Save Lamu & 5 others v National Environmental Management Authority (Nema) & another [2019] KEELC 4739 (KLR)
The bottom line
#A Kenyan court refused to pause tribunal proceedings over the Lamu coal plant appeal, ruling delays can't be used to stall concluded cases.
What this practically means
#Executive summary
#Key legal issues
#Threshold for stay of proceedings pending appeal
Stay of proceedings is discretionary; the court must weigh the need for expeditious disposal, prima facie arguability of the appeal, scarcity of judicial time and timeliness of the application
The court adopted the Global Tours and Travels test as the governing threshold. Applying it, the court found the NET appeal had been pending since 2016, the Appellants had already testified 12 of 17 witnesses and cross-examined the respondents' witnesses, and the Tribunal had acted to expedite the matter. Granting a stay where the Tribunal matter had been concluded would defeat Article 159's command of expeditious disposal.
Effect of the Tribunal's dismissal of the adjournment application
The Appellants' remedy for the declined adjournment lies in the appeal itself, under Section 130(4)(a) and (b) of EMCA, not in staying the concluded Tribunal proceedings
The court held that the remedies under Section 130(4) of EMCA — confirming, setting aside or varying the decision, or remitting the proceedings with instructions for further evidence — remain available to the Appellants upon hearing the appeal. A stay would serve no purpose since the Tribunal matter had already concluded and the Appellants' right of appeal remains unfettered.
Whether the appeal would be rendered nugatory without a stay
No - following Omagwa Onyancha, the Tribunal proceedings would come to an end and any success on appeal can be remedied by appropriate orders including costs
Relying on Omagwa Onyancha and Christopher Ndolo Mutuku, the court reasoned that since the hearing before the Tribunal had commenced it would come to an end and a judgment delivered; if the Appellants succeed in the appeal, appropriate orders under Section 130(4) of EMCA, including an order for costs, can remedy any prejudice. Stay of proceedings was therefore not necessary to preserve the appeal.
Legal principles established
#- Whether to grant a stay of proceedings is a matter of judicial discretion to be exercised rationally in the interest of justice, weighing expeditious disposal, arguability of the appeal, judicial time and timeliness of the application
- An appellate court will not normally interfere with the exercise of a tribunal's or court's discretion on adjournment unless it is shown the discretion was not exercised judiciously
- The right of appeal must be balanced against the opposing party's right to have its case determined without unreasonable delay; proceedings should not be hindered without just and sufficient cause
Court orders
#- 1.The application dated 24th September 2018 is dismissed with costs to the Respondents
- On appeal from
- National Environment Tribunal
- NET Appeal No. 196 of 2016
- Jurisdiction invoked
- Section 130(4) of the Environmental Management and Co-ordination Act (EMCA); Order 42 Rule 6(1) and (2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Save Lamu & 5 others v National Environmental Management Authority (Nema) & another [2019] KEELC 4739 (KLR)", Case Analysis (2019). NET Appeal No. 196 of 2016 - Notice of Motion dated 24th September 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4739/eng@2019-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.