENDANT

CABINET SECRETARY MINISTRY OF ENVIRONMENT

WATER & NATURAL RESOURCES..................................................2

ND

DEFENDANT

KENYA FORESTRY SERVICE............................................................3

RD

DEFENDANT

THE ATTORNEY GENERAL..............................................................4

TH

DEFENDANT

JUDGMENT

1. By way of the Amended Plaint dated

13

th

March 2017

, the Plaintiff

MULTITOUCH INTERNATIONAL

seeks the following Orders:-

“a. Kshs.45,071,250

b. Interest thereon at court rates

c. Cost of suit

d. Any other just and equitable relief this Honourable Court may deem fit to grant.”

2. The Defendants are

PROVINCIAL FOREST OFFICER, NAIROBI

(the 1

st

Defendant),

CABINET SECRETARY MINISTRY OF ENVIRONMENT WATER & NATURAL RESOURCES (

the 2

nd

Defendant

), DIRECTOR OF FORESTRY SERVICE (

the 3

rd

Defendant

), KENYA FORESTRY SERICE (the 4

th

Defendant),

and

THE ATTORNEY GENERAL

(the 5

th

Defendant). The Defendants all opposed the suit through the Defence dated

9

th

May 2012.

3. The matter proceeded for hearing before this court on

29

th

November 2018.

The Plaintiff called three (3) witnesses in support of their case whilst the Defendants called one (1) witness.

BACKGROUND

4. PWI CHRISTINE WANGARI GACHEGE

was the Plaintiffs first witness. She is the Executive officer of

Multy touch International

(the Plaintiff herein), a non-governmental organization which primarily advocates for pragmatic ecological conservation particularly through high value tree planting with a focus on water catchments, reclamation of viable semi-arid land with the object of mitigating deforestation.

5. PW1

relied entirely on her witness statement dated

13

th

March 2017.

Her evidence was that sometime in

August 2006

the Plaintiff organization applied to be allocated a one (1) acre plot at Karura Forest in order to establish a tree nursery. The application was approved and from then until the year

2011

the Plaintiff undertook a successful tree seedlings propagation exercise by planting, distributing, selling and donating tree seedlings to various schools, institutions and to the City Council of Nairobi (as it then was).

6. However, sometime in

January 2011

while

PW1

was away in the United Kingdom she received a call from her

supervisor

informing her that on

1

st

January

2011

the Defendants in total breach of their agreement and without notice and/or any justifiable cause blocked the Plaintiffs employees from entering or accessing the nursery to water or tend to their seedlings.

PW1

claims that as a result of this action of the Defendant 600,000 seedlings dried up causing the Plaintiff to suffer losses in the amount of

Kshs.45,071,250/=.

Despite demand and intention to sue being issued the Defendants failed to respond. The Plaintiff then filed the present suit.

7. PW2 DOUGLAS MWAURA MATIRO

also sought to rely entirely on his written witness statement dated

23

rd

November 2018. PW2

told the court that he is a resident of Kiambu County and carries on business of planting tree nurseries at Karura forest. He stated that sometime in the year

2006

he met

PW1

who expressed her desire to purchase tree seedlings. At the time

PW2

had about

5000

assorted tree seedlings which he offered to sell to

PW1

. Since the Plaintiff required a big order of seedlings

PW2

also mobilized other traders to get as many tree seedlings as possible.

8. Later

PW1

informed

PW2

of her desire to establish a tree nursery in Nairobi.

PW2

introduced her to a

Mr Kivai

who was then the Provincial Forest Officer at Karura Forest. He later learnt that the Plaintiff had been allocated a one are plot next to

ICRAF

where she operated her tree nurseries for the next four (4) years.

9. PW3 PAUL NJUGUNA

told the Court that he used to operate a tree nursery in Limuru. He too sought to rely entirely upon his written statement dated

29

th

November 2018. PW3

told the court that he has worked for the Plaintiff organization since the year

2004

as a supervisor engaging in tree planting activities in Nakuru Town, Bahati and Ndundori Forest Stations.

10. In

September 2006 PW3 states that he

helped the Plaintiff move about

500,000

assorted seedlings from Nakuru County to Karura Forest in Nairobi. He was subsequently made the supervisor of the Plaintiff’s Karura Forest site where he helped raise over

600,000

assorted seedlings. He states that the organization had 10 permanent workers but would also hire casual workers as and when the need arose.

