Kiliavo Fresh Limited v National Environmental Tribunal; Big Life Foundation Party & another (Interested parties) [2021] KEELC 1996 (KLR)
The bottom line
#Kenya's High Court suspended a Tribunal decision over a wildlife corridor because the landowner was never heard or given the decision.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to leave for judicial review (Certiorari and Prohibition)
Leave granted; the Applicant raised pertinent process-based issues - non-involvement in the delineation and non-service of the decision
The court held that judicial review examines process not merits. The Tribunal did not engage the Applicant in reaching the decision of 23rd March 2021 and failed to furnish it with the decision, impeding any appeal. Relying on the FAA Act and Articles 47 and 50, the court found the Applicant had raised pertinent issues warranting leave to apply for Certiorari and Prohibition.
Whether leave should operate as a stay
Yes - leave ordered to operate as a stay of the Tribunal's decision of 23rd March 2021
Applying Mrao (prima facie case) and Taib A. Taib (purpose of stay in judicial review), the court found the Applicant is the owner of the suit lands undertaking approved mixed-use farming, and that the undisputed absence of engagement and non-supply of the decision demonstrated an apparent infringement justifying a stay to preserve the subject matter pending the substantive motion.
Section 130 EMCA immunity / exhaustion of remedies (Preliminary Objection)
Not a bar to leave at this stage; the Applicant was challenging process and could not appeal without the decision
The Respondent and Interested Parties argued the application offended section 130 and 133 of the EMCA and that the Applicant should have appealed to the High Court. The court did not uphold the objection at the leave stage, noting the Applicant was yet to receive the Tribunal's order despite several requests and thus lacked the material to draw grounds of appeal.
Legal principles established
#- Judicial review concerns the decision-making process, not the merits of the decision
- Rights to be heard and fair administrative action under Articles 47 and 50 must be respected when considering leave
- Leave granted may operate as a stay where there is an apparent infringement of rights
Court orders
#- 1.Leave granted to the Applicant to commence an application for Certiorari and Prohibition challenging the Respondent's decision dated 23rd March, 2021
- 2.Leave granted to operate as a stay of the decision granted on 23rd March, 2021
- 3.Applicant granted leave of 21 days to file and serve the substantive motion on Judicial Review orders of Certiorari and Prohibition
- 4.Costs in the cause
- Jurisdiction invoked
- Order 53 Rule 1(1) & (2) of the Civil Procedure Rules; Section 2(1), 7(1)(b), 7(2)(a)(i) and (ii) of the Fair Administrative Action Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiliavo Fresh Limited v National Environmental Tribunal; Big Life Foundation Party & another (Interested parties) [2021] KEELC 1996 (KLR)", Case Analysis (2021). Chamber Summons Application dated 1st April, 2021 (Judicial Review). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1996/eng@2021-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.