Endmor Steel Millers Limited v County Government of Machakos [2020] KEELC 1518 (KLR)
The bottom line
#A Kenyan court allowed a steel company to challenge its county-ordered factory closure, but refused to let it reopen immediately over pollution fears.
What this practically means
#Executive summary
#Key legal issues
#Arguability for grant of leave to apply for judicial review
The Applicant had an arguable case as to whether it was heard before closure of its factory
The court applied the settled test that leave is granted where, without going into depth, there is an arguable case. The deposition that the Respondent closed the factory despite pending Tribunal proceedings on the same pollution allegations showed a non-frivolous question of fair hearing under Article 47, meriting leave for certiorari, mandamus and prohibition.
Whether leave should operate as a stay
Stay was declined because the closure was already implemented and the precautionary principle counsels against reopening the factory before full hearing
The court distilled the factors from Munir Sheikh Ahmed and James Mburu Gitau: implementation status, ongoing nature of the decision, and nugatory risk. Since the factory was already closed, stay would amount to a mandatory reinstatement order. Given allegations of poisonous gas emissions, the court invoked the precautionary principle (Rio Principle 15) to decline stay pending the substantive motion.
Legal principles established
#- Leave stage is a filter: leave should be granted where, without going into the matter in depth, the court considers there is an arguable case
- Stay in judicial review depends on whether the impugned action has been completed, whether it is ongoing, and whether the decision would render the review nugatory
- The precautionary principle guides the court in environmental disputes and applies where there are threats of serious or irreversible damage despite lack of full scientific certainty
Court orders
#- 1.Leave granted to apply for judicial review order of certiorari to quash the Closure letters dated 13th July, 2020 and 14th July, 2020
- 2.Leave granted to apply for judicial review order of mandamus to compel the Respondent to re-issue the Business License for the year 2020
- 3.Leave granted to apply for judicial review order of prohibition against further administrative action in respect of pollution allegations forming the subject matter of NET 003/2019
- 4.Prayer for leave to operate as a stay of the Respondent's decisions denied
- 5.Costs of the Application to be in the cause
- Jurisdiction invoked
- Sections 8 and 9 of the Law Reform Act and Order 53 of the Civil Procedure Rules; Section 18 of the Environment and Land Court Act and Section 3(5) of EMCA
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Endmor Steel Millers Limited v County Government of Machakos [2020] KEELC 1518 (KLR)", Case Analysis (2020). Judicial Review Application (Chamber Summons dated 14th July, 2020), Machakos. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1518/eng@2020-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.