11. PW3

testified that they operated peacefully at the Karura Forest site until

1

st

January 2011

when they were chased out of the forest by Forest Rangers employed by the 3

rd

Defendant and were warned never to return there.

PW3

phoned his boss

PW1

who was at the time in the United Kingdom to inform her of the turn of events.

12. The sole defence witness was

DW1 JOHN ORWA

a Forest Manager who was at the material time in charge of

Karura Forest Station. DW1

relied entirely on his written statement dated

26

th

November 2018

. His evidence was that sometime in

August 2006

the Plaintiff applied and was allocated on temporary basis a once acre plot within Karura Forest. According to

DW1

the agreement was that the plot was to be used by the Plaintiff to store tree seedlings as the organization needed to store the seedlings it was transporting from Nakuru for eventual sale to the Nairobi City Council.

DW1

explains that the standard procedures for allocation of Government land were not followed in this case, as the allocation was only on

temporary basis

for purpose of storing seedlings. He emphasizes that it was an implied term of their agreement that the Plaintiff would not raise more tree seedlings on the one acre plot.

13. DW1

went on to make several allegations against the Plaintiff e.g that its workers were not being paid and so resorted to theft and cutting wood and hunting wildlife inside the forest, that some of the Plaintiffs employees had no National Identity cards implying that they were underage, that Plaintiff’s employees were in conflict with visitors coming to the Karura Forest.

DW1

further states that although the Plaintiff had been told not to erect any structure within the Forest, they proceeded to put up a container and to dig a borehole at the site without the permission and/or authority of the

Kenya Forest Service.

16. As a result of all these undesirable activities within the forest

DW1

directed the Plaintiffs employees who were residing in a container inside the Forest to leave.

16. DW1

states that by a letter dated

25

th

October 2006

, the Plaintiff sought permission to put up perimeter fence around her allocated plot to keep away wild animals. This request was declined. On

29

th

November 2006

at a meeting held to deliberate on the Plaintiffs request it was agreed that the Plaintiff either formalize its arrangement with the Kenya Forest Service or vacate the site altogether.

16. On

1

st

March 2017

the Plaintiff was advised to vacate the site in Karura Forest. By a letter dated

27

th

March 2007

the Plaintiff appealed to the Chief Conservator of Forests. The appeal was rejected and the Plaintiff was ordered to vacate the site by

8

th

June 2007

. Due to the failure of the Plaintiff to vacate the site as directed the

Kenya Forest Service

moved in and removed their container.

DW1

stated that at no time did the

Kenya Forest Service

offer or agree to purchase tree seedlings from the Plaintiff.

17. At the close of the hearing both parties were invited to file their written submissions. Both parties duly filed their written submissions.

ANALYSIS AND DETERMINATION

18. I have given careful consideration to the evidence on record, as well as the written submissions of both parties. In law the burden of proof rests upon the party asserting the existence of a particular fact or set of facts.

Section 107

of the

Evidence Act

provides as follows:-

Burden of Proof

“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

19. The issues which arise for determination in this case are as follows:-

i. Whether the Plaintiff was allocated use of a Plot within Karura Forest and the terms of such allocation.

ii. Whether the Plaintiff is entitled to the reliefs being sought in this suit.

i. ALLOCATION

20. The Plaintiffs case is that the 4

th

Defendant granted to the organization use of a one acre plot within Karura Forest. The letter which is

4

th

August 2006

and is annexed at Page 36 of the Plaintiff’s bundle of documents filed on

10

th

November 2018

and was signed by

Mr H.N. Kivai

the

Provincial Forest Officer,

reads as follows:-

“RE:

ALLOCATION OF A PLOT FOR TREE NURSERY ESTABLISHMENT

“This is to inform you that your request has been accepted, hence (1) one acre plot has been allocated in beat 2 next to ICRAF temporarily.

Note you will not be allowed to put up some structures and no fencing of trees of whatever nature.”

21. The process of allocation of forest land is governed by the

Forest Act 2005, Section 37(2)

of that Act provides as follows:-

“Where the Board is satisfied that all or part of the State Forest which is a plantation forest may be efficiently managed through a license, concession, joint agreement, it may place an advertisement on two Daily Newspapers of National circulation calling for applications from interested persons for the Management of the same."

