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ELCDismissedEnvironment and Land Appeal E007 of 2020· [2023] KEELC 16266 (KLR)

London Distillers (K) Limited v National Environment Management Authority & another

Environment and Land Court
13 March 2023
7,033 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that finishing construction does not end an environmental licence challenge, so the appeal must still be heard.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (A. Nyukuri, J) determined a notice of motion dated January 13, 2023 by the 2nd respondent, Erdermann Properties Limited, seeking to strike out or dismiss the appellant London Distillers' appeal (ELC Appeal E007 of 2020) against a National Environment Tribunal judgment of September 30, 2020 which had dismissed London Distillers' challenge to an EIA licence issued by NEMA for the Greatwall Gardens Housing Phase 3 project at Athi River. The applicant argued the appeal was overtaken by events because construction was complete and units sold to innocent purchasers holding individual titles; that NET's dismissal was a negative order incapable of execution or stay; that an EIA licence can only be challenged within 24 months under Section 67 of EMCA; and that determining the appeal would condemn undisclosed purchasers unheard. London Distillers opposed, contending the applicant acted with unclean hands, continued construction in contempt of NET's status quo orders, and that the appeal raised live questions on the legality of the EIA licence under Sections 58, 59, 60 and 63 of EMCA, with prayers for revocation of the licence and demolition. The court framed two issues: res judicata and whether the appeal was overtaken by events. It found the application not res judicata, the prior November 4, 2020 application having concerned sub judice, a different issue. On mootness, it held the validity of the EIA licence remained live and that completion of construction does not moot an environmental appeal, which must be tested against sustainable development. The applicant's unclean hands and attempt to destroy the appeal's substratum weighed against striking it out, and the alleged purchasers' rights were unproven and undisclosed. The motion was dismissed with costs to the respondent/appellant.

Key legal issues

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01

Res judicata

Holding

The application is not res judicata because the issues differ from those in the former application of November 4, 2020, and the documents relied on post-date that determination

Reasoning

The former application sought striking out on sub judice grounds; the instant one alleges the appeal is overtaken by events. The grounds have no nexus, and the completion certificates were acquired after the former application was determined on 21 May 2021, so the issues could not have been raised earlier. A new striking-out ground arising later may be raised in good faith.

p. 9
02

Mootness / appeal overtaken by events

Holding

The appeal is not moot; the validity of the EIA licence and prayers for revocation and demolition remain live despite completion of construction

Reasoning

The appeal challenges the legality of the EIA licence under Sections 58, 59, 60 and 63 of EMCA. Completion of construction does not extinguish those issues; environmental matters must be tested against sustainable development under Article 10(2) of the Constitution and Section 3(5) of EMCA. The Applicant, aware of the appeal and Section 130(4) of EMCA, proceeded with construction with unclean hands to destroy the substratum.

p. 10
03

Rights of alleged innocent purchasers vs right to fair hearing

Holding

The court cannot deny the Appellant its right of appeal under Section 130(1) of EMCA to uphold purported rights of undisclosed, unproven third-party purchasers

Reasoning

The Applicant provided no evidence of sale or transfer of the individual units or of the existence of the titles. The alleged purchasers are not parties. The Respondent's right to a fair hearing under Article 50 includes the right to have its appeal heard on merit.

p. 11
04

Section 67 of EMCA (24-month challenge period)

Holding

Section 67, which concerns NEMA's power to suspend a licence for non-compliance, has no bearing on a challenge to the validity and legality of the licence

Reasoning

Counsel for the Applicant argued the court's hands were tied because an EIA licence can only be challenged within 24 months under Section 67. The court held that Section 67 deals with suspension for licensee non-compliance, not with the validity of the licence, and so does not bar the appeal.

