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ELCDismissedNot stated in the judgment as provided

Kopoa Developers Limited v Endesk Properties Limited & another (Environment and Planning Appeal E010 of 2024) [2025] KEELC 4398 (KLR)

Environment and Land Court
5 June 2025
3,593 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Appellant appealed against a ruling of the National Environment Tribunal delivered on 8 April 2024 in NET Appeal No. 12 of 2023, in which the Tribunal lifted the Appellant's corporate veil, found its director Jiangang Liu in contempt of orders issued on 14 December 2023 (which had stopped further construction pending judgment and directed a site visit), and fined him Kshs. 2 million, with a notice to show cause in default. The appeal was canvassed by written submissions. The Appellant argued it was denied a fair hearing, that the contempt finding lacked sufficient and properly authenticated evidence, that there was no basis to lift the corporate veil, and that the Tribunal lacked jurisdiction over zoning and development issues. The 1st Respondent maintained due process was followed, the Appellant was given an opportunity to respond but failed to file submissions in time, and the photographs were legitimate electronic evidence. Omollo J framed three issues: the Tribunal's jurisdiction, violation of the right to be heard, and sufficiency of the evidence of contempt. The court held that the site visit and preservation orders were within the Tribunal's mandate under section 126(2) of EMCA and Rule 22(6) of the NET Procedure Rules 2003, and that court orders must be obeyed regardless of disagreement with the issuing tribunal's jurisdiction. The filing of a replying affidavit by the director, considered by the Tribunal, satisfied the right to be heard. Section 126(1) of EMCA excludes the Evidence Act, so the photographs were admissible, and the Appellant produced no contradicting evidence. The lifting of the corporate veil against the named director could not be faulted. The appeal was dismissed with costs to the 1st Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Jurisdiction of the Tribunal
  2. 2.Whether the Appellant's right to be heard was violated
  3. 3.Whether there was sufficient evidence proving the contempt

Key legal issues

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01

Whether the Tribunal had jurisdiction to order a site visit and stoppage of construction

Holding

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

Reasoning

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.

p. 5
02

Whether the Appellant's right to be heard was violated

Holding

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

Reasoning

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.

p. 6
03

Whether there was sufficient evidence of contempt

Holding

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

Reasoning

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.

04

Whether there was evidence to justify lifting the corporate veil

Holding

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

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed for lack of merit
  2. 2.Costs to the 1st Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 7

Costs of the appeal to the Appellant

Costs were awarded to the 1st Respondent instead

p. 7

Costs

Costs of the appeal awarded to the 1st Respondent.

Quotable passages

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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.
p. 7Final orders/disposition
The Appellant was bound in law to obey the orders issued by the Tribunal despite disagreeing in its jurisdiction to issue the same.
p. 5Obedience to court orders
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.
p. 6Right to be heard
The Tribunal shall not be bound by the rules of evidence as set out in Evidence Act (Cap. 80)
p. 6Tribunal evidence rules
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.
p. 7Lifting the corporate veil

Issues in the judgment

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minor

Replying affidavit date inconsistently stated as 25th January 2025 and 25th January 2024 in different paragraphs

minor

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

minor

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.