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ELCDismissedELC CIVIL APPEAL NO. 100 OF 2015 (ruling of National Environment Tribunal of 31st January 2020)· [2022] KEELC 246 (KLR)

Simba Corporation Limited v Director-General, National Environment Management Authority (NEMA) & Avic International Real Estate (EA) Ltd (Environment and Land Appeal 7 of 2020) [2022] KEELC 246 (KLR)

Environment and Land Court
20 April 2022
OMOguttu Mboya
5,500 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 dismissed an appeal, confirming tribunals can proceed with scheduled hearings despite last-minute applications or adjournment requests.

What this practically means

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Executive summary

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This is a first-instance appellate judgment of the Environment and Land Court at Nairobi, in which Oguttu Mboya J dismissed the appellant's appeal against a ruling of the National Environment Tribunal dated 31st January 2020, by which the Tribunal had dismissed the appellant's appeal against an EIA licence for a 43-floor building in Westlands, for want of prosecution and non-compliance with the Tribunal's directions. The appellant argued that the Tribunal erred in failing first to hear her pending contempt application against the 2nd Respondent, in refusing an adjournment on 31st January 2020, in ignoring the parties' consent not to proceed, and in giving short notice of the hearing. The court framed three issues. On the first two, it held that the Tribunal was entitled to proceed with the scheduled hearing notwithstanding the late-filed contempt application, which had neither attracted directions nor a hearing date, and that a litigant cannot throw an application on the face of an imminent hearing to obstruct it; moreover, no appeal had been filed against the directions of 29th January 2020. On the third issue, applying Mbogo v Shah, the court held that the Tribunal judicially exercised its discretion in refusing the adjournment, having regard to prior warnings issued on 27th September 2019 and 25th November 2019, the age of the appeal, and the appellant's repeated non-readiness. The court endorsed the principles that court orders are not mere suggestions, that 'justice shall not be delayed' is a constitutional principle, and that parties cannot by consent control the business of courts and tribunals. The appeal was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Tribunal was obliged to hear the pending contempt application before the appeal

Holding

Grounds 1 and 2 fail. The contempt application had no hearing date and no directions; the Tribunal was within its jurisdiction to direct that the appeal proceed to hearing. Any grievance against the directions of 29th January 2020 should have been pursued by an appeal against those directions, which was never filed.

Reasoning

The contempt application was filed on the face of a scheduled hearing after the Tribunal had already warned there would be no further adjournments. The court held the Tribunal was entitled to treat the application as a delaying tactic and to proceed with the appeal. Additionally, no appeal was lodged against the 29th January 2020 directions, rendering the ground misconceived.

02

Whether the Tribunal properly exercised its discretion in refusing the adjournment and dismissing the appeal

Holding

The refusal of the adjournment and the dismissal for want of prosecution were lawful. The Tribunal considered the age of the appeal, prior warnings of 27th September 2019 and 25th November 2019, and the appellant's flagrant non-compliance; the court would itself have reached the same conclusion.

Reasoning

Applying Mbogo v Shah, an appellate court will not interfere with discretion exercised judicially absent misdirection. The appellant had been repeatedly warned that no further adjournments would be granted, was granted one reluctant adjournment with directions, and still sought another adjournment on 31st January 2020. Her conduct was slovenly and lethargic and undeserving of further indulgence.

p. 10

Legal principles established

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  • An appellate court will not interfere with the exercise of discretion by a lower court or tribunal unless the decision is clearly wrong, based on misdirection, or on a failure to consider relevant matters
  • A litigant cannot file an interlocutory application on the face of an imminent hearing solely to delay, defeat or obstruct the scheduled hearing
  • Parties cannot by mutual consent control the business of a court or tribunal or expect it to rubberstamp a consent not to proceed with a scheduled hearing
  • Court and tribunal orders and directives must be complied with and are not mere suggestions

Court orders

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  1. 1.The Appeal be and is hereby Dismissed with costs to the Respondents.

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure ActSections 1A and 1B
  • National Environment Procedure RulesRules 19, 21 and 22

Cases cited (6)

  • Econet Wireless (K) Ltd v The Minister for Information and Communication & Another
    (2005) eKLR
  • Teachers Service Commission v Kenya National Union of Teachers & 2 Others
    (2013) eKLR
  • Mbithuka Titus v Jackline Mutindi
    (2020) eKLR
  • Mbogo v Shah
    [1968] EA page 93
  • Kenya Human Rights Commission v The Attorney General & Another
    (2018) eKLR
  • Said Sweilem Gheithan Saanum v Commissioner Of Lands (being sued through Attorney General) & 5 others
    [2015] eKLR
On appeal from
National Environment Tribunal
Appeal against the EIA License NEMA/EIA/PSL/2038 (ruling of 31st January 2020)
Jurisdiction invoked
First appellate jurisdiction over the National Environment Tribunal under the Environmental Management and Co-ordination Act (appeal against tribunal decision striking out the appellant's appeal for want of prosecution)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simba Corporation Limited v Director-General, National Environment Management Authority (NEMA) & Avic International Real Estate (EA) Ltd (Environment and Land Appeal 7 of 2020) [2022] KEELC 246 (KLR)", Case Analysis (2022). ELC CIVIL APPEAL NO. 100 OF 2015 (ruling of National Environment Tribunal of 31st January 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/246/eng@2022-04-20

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