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Court of AppealPartially AllowedCivil Appeal No. 153 of 2019 (consolidated with Kisumu Civil Appeals Nos. 162, 187, 188, 189 and 367 of 2019)

Kibos Distillers Ltd & 4 others v Adega & 3 others (Civil Appeal 153 of 2019) [2020] KECA 875 (KLR)

Court of Appeal of Kenya
31 January 2020
ASAsike-MakhandiaKIKiageODOdek
29,086 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~116 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal cancelled demolition orders against Kibos factories, ruled environmental disputes belong first to the environment tribunal, and penalised NEMA for disowning its own licences.

What this practically means

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Executive summary

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Six appeals were consolidated by consent against the judgment of the Environment and Land Court at Kisumu (Kibunja, J) of 31st July 2019, which had declared that the right of the 1st-3rd respondents to a clean and healthy environment under Articles 42 and 43 of the Constitution had been violated, cancelled the EIA Licences issued to the Kibos companies, and issued permanent injunction, restoration and demolition orders. Writing the lead judgment, Makhandia JA allowed the appeal. The court held that the ELC had no original jurisdiction: disputes on the validity of EIA Licences and alleged pollution fell to the National Environment Tribunal and the National Environmental Complaints Committee under EMCA, and multifaceted drafting could not confer jurisdiction. On the merits, the court found the trial judge had erred in retrospectively applying the EMCA 2015 amendments and the 2010 Constitution to a licence issued in 2005 under EMCA 1999 and Regulation 10(2); the presumption of regularity in NEMA's issuance of the licences had not been rebutted. The finding of river pollution was set aside for want of scientific, empirical and sampling evidence establishing point pollution and causal link. The NEMA Compliance Status Report of April 2019, admitted as additional evidence, showed 95-100% compliance, rendering the restoration, injunction and demolition orders disproportionate and overtaken by events. The court affirmed that there is no automatic right to viva voce evidence where no application or objection was made, but directed continuous monitoring inspections and annual environmental audits. Save for the affirmed findings, the judgment and decree of the ELC were set aside in entirety, with costs against the respondents jointly and severally and against NEMA for disowning licences it had itself issued. Kiage JA concurred fully; Odek JA sadly passed away before delivery and the judgment issued under rule 32(3) of the Court of Appeal Rules.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned judge erred in holding that the ELC had jurisdiction vis-a-vis the National Environment Tribunal and the National Environmental Complaints Committee
  2. 2.What probative value should attach to the additional evidence adduced before the Court
  3. 3.Whether the judge erred in failing to admit viva voce evidence
  4. 4.Whether the claim of constitutional violation was pleaded with specificity
  5. 5.Whether the judge erred in finding the three appellants responsible for polluting and degrading the environment contrary to Articles 42 and 43
  6. 6.Whether the judge erred in finding that the respondents' human rights had been violated
  7. 7.Whether the judge erred in finding the EIA Licences and their variation were illegally, unprocedurally and unconstitutionally acquired
  8. 8.Whether the judge erred in issuing the restorative and demolition orders
  9. 9.Whether the judge erred in failing to award compensation to the respondents
  10. 10.Whether the court erred in ordering the appellants to pay the costs of the petition

Key legal issues

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01

Jurisdiction of the ELC versus the NET and NECC

Holding

The ELC erred in assuming original jurisdiction; disputes on the validity of EIA Licences and alleged pollution fall within the original jurisdiction of the NET and NECC under EMCA.

Reasoning

The court held that multifaceted drafting cannot confer jurisdiction, that original jurisdiction is neither an ouster nor an all-inclusive clause, and that Section 129(3) of EMCA empowers the Tribunal to consider even the constitutional-flavoured prayers. The trial court's assumption of jurisdiction rendered otiose Section 130(5) of EMCA making ELC appellate decisions final.

p. 15
02

Procedural validity of EIA Licence No. 0000259

Holding

The licence was lawfully issued under EMCA 1999 and Regulation 10(2) on the basis of a Project Report; no EIA study was required in 2004 and the judge erred in applying the EMCA 2015 amendments and the 2010 Constitution retrospectively.

