Kopoa Developers Limited v Endesk Properties Limited & another (Environment and Planning Appeal E010 of 2024) [2025] KEELC 4398 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Jurisdiction of the Tribunal
- 2.Whether the Appellant's right to be heard was violated
- 3.Whether there was sufficient evidence proving the contempt
Key legal issues
#Whether the Tribunal had jurisdiction to order a site visit and stoppage of construction
The Tribunal acted within its jurisdiction under section 126(2) of EMCA and Rule 22(6) of the NET Procedure Rules 2003 in ordering a site visit and preservation orders; a party aggrieved by those orders should have appealed rather than disobey them
The court held that zoning determinations were not before the Tribunal, but the contempt findings related only to disobeying interlocutory orders for a site visit and preservation of the subject matter. Site visits are a fact-finding judicial process clothed by Rule 22(6). Parties were informed of the date and could be present. Disagreement with the orders was no ground to disobey them.
Whether the Appellant's right to be heard was violated
No violation; the Appellant filed a replying affidavit sworn by its director, which the Tribunal considered, and failed to file submissions within the timelines set
The replying affidavit afforded the Appellant the opportunity to counter the allegations and adduce evidence, and the Tribunal expressly considered it in the impugned ruling. The director sought to be committed was aware of the orders sought. The law requires only a reasonable opportunity to be heard; failure to file submissions did not amount to denial of a hearing.
Whether there was sufficient evidence of contempt
Yes; the photographs were admissible since section 126(1) of EMCA excludes the Evidence Act, and the Appellant adduced no contradicting evidence, leaving nothing to review on the first appeal
The Tribunal's exclusion of the Evidence Act meant section 106B authentication requirements did not apply. The Tribunal relied on the photographs and its own site-visit observations, and the Appellant's replying affidavit presented no contradictory evidence on the status of the works before and after the order. The appellate court therefore had nothing to review to reach a contrary finding.
Whether there was evidence to justify lifting the corporate veil
The Tribunal was entitled to lift the veil and hold the director named in the application liable, since he did not contest that he was the director to bear the burden
The court accepted that separate corporate personality can only be departed from where statute or law provides, as when a company is used for wrongdoing. The present director was specifically mentioned in the contempt application, and his replying affidavit did not suggest any other director should bear the liability, so the lifting of the veil against him could not be faulted.
Legal principles established
#- Court orders must be obeyed regardless of a party's disagreement with the issuing tribunal's jurisdiction; disobedience renders the action a nullity
- The law requires only a reasonable opportunity to be heard; a party given that opportunity who fails to utilise it cannot later claim denial of a fair hearing
- Section 126(1) of EMCA excludes the Evidence Act, including Section 106B, before the National Environment Tribunal
- The corporate veil may be lifted where statute or law so provides, e.g. where directors use a company to commit wrongdoing, and a director named in a contempt application who does not contest his identification may bear the liability
Court orders
#- 1.The appeal is dismissed for lack of merit
- 2.Costs to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- National Environment Tribunal
- Appeal case no. 12 of 2023
- Jurisdiction invoked
- First appeal from the National Environment Tribunal under the Environmental Management and Coordination Act (EMCA)
Relief refused
#That the appeal be allowed and the Tribunal's decision lifting the corporate veil, holding the director in contempt and fining Kshs. 2 million be set aside
The Tribunal acted within its jurisdiction, accorded the Appellant an opportunity to be heard, and there was sufficient evidence of contempt; there was nothing in the record to justify a contrary finding on the first appeal
Costs of the appeal to the Appellant
Costs were awarded to the 1st Respondent instead
Costs
Costs of the appeal awarded to the 1st Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot, the appeal is dismissed for lack of merit with costs to the 1st Respondent.
The Appellant was bound in law to obey the orders issued by the Tribunal despite disagreeing in its jurisdiction to issue the same.
The law is that parties must be given a reasonable opportunity of being heard and once that opportunity is given and is not utilised, then the only point on which the party not utilising the opportunity can be heard is why he did not utilise it.
The Tribunal shall not be bound by the rules of evidence as set out in Evidence Act (Cap. 80)
I cannot fault the Tribunal for lifting the veil to punish the specific director on behalf of the Appellant for being in contempt of the orders of 14th December, 2023.
Issues in the judgment
#Replying affidavit date inconsistently stated as 25th January 2025 and 25th January 2024 in different paragraphs
The 1st Respondent's submissions refer to the Tribunal's order of 14th January, 2024 directing a site visit whereas the ruling order is dated 14th December, 2023
The role designations of the parties before the Tribunal are unclear - the Appellant is referred to as the 2nd Respondent in the Tribunal proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kakuzi PLC v Kituamba Kaloleni IDPs & 2 others (Environment and Land Appeal E064 of 2024) [2026] KEELC 5165 (KLR)[2026] KEELC 5165 (KLR)30 Jul 2026applied
Cite this brief
#Cite this brief
Caselaw, "Kopoa Developers Limited v Endesk Properties Limited & another (Environment and Planning Appeal E010 of 2024) [2025] KEELC 4398 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4398/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.