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ELCDismissedJudicial Review proceedings re closure of Kiamaiko slaughter houses (Motion dated 17th March, 2022)· [2022] KEELC 3948 (KLR)

Borbor & 14 others v National Environment Management Authority; Neema Livestock & Slaughtering Investments Limited & 12 others (Intended Interested Party) (Environment and Land Judicial Review Case 2 of 2022) [2022] KEELC 3948 (KLR)

High Court of Kenya
16 June 2022
2,840 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 17th March 2022 in which Neema Livestock & Slaughtering Investment Limited sought leave to be enjoined as an interested party in judicial review proceedings brought by the Ex-parte Applicants challenging the Respondent's direction to close their Kiamaiko slaughter houses. The intended Interested Party, a licensed slaughter house operator at Lucky Summer with about 3000 shareholders, argued it was a directly affected party aggrieved by the Ex-parte Applicants' misrepresentations, and relied on Order 53 Rule 3(2) and (4) of the Civil Procedure Rules. The Respondent did not oppose the application; the Ex-parte Applicants opposed it, contending the applicant was a business rival with no identifiable stake, located about 20 kilometres from Kiamaiko, and not mentioned in the impugned notice. Counsel for the Ex-parte Applicants relied on the Supreme Court's decision in Francis Kariuki Muriaetu, setting out the elements for joinder as an interested party, and on the Kenya Medical Laboratory Technicians case on the identifiable stake test. The court, applying Muriaetu, found that the intended Interested Party's interest was neither clearly identified nor proximate; the challenged decision did not refer to it; it had in fact supported the Respondent's closure decision; and its concerns arising from 'publicity and wild rumours' were remote. Prejudice from non-joinder was not demonstrated. The application was dismissed with costs.

Key legal issues

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01

Identifiable stake or legal interest for joinder

Holding

The intended Interested Party had no identifiable or proximate interest; its abattoir is at Lucky Summer, far from Kiamaiko, and the challenged decision did not refer to it

Reasoning

The court noted that the verbal pronouncement of 1st February 2022 did not mention the intended Interested Party or its area of operations, and that the intended Interested Party itself acknowledged its abattoir is in Lucky Summer while the slaughter houses to be closed are in Kiamaiko. It failed to show by evidence how the closure decision affects its members' interests, and its application in fact supported the Respondent's decision.

p. 6
02

Prejudice from non-joinder

Holding

No prejudice was demonstrated; the reputational concerns about 'publicity and wild rumours' were too remote

Reasoning

Applying the Francis Kariuki Muriatetu test, the court held that the prejudice must be clearly outlined and not remote. The intended Interested Party's concerns about clarifying to livestock suppliers that its slaughter house is hygienic and distinct from Kiamaiko did not meet this threshold and were peripheral to the judicial review claim.

p. 6

Legal principles established

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  • Enjoinment as an interested party is discretionary, not of right, and requires an identifiable and proximate personal interest or stake, demonstration of prejudice from non-joinder, and a demonstration of the relevance of the submissions the party intends to make
  • An interest that is merely reputational or commercial and remote from the claim cannot found joinder

Court orders

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  1. 1.The intended Interested Party's application dated 17th March, 2022 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 53 Rule 3(2) and (4)

Cases cited (2)

  • Kenya Medical Laboratory Technicians and Technologists Board & 6 Others v Attorney General & 4 Others
    [2017] eKLR
  • Francis Kariuki Muriaetu & Another v R & 5 Others
    [2016] eKLR
Jurisdiction invoked
Order 53 Rules 3(2) and (4) of the Civil Procedure Rules

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, "Borbor & 14 others v National Environment Management Authority; Neema Livestock & Slaughtering Investments Limited & 12 others (Intended Interested Party) (Environment and Land Judicial Review Case 2 of 2022) [2022] KEELC 3948 (KLR)", Case Analysis (2022). Judicial Review proceedings re closure of Kiamaiko slaughter houses (Motion dated 17th March, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3948/eng@2022-06-16

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