[2019] KEELC 2374 (KLR)
The court found that the applicant had demonstrated sufficient cause for review of the judgment, particularly due to the failure of the advocate to present evidence of public participation before the initial judgment. The court held that it would be unjust to punish the applicant for the advocate's mistake,...
Source-derived case information.
- Citation
- [2019] KEELC 2374 (KLR)
- Parties
- Applicant: Carolyne Kerubo Omwoyo; Applicant: Yusufu Mahmoud Athman; Respondent: Abao Investments Ltd; Respondent: Uasin Gishu County Government; Respondent: National Environment and Management Authority
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Petition 16 of 2014
- Procedural Posture
- Constitutional Petition / Ruling on Application for Review and Variation of Closure Order
- Outcome
- application for review allowed; closure order lifted pending audit; compliance report to be filed within 90 days; liberty to apply; no order as to costs
- Judges
- A Ombwayo
- Legal Topics
- Environmental Audit, Public Participation, Unfair Administrative Action, Judicial Review, Closure Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Carolyne Kerubo Omwoyo
Applicant
Yusufu Mahmoud Athman
Applicant
Abao Investments Ltd
Respondent
Uasin Gishu County Government
Respondent
National Environment and Management Authority
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Review and Variation of Closure Order
Legal Issues
- 1 Whether the court should review and vary its previous order of closure of the 1st respondent's plant pending an environmental audit.
- 2 Whether sufficient cause has been shown for review of the judgment limiting the operation period of the plant.
- 3 Whether the applicant should be penalized for the advocate's failure to present evidence of public participation before judgment.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for review of the judgment, particularly due to the failure of the advocate to present evidence of public participation before the initial judgment. The court held that it would be unjust to punish the applicant for the advocate's mistake, especially where evidence of compliance with public participation requirements was subsequently produced. Accordingly, the court reviewed its earlier order, lifted the closure of the 1st respondent's plant, and directed the National Environment Management Authority to conduct an audit and file a compliance report within 90 days. The closure order would remain lifted pending the filing...
Court Disposition
application for review allowed; closure order lifted pending audit; compliance report to be filed within 90 days; liberty to apply; no order as to costs
Orders
- The National Environment Management Authority to audit the applicant and file a compliance report within 90 days.
- The order of closure of the 1st respondent's plant is lifted pending the filing of the compliance report.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT ELDORET
PETITION NO. 16 OF 2014
IN THE MATTER OF THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF UNFAIR ADMINISTRATIVE ACTION CONTRARY TO ARTICLES 27, 40, 47, 46, 50, 40 AND 70 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF THE ADMINISTRATIVE ACTION ACT, 2015
AND
IN THE MATTER OF THE ILLEGAL ESTABLISHMENT OF TREATMENT PLANT
AND
IN THE MATTER OF THE ENVIRONMENT MANAGEMENT AND CO-ORDINATION ACT, 1999
AND
IN THE MATTER OF PUBLIC PARTICIPATION AND SOCIAL IMPACT ASSESSMENT IN LINE WITH ARTICLE 10 OF THE NEW CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF PROVISION OF A SECURE ENVIRONMENT IN LINE WITH THE NEW CONSTITUTION OF KENYA, 2010
BETWEEN
CAROLYNE KERUBO OMWOYO...................1ST PETITIONER/RESPONDENT
YUSUFU MAHMOUD ATHMAN......................2ND PETITIONER/RESPONDENT
VERSUS
ABAO INVESTMENTS LTD...............................1ST RESPONDENT/APPLICANT
UASIN GISHU COUNTY GOVERNMENT......2ND RESPONDENT/APPLICANT
NATIONAL ENVIRONMENT AND MANAGEMENT
AUTHORITY...............................................INTERESTED PARTY/RESPONDENT
RULING
The 1st respondent has come to court vide application dated 1. 7.2019 praying for orders that pending the release of the audit report by National Environment and Management Authority on the 1st respondent’s plant, this Court be pleased to vary and/or enlarge time to allow the 1st respondent’s operations to continue and that time within which the National Environment and Management Authority is to do an audit of the 1st respondent’s plant in line with the decree made on 30th May, 2019 be determined and/or stated.
He further prays that the decision of this Court made on 30. 5.2019 limiting time within which and/or giving a 30 days period of closure of the 1st respondent’s plant be varied, reviewed and/or lifted.
The application is based on grounds that there was an order of liberty to apply. Moreover, that there is no stay of execution and that the matter can be resolved amicably.
I have considered the application, looked at the exhibits annexed and do find that there is evidence of people’s participation but the same was not availed to court before judgment. I have seen the Notice of Change of User annexed in the supporting affidavit. This court should not punish the 1st respondent/applicant for mistake made by the Advocate which are abundant.
I do find that the applicant has shown sufficient cause for review of the judgment of the court.
Ultimately, I do review my judgment and do order that the National Environment Management Authority to audit the applicant and file a compliance report within 90 days. Meanwhile, the order of closure is lifted pending the filing of compliance report by the National Environment Management Authority. There be liberty to apply. No orders as to costs.
Dated and delivered at Eldoret this 12th day of July, 2019.
A. OMBWAYO
JUDGE