AMU Power Company Limited v Lamu & 6 others (Civil Appeal 6 of 2019) [2022] KEELC 2999 (KLR)
The bottom line
#The Environment and Land Court refused to assign a five-judge bench to the Lamu coal plant appeal, so a single judge will decide it.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal and cross-appeal raise substantial questions of law under Article 165(4) of the Constitution
They do not; the issues concern public participation and cancellation of an EIA licence, which have been decided in many cases, so the matter can be heard by a single judge.
The court applied the guidelines from Chunilah v Mehta and the NASA case: whether the question affects substantial rights, is of general public importance, is open, not free from difficulty, or calls for discussion of alternative views. It found the public participation question settled in many cases. It also weighed Article 159(2)(b) on expeditious justice, noting the application was filed late, after submissions were filed and the matter set down for hearing, and would cause delay.
Whether the belated application was consistent with the overriding objective and expeditious disposal of disputes
The applicants offered no explanation for waiting until the appeal was ready for hearing, and the application would delay the case contrary to Article 159(2)(b) and Section 1A of the Civil Procedure Act.
The court observed that the general rule is that a single judge has jurisdiction to handle any question of law within his or her jurisdiction, and that certification should be made only in strict compliance with constitutional and statutory provisions. The application was lodged just after parties filed submissions and the matter had been set down for hearing, which conflicted with the constitutional demand for expeditious adjudication and the just, expeditious, proportionate and affordable resolution of civil disputes.
Legal principles established
#- Certification of a matter as raising a substantial question of law is an exercise of judicial discretion, not a right, and should be made only where absolutely necessary.
- An appeal concerning public participation and cancellation of an EIA licence, on issues settled in prior cases, does not raise a substantial question of law warranting an expanded bench.
Court orders
#- 1.The Notice of Motion dated 4th October 2021 seeking certification of the appeal and cross appeal as raising substantial questions of law is dismissed with costs
- 2.The appeal to proceed as earlier scheduled
- On appeal from
- National Environmental Tribunal (NET)
- NET Appeal No. 196 of 2016
- Jurisdiction invoked
- Article 165(4) of the Constitution; Section 21(2) of the Environment and Land Court Act, 2011; Section 79C of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "AMU Power Company Limited v Lamu & 6 others (Civil Appeal 6 of 2019) [2022] KEELC 2999 (KLR)", Case Analysis (2022). Environment and Land Court Appeal (arising from NET Appeal No. 196 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2999/eng@2022-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.