[2023] KEELC 21494 (KLR)

London Distillers (K) Limited v National Environment Management Authority & another (Environment and Land Appeal E007 of 2020) [2023] KEELC 21494 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEELC 21494 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment and Land Appeal E007 of 2020

A Nyukuri, J

November 14, 2023

Between

London Distillers (K) Limited

Appellant

and

National Environment Management Authority

1st Respondent

Erdermann Property Limited

2nd Respondent

(Being an appeal against the Judgment/Order of the Honourable National Environment Tribunal at Nairobi (Honorable Mohammed S. Balala, Chairman; Honourable Christine Kipsang, Vice-Chairperson; Honourable Bhati Mwamuye; Honourable Waithaka Ngaruiya; and, Honourable Dr. Kariuki Muigua) delivered on 30th September, 2020 in National Environment Tribunal Appeal No. 21 of 2019)

Ruling

Introduction 1. Before court is a Notice of Motion dated 12th October 2023 filed by the 2nd Respondent /Applicant seeking the following orders;a.Spentb.That the Honourable court be and is hereby pleased to grant leave to the firm of CM Advocates, LLP to come on record for Erdermann Property Limited, sued and named as the 2nd Respondent in the instant appeal, in the stead of the firm of prof Tom Ojienda & Associates Advocates.c.Spent.d.That the honourable court be and is hereby pleased to review part of its judgment dated and delivered on the 24th July 2023; in respect of its finding on the enjoinder of the applicant as a project proponent of a residential Development to undertake an ambient air quality study before the grant of an environmental impact assessment licence for the projects in the subject mixed-use area; and hold that the enjoinder is in law vested on the owner and operator of a controlled facility.e.That each party bear its costs of this application.

2. The application is supported by the affidavit sworn by John Rajwayi, the Applicant’s Planning Manager. The Applicant stated that they were desirous of changing their legal representation and therefore need the leave of the court to do so. The Applicant’s case is that they are displeased with the part of this court’s judgment as stated in paragraphs 55 to 72 thereof, and they seek for review of the same.

3. The reasons given by the prayer for review are; that the Appellant/Respondent who operate a distillery are a medium risk project and that, that use is incompatible with a residential development; and that the Appellant has admittedly erected various staff residential quarters within its distillery, therefore its emissions must be safe for its staff and neighbouring residential developments including Everest Park and Mavuno Hillcity.

4. They also averred that both the Applicant and Respondent have elsewhere filed expert reports and accompanying scientific analysis supposing the fact that the Appellant’s emissions are compliant and not a threat to its neighbours; and that if the applicant complied with the judgment herein that would prejudice three other cases pending before the National Environment Tribunal being NET Appeal Case No. E002 of 2020, No. 27 of 2020 and No. E017 of 2021; where the question to be addressed is whether the appellant herein is compliant with the permitted emissions and effluent discharge standards under the Environment and Management Coordination Act (EMCA). The Applicant also stated that although the question of whether the Appellants emissions were within permitted levels was not addressed by the parties herein, this court in error and as per paragraphs 70, 71 and 72 of the judgment, proceeded to determine that question in the affirmative, and made a finding on the unsubstantiated presumption that the Appellant was operating within permitted levels of emissions, hence determining an issue without according the parties an opportunity to be heard.

5. The Applicant asserted that at paragraph 58 of the judgment herein, the court found that the state is obligated to prevent environmental harm. They therefore contended that on the basis of that finding the polluter pays principle enjoins this court to find that the actions of London Distillers Kenya Limited are the ones likely to degrade or adversely impact the environment hence unlawful; that Regulations 11 and 14 of the EMCA (Air Quality) Regulations, 2014, prohibits emissions in excess of prohibited limits in controlled areas under the sixth schedule and that therefore it is unavailable in law for the Appellant to transfer its obligation on the applicant as this will be against sustainable development and amount to allowing a polluter to exceed the legal emissions limits in its undertaking to make it intolerant to its neighbours.

6. They stated that the existing evidence controverts the presumption made by the court that the Appellant had complied with the permitted emission levels. That the Ambient Air quality Measurement Report generated by SGS dated 29th May 2020, showing that the Appellant is in violation of the Ambient Air Quality Tolerant Limits; that the improved Notice dated 19th May 2020 by NEMA’s Environmental inspector made non-compliance observations of complaints from neighbours and a pungent smell from the appellant and that in a control order dated 9th June 2020 NEMA sanctioned the Appellant for failure to comply with the lawful ambient air quality tolerant limits. They lamented that if parties had been given notice that the court will make a finding on whether the Appellant is compliant with permitted emission levels, they would have presented evidence on that question.

