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ELCPartially AllowedJudicial review application (number not stated on the judgment copy)· [2016] KEELC 881 (KLR)

Republic v National Environment Tribunal & 2 others Ex-Parte West Kenya Sugar Co. Ltd [2016] KEELC 881 (KLR)

Environment and Land Court
18 May 2016
2,363 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Shaban Wandera, the 2nd Interested Party, moved the court by notice of motion dated 19th February 2016 seeking leave to be enjoined in judicial review proceedings, to set aside or suspend order 2 of the orders of 12th February 2016, and costs. The court had earlier, on 10th February 2016, granted West Kenya Sugar Company Limited leave to apply for certiorari to quash a letter dated 29th January 2016 issued by the National Environment Tribunal, with leave to operate as stay. At the interpartes hearing on 29th February 2016 the court enjoined the Interested Party. The Exparte Applicant then raised a preliminary objection that the remaining prayers (3, 4 and 6) were spent. The court framed four issues: whether the Tribunal's letter was an administrative decision or a communication of a statutory edict; whether it was amenable to judicial review; whether the prayers were spent; and costs. The court held that paragraph 3 of the letter merely restated Section 129(4) of EMCA, which requires maintenance of the status quo upon an appeal being filed, and was therefore not an administrative decision amenable to judicial review. Consistent with its own earlier decision in the Busia Sugar case, the court vacated the exparte orders of 10th February 2016 on its own motion and struck out the substantive application dated 10th March 2016, allowing the parties to pursue the pending Tribunal appeal. The preliminary objection was upheld as prayers 3, 4 and 6 were spent; prayer 2 (enjoinment) remained effective. Deviating from the normal rule that costs follow the events, the court ordered each party to bear their own costs. The ruling was delivered on 18th May 2016 by S.M. Kibunja, Judge of the Environment and Land Court.

Key legal issues

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01

Nature of the Tribunal's letter of 29th January 2016

Holding

The letter was a communication of the statutory edict in Section 129(4) of EMCA, not an independent administrative decision

Reasoning

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.

p. 4
02

Amenability of the letter to judicial review and fate of the exparte orders

Holding

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

Reasoning

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.

p. 5
03

Whether prayers 3, 4 and 6 of the Interested Party's application were spent

Holding

Yes - the preliminary objection was upheld as the prayers were framed to expire upon determination of the application

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The Exparte Applicant's preliminary objection is upheld - prayers 3, 4 and 6 of the application dated 19th February 2016 are spent
  3. 3.The exparte orders of 10th February 2016 (leave to apply for certiorari and stay) are vacated on the court's own motion
  4. 4.The substantive application dated 10th March 2016 is struck out
  5. 5.Each party will bear their own costs

Authorities

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Legislation

  • Environmental Management and Co-ordination Act (EMCA)Section 129(1)
  • Environmental Management and Co-ordination Act (EMCA)Section 129(4)
  • Civil Procedure RulesOrder 53 Rule 1(2)
  • Civil Procedure RulesOrder 53

Cases cited (3)

  • Republic -V- National Environment Tribunal Exparte National Housing Corporation
    [2012] eKLR
  • Republic -V- National Environment Tribunal & 2 Others Exparte Busia Sugar Ltd & Another (Busia H.C. MISC. App. No.84 of 2015)
    Busia H.C. MISC. App. No.84 of 2015
  • Gabriel Olong Oriwo & Another -V- Augustino Omwanda & Another
    [2015] eKLR
Jurisdiction invoked
Order 53 of the Civil Procedure Rules (judicial review)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.