[2024] KENET 501 (KLR)

Lakeview Residents Association & 4 others v Director-General, National Environment Management Authority & another (Tribunal Appeal 163 of 2015) [2024] KENET 501 (KLR) (23 February 2024) (Ruling)

Neutral citation: [2024] KENET 501 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Tribunal Appeal 163 of 2015

Emmanuel Mumia, Chair, Winnie Tsuma, Vice Chair, Duncan Kuria & Ronald Allamano, Members

February 23, 2024

Between

Lakeview Residents Association

1st Appellant

Saunders Close Residents Association

2nd Appellant

Kitisuru Residents Association

3rd Appellant

Farasi Lane Residents Association

4th Appellant

Mitini Limited

5th Appellant

and

The Director-General, National Environment Management Authority

1st Respondent

Shiloah Investments Limited

2nd Respondent

Ruling

1. Before the Honourable Tribunal is the 2nd Respondent/Applicant’s Notice of Motion Application dated 29th January 2024 principally seeking that Tribunal reviews its Ruling delivered on 1st December 2023 with respect to the Appellant’s Application dated 4th April 2023 and the 2nd Respondent/Applicant’s application dated 12th April 2023 by setting aside and vacating order (b) thereof.

2. The Application is supported by the grounds on the face thereof and further by the Supporting Affidavit of Mitesh Shah sworn on 29th January 2024.

3. None of the Appellants filed a response to the application and therefore the same is unopposed.

4. At the onset, we would like to state that notwithstanding there are no express provisions conferring the Tribunal with the power to review its decisions, the Tribunal has on numeral occasions held that it has the jurisdiction to review its orders. One such decision is Wemali Benson & 3 others v National Environment Management Authority (NEMA) & another [2020] eKLR, where the Tribunal held as follows:‘The Tribunal in its course of dispensing justice makes numerous orders, some of which are reviewed in the course of the hearing of matters. Whereas the NET Rules do not have a Rule similar to Order 45 of the Civil Procedure Rules, section 129 (3c) provides some leeway to make decisions that may guide the dispensation of justice. It would be a legal absurdity for the Tribunal to find that it cannot review its decisions including errors that may be apparent on the face of the record or any other orders in the course of taking proceedings and instead ask the parties to proceed on appeal.The purpose of existence of the Tribunal is to save on time, resources, formalities and to make justice more accessible to all and sundry. A finding that the Tribunal cannot review its own decision would be an erosion of the purpose of existence of the Tribunal.’

5. Having said that, it is now well settled law that the scope of review is limited to the following grounds- (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.

6. In that regard, the Court in Republic v Public Procurement Administrative Review Board & 2 Others (2018) eKLR, held as follows:‘The power to review a judgment or an order can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” means a reason sufficiently analogous to those specified in the rule. Where the application is based on sufficient reason it is for the Court to exercise its discretion.’

7. Turning to the facts at hand, we note that the case advanced by the Applicant is that in the ruling dated 1st December 2023, the Tribunal dismissed in its entirety the Appellant’s application dated 3rd April 2023 and allowed the Applicant’s application dated 12th April 2023 in terms of prayer (c) and (d).

8. However, the Applicant argues that order (b) of the ruling which states that strict adherence to the terms of the consent dated 2nd November 2020 shall be a condition precedent to the resumption of construction activities on the suit property is mistake/error apparent on the face of the record as the said order is not part of the consent and was not sought by the Applicant in its application of 12th April 2023.

9. In in the case of National Bank Of Kenya Limited v Ndungu Njau [1997] eKLR, the Court of Appeal had this to say as to what amounts to a mistake or an error apparent on the face of the record;‘A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.’

10. We have reviewed the impugned ruling and note that the Tribunal upheld the consent dated 20th November 2022 and consequently dismissed the Appellants application which was seeking orders whose effect was to vary/set aside the terms of the said consent. This is captured in order (a) of the ruling.

11. Therefore, having made a finding upholding the terms of the consent, it would not make any sense for the Tribunal to proceed and issue order(b) which is at variance with the terms of the consent. The same renders otiose and negates prayer (a) of the ruling and the terms of consent.

12. Further, we note that the said order (b) was not sought by the Applicant. The Appellants’ application was dismissed in its entirety and therefore, the orders they were seeking are immaterial at this stage. It is trite law that parties are bound by their pleadings. Further, the court (Tribunal) itself is as bound by the pleadings of the parties as they are themselves. As such, the Tribunal cannot issue order(s) not sought by the parties. We associate ourselves with the holding of Malawi Supreme Court of Appeal in Malawi Railways Ltd Vs. Nyasulu [1998] MWSC 3, in which the learned judges quoted with approval from an article by Sir Jack Jacob entitled “The Present Importance of Pleadings.” where the author stated as follows:“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings…for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….’’ (emphasis ours)

13. From the foregoing, it is our finding that order(b) of the ruling dated 1st December 2023 is a mistake/error apparent on the face of the record and the same should be set aside.

14. In any event, we have reviewed the video recording of the proceedings of the delivery of the ruling, and we agree with the Applicant that the ruling as delivered orally by the Tribunal on 1st December 2023 did not contain order (b) as framed. The Tribunal did not issue such an order. It appears that the said order mysteriously found its way in the ruling which was dispatched to parties.

15. In the end, we find that the Applicant’s Application dated 29th January 2024 is merited and we hereby allow the same by setting aside order (b) of the ruling dated and delivered on 1st December 2023 with respect to the Appellant’s Application dated 4th April 2023 and the 2nd Respondent/Applicant’s application dated 12th April 2023. Each party is to bear its own costs.

DATED AND DELIVERED AT NAIROBI, THIS 23RD DAY OF FEBRUARY 2024EMMANUEL MUMIA - CHAIRMANWINNIE TSUMA - VICE-CHAIRDUNCAN KURIA - MEMBERRONALD ALLAMANO - MEMBER