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ELCOther· [2020] KEELC 3966 (KLR)

Mohamud Iltarakwa Kochale & 5 others v Lake Turkana Wind Power Ltd & 4 others; Aaron Iltele Lesiantam & 4 others (Interested Parties) (as representatives of the residents of Loiyangalani District, Marsabit County) [2020] KEELC 3966 (KLR)

Environment and Land Court
18 May 2020
PNP. M. NjorogeJKJ. G. KemeiYAY. M. Angima
2,884 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 at Chuka fast-tracked a county government's bid to review a ruling that struck out its replying affidavit, but deferred any decision until all parties file written submissions.

What this practically means

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Executive summary

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This is an interlocutory ruling issuing directions on a Notice of Motion dated 17th April 2020 filed by the 2nd Defendant, supported by the affidavit of Joseph Guyo, County Secretary. The application sought certification as urgent, review and setting aside of the ruling delivered on 21st January 2020 which expunged the 2nd Defendant's replying affidavit to the Plaintiffs' application dated 26th April 2018, readmission of that replying affidavit, a stay of proceedings, and costs in the cause. The 2nd Defendant argued that the expungement infringed its right to a fair hearing under Articles 25 and 50 of the Constitution, offended natural justice, and that it was entitled to rely on Order 51(2) of the Civil Procedure Rules permitting filing of a response not less than three clear days before hearing, statutory provisions overriding the parties' consent on canvassing. It further alleged that the 1st Defendant misrepresented that the matter had been canvassed before a previous bench, and that the 2nd Defendant was denied the opportunity to canvass the admissibility of its affidavit. The court did not determine these merits. It certified the application urgent, directed that it be canvassed by written submissions, gave the applicant 14 days to file and serve submissions, allowed other parties 14 days after service, and reserved further directions until all submissions were filed. The ruling was delivered in chambers at Chuka on 18th May 2020.

Key legal issues

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01

Procedural handling of the 2nd Defendant's application for review and stay

Holding

The court did not determine the merits of the review application at this stage; it certified the application urgent and directed canvassing by written submissions with a 14-day filing timetable.

Reasoning

The ruling is expressly interlocutory. The court records the relief sought by the 2nd Defendant (review of the ruling of 21st January 2020, readmission of its replying affidavit, and stay of proceedings) but declines to rule substantively, instead issuing procedural directions pending full submissions by all parties.

p. 4

Legal principles established

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    Court orders

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    1. 1.The application dated 17th April, 2020 is certified urgent.
    2. 2.Application to be canvased by way of written submissions.
    3. 3.Applicant to file and serve written submissions within 14 days of today.
    4. 4.Other parties to file their submissions within 14 days after service on them by the applicant.
    5. 5.Further directions to be given after submissions have been filed by all parties.

    Authorities

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    Legislation

    • Civil Procedure RulesOrder 51(2)
    • Civil Procedure RulesOrder 2 Rule 15
    • Constitution of Kenya, 2010Article 50
    • Constitution of Kenya, 2010Article 25
    Jurisdiction invoked
    Original civil jurisdiction; review sought under the Civil Procedure Rules (Order 51(2) referenced by the applicant) against the court's own ruling of 21st January 2020

    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, "Mohamud Iltarakwa Kochale & 5 others v Lake Turkana Wind Power Ltd & 4 others; Aaron Iltele Lesiantam & 4 others (Interested Parties) (as representatives of the residents of Loiyangalani District, Marsabit County) [2020] KEELC 3966 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3966/eng@2020-05-18

    Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.