7. The Applicant states that in view of Section 6 of the Civil Procedure Act, this court was barred from considering an issue already pending before other courts of competent jurisdiction, being NET Appeal cases No. E002 of 2020, No. 27 of 2020 and No. E017 of 2021; that on 8th February 2018, NEMA wrote to the Appellant stating that the fact that they preceded the upcoming residential estates is not a defence against charges of pollution; that in a mixed use area, Regulation 4 (4) of EMCA (Air Quality) Regulations are applicable; that the court was wrong to state that a lacuna exists as that provision applies to pollutant sources; and that the judgment fetters NEMA’s application of its mandate; and that the import of the judgment was to shift away the legal duty to ensure compliance from the source pollutant.

8. No response to the application was filed.

9. On the date of the hearing of the application, Ms Misiati, counsel from the firm of Professor Tom Ojienda & Associates, which firm previously represented the Applicant herein appeared and informed court that they had no objection on the prayer seeking leave for the firm of CM Advocates LLP to come on record for Erdermann Property Limited, sued and named as the 2nd Respondent in the instant appeal, in the stead of the firm of Professor Tom Ojienda & Associates Advocates. Therefore, the court granted leave to the firm of CM Advocates LLP, to come on record for the Applicant/2nd Respondent as prayed.

10. The application was canvassed by oral submissions which were made on 23rd October 2023 by Mr. Lusi, counsel for the Applicant/2nd Respondent and Mr. Tiego, counsel for the Respondent/Appellant.

Applicant’s Submissions 11. Mr. Lusi, counsel appearing for the Applicant submitted that the application was brought under Order 45 of the Civil Procedure Rules. Counsel submitted that there was an error apparent on the face of the record. He argued that the Appellant who are an industrial undertaking run a distillery business and under Legal Notice No. 31 of 2019, that business is classified as a medium risk undertaking which can coexist with residential undertakings. Further, he contended that the Appellant has a residential staff quarters and therefore this is an affirmation that a distillery is not incongruent with the Applicant’s business. Counsel also submitted that in Appeal No. 27 of 2020, the Appellant and the 1st Respondent have confirmed that its emissions are within their thresholds and not a threat to residential development and therefore the two can coexist.

12. It was further submitted for the Applicant that at paragraph 55 of the Judgment herein, the court stated that the crux of the dispute is whether when the Appellant is operating within limits prescribed by NEMA, such lawful emission would be harmful to the neighbours. Counsel argued that the import of the court’s determination is to transfer the obligation of requiring compliance with NEMA standards from the Appellant to the Applicant/2nd Respondent. Reliance was placed on Regulation 4(4) of EMCA (Air Quality) Regulations 2014 and parts 7, 8, and 10 of EMCA. Counsel contended that at paragraphs 70, 71 and 72 of the judgment, the court found that the Appellant was operating within NEMA limits on emissions when parties did not address the court on that issue and there are live proceedings pending on that issue, namely NET Appeal Cases No. 2 of 2020, NET No. 27 of 2020 and No. 17 of 2021; and that the evidence in the pending suits on that question was not presented in this matter hence there is an error apparent on that issue.

Respondent/Appellant’s submissions 13. Mr. Tiego, counsel appearing for the Appellant/Respondent, submitted that the express wording of Order 45 of the Civil Procedure Rules provide that only a decree or an order can be reviewed, and that therefore the application herein is misconceived. Counsel took issue with the applicant’s supporting affidavit and argued that Order 51 Rule 1 of the Civil Procedure Rules provides that an affidavit should be annexed to the application. He pointed out that the instant application refers to an affidavit by Zeyun Yang when the attached affidavit is sworn by a Mr. John Rajwayi.

14. Counsel argued that under Order 45 of the Civil Procedure Rules, the court can only grant review where there is an error apparent on the record, and discovery of new matter that was not in existence at the hearing. Counsel submitted that the Applicant has sought to rely on documents at pages 54 to 128 of their application which seek to introduce new evidence. He argued that those proceedings were in existence when the appeal herein was filed and heard and that the counsel herein was on record for Edermann property in all the three suits. Counsel’s argument being that it is not open for the applicant at this stage to introduce new issues.

