Republic v National Environment Tribunal & 2 others Ex-Parte West Kenya Sugar Co. Ltd [2016] KEELC 881 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a Tribunal letter simply restating an EMCA statutory requirement cannot be challenged by judicial review.
What this practically means
#Executive summary
#Key legal issues
#Nature of the Tribunal's letter of 29th January 2016
The letter was a communication of the statutory edict in Section 129(4) of EMCA, not an independent administrative decision
Paragraph 3 of the letter directed that all activities relating to the appeal be stopped until the appeal was determined, which merely restated the language of Section 129(4) of EMCA requiring maintenance of the status quo upon an appeal being filed. Since it conveyed a statutory provision rather than exercising independent discretion, it was not an administrative decision amenable to judicial review. Prior decisions of the superior court on similar Tribunal letters were followed.
Amenability of the letter to judicial review and fate of the exparte orders
The letter is not amenable to judicial review, so the leave and stay orders of 10th February 2016 could not stand and were vacated on the court's own motion
Having found the letter was a communication of a statutory provision rather than a reviewable decision, the foundation for the certiorari application fell away. The court further found the leave had been obtained through misrepresentation and/or non-disclosure. Following its own earlier decision in the Busia Sugar case, the court vacated the exparte orders of 10th February 2016 so that parties could pursue the pending Tribunal appeal.
Whether prayers 3, 4 and 6 of the Interested Party's application were spent
Yes - the preliminary objection was upheld as the prayers were framed to expire upon determination of the application
Prayers 3 and 4 were framed to operate pending the 'hearing and determination of this application', not the substantive certiorari application. Once the ruling was delivered they would be spent. Prayer 6 on costs would likewise be spent since the court was pronouncing on costs in the ruling. The enjoinment under prayer 2, however, remained effective and the Interested Party retained the right to participate in the proceedings.
Legal principles established
#- A Tribunal letter communicating the status quo requirement of Section 129(4) of EMCA is an administrative communication, not an administrative decision, and is not amenable to judicial review
- Interim prayers phrased to expire on the hearing and determination of the application itself become spent once that application is determined
Court orders
#- 1.Prayer 2 of the notice of motion dated 19th February 2016 (enjoining Shaban Wandera as Interested Party) remains in force and he continues to participate in the proceedings
- 2.The Exparte Applicant's preliminary objection is upheld - prayers 3, 4 and 6 of the application dated 19th February 2016 are spent
- 3.The exparte orders of 10th February 2016 (leave to apply for certiorari and stay) are vacated on the court's own motion
- 4.The substantive application dated 10th March 2016 is struck out
- 5.Each party will bear their own costs
- Jurisdiction invoked
- Order 53 of the Civil Procedure Rules (judicial review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v National Environment Tribunal & 2 others Ex-Parte West Kenya Sugar Co. Ltd [2016] KEELC 881 (KLR)", Case Analysis (2016). Judicial review application (number not stated on the judgment copy). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/881/eng@2016-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.