Reasoning

Under EMCA 1999 as in force in 2004, only a Project Report was required, and Regulation 10(2) permitted NEMA to issue a licence where the project had no significant impact or disclosed sufficient mitigation. The presumption of regularity was not rebutted by conflicting statutory interpretation, and the 2010 Constitution's public participation values could not govern a 2005 licence.

p. 26
03

Proof of pollution and the right to a clean environment

Holding

The trial court's finding of pollution was unsupported; pollution requires scientific, empirical and sampling evidence establishing point pollution and causal link.

Reasoning

The court re-evaluated the NECC, County Government and NEMA reports, finding no chemical analysis, no sampling technique, and no expert proof that vinasse was deleterious. Complaints raised over years were not proof of degradation. The NEMA Compliance Status Report of April 2019, admitted as additional evidence, showed 95-100% compliance and recommended lifting the closure order.

p. 20
04

Viva voce evidence and fair hearing in constitutional petitions

Holding

Failure to take viva voce evidence did not vitiate the trial since no party applied for oral evidence or objected to the directions under Rule 20(1) of the Mutunga Rules, and no prejudice was demonstrated.

Reasoning

There is no automatic right to an oral hearing; the critical question is meaningful participation. Although in obiter the two hotly contested issues (licensing procedure and pollution) would have been better determined on oral evidence, the judge had a discretion that was not perversely exercised, and no credibility issues were raised.

p. 18
05

Variation and transfer of EIA Licences

Holding

The trial judge erred in nullifying the variation and transfer; the conditions precedent in Section 64(1) EMCA 1999 were not shown to be fulfilled, and the discretion vested in NEMA could only be challenged on appeal to the Tribunal.

Reasoning

NEMA's letters of 9th November and 1st December 2010 approved the variations subject to audit conditions rather than cancelling the licences. No evidence showed substantial unforseeable threat or false information under Section 64(1). The judge usurped a discretion vested in NEMA and exercised original jurisdiction where only appellate jurisdiction existed.

p. 27

Legal principles established

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  • A litigant cannot confer jurisdiction on a court or oust that of a competent tribunal by the art and craft of drafting multifaceted pleadings; multifaceted claims are not a legally recognised mode of conferring jurisdiction.
  • Original jurisdiction is not an ouster clause; where a clear procedure for redress is prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed.
  • The absence of an environmental impact assessment study does not of itself create a presumption of environmental threat, harm or degradation.
  • The procedural validity of a licence is determined by the law in force when it was issued; legislation is presumed prospective absent express retrospective intent.
  • There is a presumption of regularity in the discharge of official duties, rebuttable only by cogent, clear and uncontroverted evidence.
  • Neither urgency nor an alleged constitutional violation per se justifies dispensing with viva voce evidence; where a party applies for oral evidence the court should grant it unless it records reasons to the contrary.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment, declaratory orders and decree of the Environment and Land Court in Kisumu ELC Petition No. 8 of 2018 delivered 31st July 2019 set aside in entirety, save as otherwise affirmed in the judgment
  3. 3.Findings in paragraphs 17 and 18 of the impugned judgment (that no EIA study was required for Licence No. 0000259) affirmed
  4. 4.Restorative, injunctive and demolition orders set aside
  5. 5.NEMA and/or NECC to continuously conduct inspections at the three appellants' factories to monitor compliance with environmental standards
  6. 6.The three appellants to annually (or as directed by a competent organ) conduct an environmental audit of their projects and submit a report to NEMA, NECC or other competent organ
  7. 7.The 1st, 2nd and 3rd respondents to jointly and severally bear the costs of the appeal and of the suit before the ELC
  8. 8.The 4th respondent (NEMA) to jointly bear the costs of the suit before the ELC and of the appeal with the 1st to 3rd respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AS
majority

Wrote the judgment

Wrote the principal judgment allowing the consolidated appeals, holding that the ELC lacked jurisdiction vis-a-vis the NET and NECC, that the EIA Licences were validly issued under EMCA 1999, and setting aside the trial judgment save for the affirmed findings, with costs against the respondents and NEMA.