15. It was further contended for the Respondent/Appellant that although an application for review must be expeditiously filed, the application herein was filed 58 days after the court’s decision and that the delay has not been explained. Counsel observed that the jurisdiction of this court was to review the entire evidence before NET. He argued that at page 164 of the record of appeal, it shows evidence before the Parliamentary committee from the applicant that fumes from the Appellant were causing nuisance and cancer and that they affected pregnant women, among other allegations. Counsel also pointed out that at pages 289 to 501, and more specifically at page 324 of the record, which shows the EIA Study Report, there was expectation that consultants were to carry out ambient air quality for the reason that for 3o years the Appellant had been operating a distillery in the area, but that the Applicant complained of fumes and still constructed in the same area. He submitted that it was upon the Applicant to ensure the area was safe, and that the court rightly applied the precautionary principle so that innocent purchasers know they were safe. Counsel was of the view that there was no error apparent on the face of the record as the Applicant was only trying to reopen the case, to bring new evidence so that the court can reach a different conclusion.

16. In a rejoinder, Mr. Lusi for the Applicant submitted that Order 45 of the Civil Procedure Rules allows a party aggrieved with a judgment to seek review. On the supporting affidavit, counsel argued that no provision of Order 19 of the civil Procedure Rules had been cited as having been violated and that reference to Mr. Zeyun was an inadvertent error but the dispositions remain uncontested. Counsel argued that the annexures to the application demonstrate that the applicant had no opportunity to consider the issues raised and that those issues are barred by the sub judice rule.

17. On filing the application after 58 days, counsel submitted that, that was the earliest opportunity that the applicant got and that although the application was served on 22nd September 2023, no reason was given for failure to respond. Counsel argued that the fact that the Appellant had been in the area for 30 years, they were still bound by the polluter pays principle and Regulation 11 of EMCA (Air Quality) Regulations 2014. Counsel argued that the Applicant is not engaged in any pollution and does not emit pollutants and therefore the obligation on emissions remains with the Appellant.

Analysis and determination. 18. The court has carefully considered the application, supporting affidavit, annexures and submissions made. The issues that arise for determination are;a.Whether the application herein is incompetent for seeking to review a judgment instead of a decree or order; and for referring to a supporting affidavit of Zeyun Yang when the affidavit attached to the application was sworn by John Rajwayi.b.Whether the Applicant has met conditions for review of this court’s judgment.

19. On whether this application is incompetent on the basis that Order 45 of the Civil Procedure Rules refers to review of a decree or order and not a judgment, I note that in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, being the legal provisions that provide for the power of the court to grant review, the words “decree” and “judgment” are used interchangeably as though they were one and the same thing. Those provisions are as follows;80. Any person who considers himself aggrieved-a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit.Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows:-45Rule 1 (1 ) Any person considering himself aggrieved-a.By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.By a decree or order from which no appeal is hereby allowed, and who from 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 decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgement to the court which passed the decree or made the order without unreasonable delay.

20. That being the case, the wording in section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules means that a party may apply to review a decree, an order or judgment, and those provisions, do not restrict reviews to decrees and orders alone, they also include judgments. In any event, a decree as defined under section 2 of the Civil Procedure Act is the formal expression of the court’s adjudication that conclusively determines the parties’ rights in respect to matters in controversy. The court’s adjudication in this case being the judgment. Essentially, a decree is a summarized form of or a distillation of a judgment which only contains the court’s pronouncement on the parties’ rights in the dispute, without other details like the reasons upon which the court arrived at its conclusions, background of the case or evidence. Hence, a decree flows from a judgment.

21. For those reasons, I find and hold that the Appellant/Respondent’s argument that Order 45 does not refer to review of a judgment as merely splitting hairs and is therefore rejected.

