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ELCPartially AllowedPetition E005 of 2023· [2023] KEELC 19179 (KLR)

Washumbu (Directed Agricultural) Company Limited v Mbiriri & 4 others

Environment and Land Court of Kenya
5 July 2023
7,924 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court halted unregulated mining in Taita pending trial, confirming that public health outweighs commercial loss in environmental disputes.

What this practically means

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Executive summary

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The Washumbu (Directed Agricultural) Company Limited, a company holding land in trust for the Washumbu community, filed a petition and Notice of Motion dated 21st February 2023 seeking conservatory orders restraining the 1st Respondent from conducting unregulated mining on LR Number 14206 – Taita, alleging environmental degradation, contamination of water sources, and health harms in breach of Articles 42, 69 and 70 of the Constitution. The 1st Respondent, Joseph Kamau Mbiriri, opposed, asserting he had held mining permits since 1987 and a valid EIA licence, and contended the petition was res sub judice given Mombasa ELC No. 423 of 2017 and Environment Tribunal Appeal No. 015 of 2022, and that there had been material non-disclosure. He separately moved to review and set aside conservatory orders issued on 2nd March 2023. The court framed three issues and, surveying the law on conservatory orders, found the petition raised a prima facie case with serious constitutional issues. Weighing prejudice, it held the public would suffer greater harm from emissions pending trial, and granted conservatory orders restraining unregulated mining pending determination of the petition. The 1st Respondent's review application was dismissed: review is not an appeal, is confined to error apparent on the face of the record, and the court would not disturb orders issued in circumstances where a prima facie case had been found. Costs of both applications were made costs in the cause, and the main petition was directed to be heard and determined within 180 days, by 24th January 2024.

Key legal issues

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01

Whether the Petitioner met the threshold for conservatory orders

Holding

The Petitioner established a prima facie case; greater prejudice would befall the public from emissions before determination, so conservatory orders were granted

Reasoning

The court applied the principles for conservatory orders: prima facie case with likelihood of success, risk of the petition being rendered nugatory, and public interest. It found the environmental and health allegations serious constitutional issues worth consideration, weighed the prejudice on a scale, and held that public interest in environmental protection outweighed the 1st Respondent's commercial prejudice during the pendency of the petition.

p. 11
02

Whether the 1st Respondent's application for review of the conservatory orders of 2nd March 2023 was merited

Holding

Dismissed; the applicant failed to demonstrate entitlement to review and the court would not interfere with a co-equal judge's discretionary orders

Reasoning

The court set out the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, stressing that review is not an appeal and requires error apparent on the face of the record or new and important matter. It held it would be improper to overturn orders issued by the same court when satisfied a prima facie case existed, and that the applicant had contributed to delay instead of pursuing the fast-tracked main petition.

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Costs of the two applications

Holding

Costs of both applications to be in the cause, given the main petition is still pending

Reasoning

Although the Petitioner succeeded on its application and the 1st Respondent's failed, the court invoked Rule 26 of the Mutunga Rules and the proviso to Section 27(1) of the Civil Procedure Act, and held that since the main petition was still on course, it was just and equitable that costs of the applications abide the outcome of the petition.

p. 15

Legal principles established

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  • Conservatory orders are public-law remedies in rem meant to preserve the subject matter of the dispute, not governed by the interlocutory injunction tests of irreparable harm and probability of success
  • The threshold for conservatory orders is a prima facie case with likelihood of success, that the petition would be rendered nugatory without the orders, and public interest
  • Review under Section 80 CPA and Order 45 is not an appeal and is confined to error apparent on the face of the record
  • A court should not disturb conservatory orders issued by a judge of co-ordinate jurisdiction; the remedy is review before the same judge or appeal

Court orders

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  1. 1.The Notice of Motion application dated 21st February, 2023 is found to have merit and is allowed in its entirety
  2. 2.A conservatory order restraining the 1st Respondent, whether acting directly or through third parties, agents and/or proxies, from conducting unregulated mining activities on LR. Number 14206 – Taita pending the hearing and determination of the Petition
  3. 3.The Notice of Motion application dated 10th March, 2023 is found to lack merit and is dismissed in its entirety
  4. 4.The Main Petition to be heard and determined within the next One Hundred and Eighty (180) days being on 24th January, 2024
  5. 5.All Respondents granted 14 days leave to file and serve their Responses
  6. 6.The Petitioner granted 7 days leave to file and serve further Affidavit on any new issues raised from the replies, if necessary
  7. 7.Mention for directions on disposal of the Petition
  8. 8.The costs of the two applications to be in the Cause
Jurisdiction invoked
Articles 22(1), 23, 258(1) and 70 of the Constitution of Kenya, 2010; Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013

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, "Washumbu (Directed Agricultural) Company Limited v Mbiriri & 4 others", Case Analysis (2023). Petition E005 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19179/eng@2023-07-05

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