22. Section 46

of the

Forest Act, 2005

provides as follows:-

46. (1) A member of a forest community may, together with other members or person’s resident in the same area, register a community forest association under the Societies Act 2005 275 Forests No.7

(2) An association registered under sub section (1) may apply to the Director for permission to participate in the conservation and management of a state forest or local authority forest in accordance with the provisions of this Act: Provided that no application under this subsection shall be made where there is an existing prior agreement or license.

(3) The application referred to in subsection (2) shall be in the prescribed form and shall contain-

a. a list of the members of the association and its address;

b. the Constitution of the association;

c. the association’s financial regulations;

d. the area of forest for which the association purposes to undertake conservation and management;

e. the association’s proposal concerning –

i. use of forest resources;

ii. methods of conservation of biodiversity

iii. methods of monitoring and protecting wildlife and plant populations and enforcing such protection; and

f. such other information as the Director may require.

(4) Where there is no management plan in respect of the area, or where the association proposes that there be a No.7 276 Forests 2005 Functions of a forest association, new management plan, the application shall be accompanied by a draft management plan.

(5) The provisions of this Act regarding management plans shall apply in respect of the draft management plan submitted under subsection (4).

(6) The Director shall cause to be kept an up to record of all associations participating in the conservation or management of forests.

23. The Plaintiff claims that she was allocated the one acre plot for purposes of running a tree nursery.

DW1

insists that the allocation which was only on

temporary basis

was to allow the Plaintiff space to store their seedlings which were being transported from Nakuru and which were destined for sale to the then City Council of Nairobi. The letter dated

4

th

August 2006

authored by a

Mr Kivai

Provincial Forest Officer is headed:-

RE:

ALLOCATION OF A PLOT FOR TREE NURSERY ESTABLISHMENT

It is therefore clear that the plot in Karura Forest was allocated to the Plaintiff to enable them set up a tree nursery and not merely for storage purposes as alleged by

DW1

.

24. PW1

stated that her organization at all material times complied with the terms of the license granted to them by the Defendant. However, there is no evidence that the Plaintiff complied with

Section 46

of the

Forest Act

in applying for and securing allocation of the one (1) acre plot nor did the Plaintiff produce before the court any licence to show that the said allocation accorded with the law.

25. It would appear that the Plaintiff did not make a formal application to occupy Forest land. Neither did the Plaintiff make any payment for its 4 year occupation of said plot. The letter of

7

th

April 2008

cannot be deemed to be a licence to occupy Forest land. A letter

dated

23

rd

July 2008

written to the Plaintiff by one

E.N. Mugo

for the

Director

,

Kenya Forest Service

states as follows:-

“

You are advised to apply for an occupation of forest land license in Karura Forest Station so as to comply with the new conditions within the Forest Act, 2005.”

26. The Plaintiff ignored this advice and took no steps to formalize its engagement with Karura Forest and to legitimize its occupation of Forest land.

27. Therefore in the absence of a valid licence under the

Forest Act

2005

, I find that there existed no agreement or contract between the Plaintiff and the 4

th

Defendant and I do so hold. It is more likely that this was merely ”

local arrangement

” between the Plaintiff and the Kenya Forest Service officers she found on the ground. I therefore find and hold that this allocation of the one acre plot of land in Karura Forest to the Plaintiffs for their use did not comply with and was not sanctioned by the law.

PLAINTIFF’S CLAIM

28. The Plaintiff told the Court that on

1

st

January 2011

they were crudely and unceremoniously evicted from the plot in Karura Forest.

PW2

who was present at the material time testified that Kenya forest Service rangers came and removed the Plaintiff’s container and chased away all its workers.

29. On the issue of the container although the Plaintiff claims that they were permitted to set up a container in the forest for her employees to sleep in, the documentary evidence does not support this. The letter dated

4

th

August 2006

written to the Plaintiff states clearly:-

“…

Note you will not be allowed to put up some structures

and no fencing of trees of whatever nature…”

[own emphasis]

It is clear therefore that the Plaintiff had no authority or permission to put up a container on the site. They did so against the advice of the 4

th

Defendant.

30. The Plaintiff alleges that its staff was thereafter denied access to water the seedlings leading to massive loss of tree seedlings as tabulated at

clause 10

of the Amended Plaint dated

13

th

March 2017

.