22. As regards the fact that the name of the deponent referred to in the application is different from the name of the deponent in the supporting affidavit, the Applicant argued that that was an inadvertent error. The Respondent’s challenge is that the application referred to an affidavit of Zeyun Yang, but that the attached affidavit was sworn by John Rajwayi. Having considered the affidavit in question, I note that no objection is raised on the contents thereof or on the competence of John Rajwayi to swear the affidavit, and no prejudice has been alleged to have been suffered by the Respondent due to that error. The challenge is only on the reference to the wrong name in the application. As the Applicant is a juristic person, any of its officers competent can swear their supporting affidavit and therefore I agree with the applicant that the fact that the application referred to Zeyun Yang but the affidavit attached is sworn by John Rajwayi, was an inadvertent error, which is excusable. The Respondent has not alleged any prejudice they have suffered due to that error. As Article 159 of the Constitution of Kenya 2010 enjoins this court to administer substantive justice, without undue regard to technicalities, I find and hold that the error in describing the name of the deponent of the supporting affidavit does not go to the core of the dispute herein and therefore the same is disregarded.

23. On the question of review, section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules as particularized above, provide for the power of the court to grant review against its decisions.

24. Essentially, the above provisions show that Section 80 gives the power of review while Order 45 sets out the rules. The latter restricts the grounds for review by limiting review 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, orc.For any other sufficient reason; andd.The requirement that an application for review has to be made without unreasonable delay.

25. The Applicant herein seeks review of this court’s judgment on the ground that there is an error apparent on record. Where a party seeks review to correct an apparent error or omission on the part of the court, the error or omission must stare one in the face, be glaring, and self-evident and it should not need a long process of reasoning or an elaborate scrutiny either of the facts or the legal position or convoluted argument for such an error to be established. The error should stand out. It ought to be obvious. Otherwise if it is to be found by a laborious and lengthy complicated examination of the matters raised, then that would not be a review but an appeal. In the case of Aribam Tuleshwar Sharma v Aribam Pishak Sharma 1 (1979) 4 SCC389: AIR 1979 SC 1047 the Supreme Court of India stated that an error apparent on the face of the record must be such an error, which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. Similarly, in the case of Attorney General & Others v Boniface Byanyima, HCMA No. 1789 of 2000, the court cited with approval the decision in Levi Outa v Uganda Transport Company, [1995] HCB 340 where it was held that the expression “mistake or error apparent on the face of record” refers to an evident error which does not require extraneous matter to show its incorrectness. It is an error so manifest and clear that no court would permit such an error to remain on the record. It may be an error of law, but law must be definite and capable of ascertainment.

26. Therefore, it will not be a sufficient ground for review that the court misconstrued a statute or other provision of law, or that it proceeded on an incorrect exposition of the law or arrived at an erroneous conclusion of law. (See Republic v Advocates Disciplinary Tribunal Ex parte Appollo Mboya [2019] e KLR).

27. In the case of Nyamogo & Nyamogo v Kogo [2001] EA 170 the court discussed what constitutes an error apparent on the face of the record, and stated as follows: -An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of undefinitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.

28. A decision viewed as erroneous must be distinguished from a decision characterized with an 'error apparent'. The power to review on the ground of an error apparent on the face of the record, should not be applied in circumstances where a decision thought to be erroneous is sought to be reheard and corrected so that there is a different finding on merit. In the case of Republic v Advocates Disciplinary Tribunal Ex parte Appollo Mboya (supra) the court was of the view that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. A review lies only for patent error where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it.

29. In short, from the jurisprudence made on this subject, no error can be said to be apparent on the face of the record if it is not self-evident and requires an examination or argument to establish it. In the instant case, the Applicant’s grievances are two-pronged. To begin with, they content that in the judgment herein, the court made a finding that the Appellant was in compliance with NEMA standards on permitted emission levels, yet that was not an issue in dispute in the appeal and that parties were not afforded an opportunity to avail evidence on that question, which evidence the applicant has now availed before this court. The Applicant states that, that evidence, which include scientific reports has been tabled before NET in regard to the three pending live cases, namely, NET Appeal Case No. 2 of 2020, No. 27 of 2020 and No. 17 of 2021, and that therefore this court breached the principle of sub judice provided for under section 6 of the Civil Procedure Act. In support of these assertions, the Applicant stated that the finding on the issue of the Appellant’s compliance with NEMA standards is contained in paragraphs 70, 71 and 72 of the judgment. The other grievance of the Applicant is that there is an error in the judgment as the import thereof is to shift the legal duty for compliance with NEMA standards in regards to ambient air quality from the Respondent/Appellant to the Applicant/2nd Respondent, when the latter are not the source pollutants.

