Kipsirgoi Investments Limited v Local Authorities Pension Trust Registered Trustees; National Environment Management Authority (Interested Party) (Petition E033 of 2021) [2022] KEELC 3220 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to undo contempt orders, ruling that evidence already in a party's possession is not 'new evidence' justifying review.
What this practically means
#Executive summary
#Key legal issues
#Whether new and important matter or evidence justified review of the contempt orders of 2nd December 2021
No; the letters from the contractor were always in the Respondent's possession and no due diligence was shown
Order 45 Rule 1 limits review to discovery of new and important matter, error on the face of the record, or other sufficient reason. The Respondent's new evidence (letters of 20th and 22nd September 2021 and a progress report) was in its possession before the contempt ruling. It also failed to file a Replying Affidavit despite being granted seven days to do so on 5th October 2021, so its counsel's-choice-of-PO excuse failed.
Whether mistake of counsel excused the Respondent's failure to respond to the contempt application
No; the court had granted leave to file a Replying Affidavit and the Respondent never did, so no mistake occasioned the omission
The record showed that on 5th October 2021 the Respondent's advocate sought and obtained seven days' leave to respond to the contempt application. The Respondent filed submissions but no Replying Affidavit. Therefore the alleged presumption that the Preliminary Objection would be heard first was unfounded and the omission was the Respondent's own remissness, not counsel's blunder.
Whether further contempt proceedings should be stayed
No; the stay was moot and, review having been refused and no appeal filed, a stay cannot issue in vacuum
The stay sought was only pending the hearing of the instant application and had therefore been overtaken by events. Since the court declined to review or set aside the contempt orders and no appeal was pending against them, there was no substantive basis on which a stay of the contempt proceedings could be grounded.
Whether the court could determine whether the contempt had been purged
No; that was not the question before the court and could be raised in a separate application or in mitigation
Having declined the review, the court could not independently interrogate the purge of contempt. The propriety of mitigation and purge would arise only at sentencing, which the applicant had not yet reached, so the issue was outside the scope of the review application.
Legal principles established
#- Review on the ground of discovery of new and important evidence requires strict proof that the evidence could not, with due diligence, have been produced before the order was made
- Review is not a vehicle to give a losing party a second innings arising from its own negligence or indifference
Court orders
#- 1.The application dated 9th December, 2021 is dismissed
- 2.Costs of the application awarded to the Petitioner
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1(1) of the Civil Procedure Rules, 2010 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipsirgoi Investments Limited v Local Authorities Pension Trust Registered Trustees; National Environment Management Authority (Interested Party) (Petition E033 of 2021) [2022] KEELC 3220 (KLR)", Case Analysis (2022). Petition No E033 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3220/eng@2022-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.