31. The Plaintiff is aggrieved by its eviction from the forest which it claims was done without any prior notice to themselves. They cite and rely on the case of

CALTEX OIL (KENYA) LIMITED –VS EVANSON NJIRI WANJIHIA,

where the court held as follows:-

“This in our view would therefore mean that the contract expired by effluxion of time and from 23

rd

July 1993, there was no binding contract between the parties which was capable of being breached. This would mean that what remained between the parties was a nebulous working relationship with no termination clause. The party wishing to end the said relationship would be required to give the other reasonable notice. Reasonable notice depends on the circumstances of each case.”

32. However the Plaintiff’s claim that they received no notice to vacate the plot is not entirely correct. The 4

th

Defendant wrote severally to the Plaintiff asking them to relocate from the Karura Forest site. The Court notes that the Defendant sent out letters to the Plaintiff on

1

st

March 2007

and

2

nd

May 2007

respectively informing the Plaintiff that she was expected to leave the site on or before

8

th

June 2007

. The letter dated

1

st

March 2007

to the Plaintiff, reads as follows:-

“Your conservation efforts are very much noted and appreciated. However, the official authority to carry out any activity in the forest as spelt out in the Forest Act, 2005 was not given.

You are requested to do the following:-

1. You officially apply to the Kenya Forest Service so that your request can be considered under the provisions of the forest Act, 2005.

2. The service will consider a more suitable site for your kind of activity to avoid further loss of seedlings to wild animals or theft if the authority is given.

3. You locate your seedlings from the site until the above (1) and (2) are done.

Signed

Mrs Charity Munyasya

Provincial Forest Officer, Nairobi”

33. Again on

2

nd

May 2007

, the Defendant sends out another letter to the Plaintiff stating as follows:-

“…..Our previous letter Ref.No.PFO 9/3/38 of 1

st

March 2007 still holds. You are expected to leave the site on or before 8

th

June 2007.

Please co-operate.

Mrs Charity Munyasya

Provincial Forest Officer, Nairobi”

3

4. Further in a letter dated

23

rd

July 2008

to the Plaintiff, the Defendant expressly states as follows:

“You are advised to apply for an occupation of forest land license in Karura Forest Station so as to comply with the new conditions within the Forest Act 2005.”

35. Having failed to formalize its engagement with the 3

rd

Defendant, and having failed to heed the letters advising them to leave the forest the Plaintiff cannot now cry foul. The Plaintiff had ample time and could have mitigated its losses if they had relocated from the Forest on or before

8

th

June 2007

as directed by the 3

rd

Defendant.

36. The primary purpose of damages is to place the injured party in the position he/she would have been in had the contract been performed. The Plaintiff is under a duty to mitigate its losses and take reasonable steps to reduce its harm. For Plaintiff to succeed in a claim where special damages are sought, the same must be specifically pleaded and strictly proved. In the case of

Consolata Anyango Ouma V South Nyanza sugar Co. Ltd (2015) eKLR, J. Majanja

observed:-

“…

As a general principle, the purpose of damages for breach of contract is, subject to mitigation of loss, the claimant is to be put as far as possible in the same position he would have been if the breach complained of had not occurred

. This principle is encapsulated in the

latin

phrase restitution in

integrum

such damages are not damages at large or general damaged but are in the nature of special damages and they must be pleaded and proved…”

[own emphasis]

37. In

African Highland Produce Ltd Vs John Kisono CA 264/99 [2001] eKLR

, the Court of Appeal held that:-

“

It was the duty of the Plaintiff to take all reasonable steps to mitigate the loss he has sustained consequent upon the wrongful act in respect of which he sues, and he cannot claim damages of any sum which is due to his own neglect

.”

[own emphasis]

38. In this case the Plaintiff was warned severally to leave the Forest but did not heed that warning. The Plaintiffs also ignored the deadline of

8

th

June 2007

given by the 3

rd

Defendants. I find that the Plaintiff failed to take reasonable steps to mitigate the eventual loss it suffered.

39. In conclusion having found that the Plaintiff did not have an official license to occupy land within Karura Forest and having found that the Plaintiff failed to act to mitigate its losses, the upshot is that the Plaintiff have failed to prove its case on a balance of probability. Accordingly, I find no merit in the present suit and the same is hereby dismissed in its entirety with costs to the 3

rd

Defendant.

Dated in Nairobi this 19

th

day of June 2020.

............................................

Justice Maureen A. Odero