Tawaqal Quarry Producers Co-operative Society Limited v Tahlil Construction and General Trading Company Ltd & 3 others; National Environment Management Authority & another (Interested Parties) [2020] KEELC 866 (KLR)
The bottom line
#The Environment and Land Court in Garissa refused to lift a consent order halting quarrying in Mandera, confirming consent orders bind parties unless fraud or collusion is proved.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for review of the consent order of 8th June 2020 is merited
The application for review is not merited; the applicants did not demonstrate fraud, collusion, an agreement contrary to public policy, or any other sufficient ground for review, and the alleged new evidence is not new because the substantive petition remains unheard.
The court applied the settled law from Flora Wasike v Destimo Wamboka and Hiram v Kassam that a consent order has contractual effect and may only be set aside on grounds justifying setting aside a contract, including fraud or collusion. The applicants invoked compliance with licensing requirements and public participation, but those are the very issues raised in the pending petition and notice of motion dated 11th May 2020, and thus cannot constitute new and important matter or sufficient reason for review.
Whether the circumstances for the injunction/status quo order still subsist
The status quo order remains in place because the application for review failed and the substantive application of 11th May 2020 is yet to be heard and determined.
Since the review application was dismissed, paragraphs 4 and 5 of the consent order - maintaining status quo and prohibiting quarrying activities - remain operative until the hearing and determination of the notice of motion dated 11th May 2020. The court did not disturb the consent order, so the circumstances for maintaining the status quo were not disturbed either.
Costs of the application
Costs of the dismissed application are awarded to the petitioner.
The ordinary rule that costs follow the event was applied: the application was dismissed for lack of merit, and the court exercised its discretion to award costs to the petitioner who successfully opposed the review.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract or if certain conditions remain unfulfilled.
- An order made in the presence and with the consent of counsel is binding on all parties and cannot be varied or discharged unless obtained by fraud, collusion, agreement contrary to the policy of the Court, consent given without sufficient material facts, or other reason enabling the court to set aside an agreement.
- Issues of compliance with licensing requirements that form the substratum of a pending petition cannot be determined in an interlocutory review application before the substantive petition is heard.
Court orders
#- 1.The Notice of Motion dated 23rd June 2020 is dismissed with costs to the petitioner
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tawaqal Quarry Producers Co-operative Society Limited v Tahlil Construction and General Trading Company Ltd & 3 others; National Environment Management Authority & another (Interested Parties) [2020] KEELC 866 (KLR)", Case Analysis (2020). Not stated on the face of the extract (Notice of Motion dated 23rd June 2020 in the petition filed 11th May 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/866/eng@2020-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.