Legal principles established

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  • An appeal on the legality and validity of an EIA licence does not become moot merely because the impugned construction has been completed; environmental matters must be tested against sustainable development
  • A party cannot benefit from its own unilateral acts taken with unclean hands to render an appeal academic; the court will not strike out an appeal on that basis
  • No decision or order of the Tribunal shall be enforced until the time for lodging an appeal has expired or the appeal has been determined

Court orders

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  1. 1.The notice of motion dated January 13, 2023 is dismissed with costs to the respondent/appellant

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure Rules, 2010Order 2 Rule 15
  • Environmental Management and Coordination Act (EMCA)Sections 3(5), 58, 59, 60, 63, 67, 68, 130(1), 130(2), 130(4)
  • Environmental (Impact Assessment and Audit) Regulations 2003Regulations 7, 8, 9, 10, 20, 21(2)
  • Environmental Management and Coordination (Noise and Excessive Vibration) (Control) Regulations 2009
  • Environment Management and Coordination (Air Quality) Regulations, 2014
  • Environment and Land Court ActSection 18
  • Constitution of Kenya, 2010Articles 10(2), 25, 48, 50, 50(k), 159, 159(2)(a)
  • Physical Planning Act

Cases cited (17)

  • Nadeem A. Kana v Lucy Wambui Mwangi
    [2021] eKLR

    Courts should not adjudicate matters overtaken by events; victory would be purely academic

  • Ernice Campbell and Company Limited v National Housing Corporation
    [2019] eKLR

    Moot/overtaken-by-events doctrine

  • Julius Mutiga & 16 Others v Ministry of Agriculture & 3 others
    [2020] eKLR

    Moot/overtaken-by-events doctrine

  • John Aguga & 3 others v Chairman Selection Panel for Recruitment of Chair and Members of Migori County Service Board & 2 Others
    [2020] eKLR

    Moot/overtaken-by-events doctrine

  • Zenith Plastics Industries Ltd v Samotech Ltd
    [2018] LPELR-44056 (SC)

    Fair hearing means justice is done to all parties at all costs

  • Sangram Singh v Election Tribunal, Koteh
    AIR 1955 SC 664

    Fair hearing demands all parties be heard before determination

  • Pam & another v Mohammed
    [2008] 16 NWLR (Pt 1112)

    Fair hearing demands opportunity to present one's case

  • Ephraim Miano Thamaini v Nancy Wanjiru Wangai & 2 others
    [2022] eKLR

    Abuse of court process lies in the intention, purpose and aim of the litigant

  • Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 others
    Civil Appeal No 25 of 2002 [2009] eKLR 229

    Abuse of court process doctrine

  • Sammy Kemboi Kipkeu v Bowen David Kangogo & 2 others
    [2018] eKLR

    Abuse of court process doctrine

  • Pop-In (Kenya) Ltd & 3 others v Habib Bank AG Zurich
    [1990] eKLR

    A party cannot raise new matters which ought to have been raised in previous proceedings

  • Yat Tung Investment Co. Ltd v Dao Hery Bank Ltd & another
    [1975] AC 381

    Res judicata / raising matters previously open to a party

  • Ephraim Godeka Lugalia v Johnstone Onyino & 5 others; Benard Askari Godeka (Interested Party/Applicant)
    [2021] eKLR

    Court cannot make orders in favour of unknown persons not parties to the suit

  • Bundari Investment & Co. Ltd v Martin Chiponda
    [2022] eKLR

    Courts should maintain sanity where a party seeks to steal a match

  • Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    [2017] eKLR

    Elements and purpose of the doctrine of res judicata

  • Evans Kidero v Speaker of Nairobi City County Assembly & another
    [2018] eKLR

    Definition of mootness and academic suits

  • Peter K. Waweru v Republic
    [2006] eKLR

    Environmental rights have a direct bearing on the right to life

On appeal from
National Environment Tribunal
Nairobi NET No. 21 of 2019
Jurisdiction invoked
Section 130(1) of the Environmental Management and Coordination Act (appellate jurisdiction of the Environment and Land Court over NET decisions)

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, "London Distillers (K) Limited v National Environment Management Authority & another", Case Analysis (2023). Environment and Land Appeal E007 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16266/eng@2023-03-13

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