In the final analysis, the upshot of the foregoing is that this appeal has merit and is hereby allowed.p. 29
KI
concurring

Wrote the judgment

Concurred in a short separate judgment agreeing with the lead judgment of Makhandia JA in its entirety, including the allowance of the appeal and the costs orders.

I agree with the final determination allowing the consolidated appeal, as well as the orders on costs that he proposes.p. 30
OD
majority
On appeal from
Environment and Land Court of Kenya at Kisumu
Petition No. 8 of 2018
Jurisdiction invoked
First appeal from the Environment and Land Court under Article 164 of the Constitution and the Court of Appeal Rules; judgment delivered under rule 32(3) of the Court of Appeal Rules following the death of Odek, JA
Consolidated with
Kisumu Civil Appeal No. 162 of 2019, Kisumu Civil Appeal No. 187 of 2019, Kisumu Civil Appeal No. 188 of 2019, Kisumu Civil Appeal No. 189 of 2019, Kisumu Civil Appeal No. 367 of 2019

Relief refused

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Finding of river pollution and environmental degradation against the appellants

No scientific, empirical or sampling evidence proved point pollution or a causal link to the appellants' activities

p. 20

Demolition and closure orders against the appellants' structures

Disproportionate and overtaken by the demonstrated compliance in NEMA's April 2019 Compliance Status Report; no proof the structures per se caused pollution

p. 28

Respondents' presumption that absence of an EIA study proves environmental harm

No legal principle or authority establishes such a presumption; harm is a question of fact

p. 19

Costs

The 1st, 2nd and 3rd respondents shall jointly and severally bear the costs of this appeal and the costs before the ELC; the 4th respondent (NEMA) shall also jointly with the 1st, 2nd and 3rd respondents bear the costs of the suit before the ELC and in this appeal, its conduct in issuing and then disowning the EIA Licences being condemned by way of costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Save as otherwise affirmed in this judgment, I hereby set aside in entirety the judgment, declaratory orders and the decree of the Environment and Land Court delivered on 31st July 2019 in Kisumu ELC Petition No. 8 of 2018.
p. 30Final orders / disposition
Accordingly, the 1st, 2nd and 3rd respondents shall jointly and severally bear the costs of this appeal and the costs before the ELC.
p. 30Costs order
The concept of multifaceted claim is not a legally recognized mode for conferment of jurisdiction to any court or statutory body.
p. 15Jurisdiction
There is no presumption of threat or harm to the environment simply because no environmental impact assessment study has been done.
p. 19Burden of proof in environmental claims
Pollution is primarily proved by empirical, technical and scientific evidence and not by lay man opinion testimony or depositions.
p. 20Standard of proof of pollution
Settled principles of legislative construction presume that legislation is not intended as retroactive unless its language expressly makes it retroactive.
p. 24Retroactivity of statutes
A public body cannot issue a licence and then turn around and disown the same. Such a conduct must be condemned by way of costs.
p. 30Accountability of public bodies
In the final analysis, the upshot of the foregoing is that this appeal has merit and is hereby allowed.
p. 29Disposition

Issues in the judgment

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material

The judgment contains an internal tension: the court holds that the trial court had no jurisdiction and sets aside its judgment in entirety, yet still re-evaluates the merits, affirms findings in paragraphs 17 and 18 of the impugned judgment, and issues continuing supervisory orders.

minor

The date of the ruling admitting additional evidence is inconsistently given as 10th October 2019 and 9th October 2019 within the same judgment.

minor

Typographical error in the date of the petition ('25 th October 3028').

minor

The judgment is delivered under rule 32(3) following the death of Odek, JA before delivery, so the judgment reflects the views of only two of the three coram judges.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (19)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kibos Distillers Ltd & 4 others v Adega & 3 others (Civil Appeal 153 of 2019) [2020] KECA 875 (KLR)", Case Analysis (2020). Civil Appeal No. 153 of 2019 (consolidated with Kisumu Civil Appeals Nos. 162, 187, 188, 189 and 367 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/875/eng@2020-01-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.