30. On the first grievance above, the court has considered paragraphs 70, 71 and 72 of the judgment which the Applicant alleged to be the basis of their complaint; and the court has gone an extra mile and considered the entire judgment. It is clear from the entire judgment that there is nothing therein to suggest that the court framed as one of its issues for determination as being whether or not the Appellant was compliant with NEMA standards on permitted emission levels. That issue never arose, no findings were made on the same, and there is nothing in the judgment to show that the court proceeded to determine any other issue, on the presumption that the appellant was in compliance with NEMA standards. No specific sentence or wording in the judgment has been quoted by the applicant where this court made a finding that the Appellant was in compliance with NEMA standards on permitted emissions. The judgment shows that the court was clear on the dispute, and the issues that arose as captured and framed in paragraph 17 thereof. The core issue being the validity of the EIA Licence issued to the Applicant when it had not been ascertained whether the project area was safe for human health. The fact that the court ordered the applicant to satisfy the 1st Respondent herein (NEMA) that maximum permissible emissions from the Appellant are not a threat to the health of the residents of the proposed project, was not a finding that the Appellants were in compliance with permitted levels of emissions and neither were they a presumption that the Appellant was in compliance. The permitted emissions, as contained in relevant NEMA emission licences are only the reference point in ascertaining and measuring safety to human health as ordered by this court. In any event NEMA is under duty to enforce compliance on permitted emissions at any given time, and the Appellant is expected under the law to comply.

31. In the premises, I find and hold that the allegation and argument by the Applicant that the court made a determination on whether the Appellant was in compliance with NEMA standards on permitted emission levels, to be without basis, incorrect and outrightly misleading and the same is rejected.

32. On the second limb of the Applicant’s grievance that the import of the judgment herein was to shift the legal duty of compliance to the Applicant who was a non-polluter, I must point out that what was being interrogated by this court was the legality of the EIA licence, sought and issued to the Applicant who intends to construct residential premises in an area preceded by industrial development. It was the Applicant’s proposed project and no other project or entity, was the subject of scrutiny by NEMA and NET. In that context, this court was clear and it made an unequivocal finding at paragraph 71 of the judgment that NET made erroneous conclusions in dismissing the appellant’s appeal on the basis that the Appellant lacked scientific evidence to show that permitted levels of its emissions were a risk to human health. This court further found that NET was wrong in shifting the burden of proof to the appellant on the question as to whether the Appellant’s permitted emissions would pose a danger to human health, when the Appellant was not the project proponent. The court also stated that the burden of confirming that the project area was safe for human health lay on the Applicant herein, who are the project proponent. It further found that NEMA and NET failed to apply the precautionary principle in the interrogation of the Applicant’s Environmental Impact Assessment Study Report and in the issuance of the EIA licence. The Judgment did not in any way have the import of shifting any legal duty in regard to compliance from one party to another. It was only a pronouncement on whether the issuance of the EIA licence passed the legal threshold, in view of the dispute on the risk to human health posed by the intended coexistence of the Applicant and the Appellant. On matters compliance, every Kenyan including the Applicant and the Appellant herein, is duty bound to comply with the law applicable to each person including laws concerning pollution, and therefore the argument that the judgment herein has the import of shifting the legal burden of compliance in regard to pollution, is not substantiated and is devoid of any justification or basis.

33. The arguments regarding polluter pays principle as raised by the Applicant herein were raised at the hearing of the appeal herein as are captured at paragraphs 24 and 25 of the judgment herein where the Applicant argued that being a non-polluter, they did not need an ambient air quality study and that the project area had other residential developments including Hillcrest estate, sunset estate, Everest Park estate among others. However, upon considering those arguments, this court nevertheless applied the precautionary principle, and held that the burden of proof on the safety of human health of the intended residents of the proposed project units remained with the project proponent who are the Applicant herein. In short, the court held that NEMA failed to properly interrogate the Applicant’s EIA study Report and that both NEMA and NET failed to apply the precautionary principle.

34. In the instant application, I understand the Applicant to be saying that the error apparent on record is that the court ought to have applied the polluter pays principle and should find that the Appellant had the legal duty to prevent environmental damage being the source pollutant. In my view, since this court already considered the Applicant’s arguments about the polluter pays principle, and found that NEMA ought to have applied the precautionary principle in requiring the entity seeking the EIA Licence, to provide evidence that the Appellant’s permitted levels of emissions would not expose the residents of the proposed project to health risks; therefore, the argument that the court failed to apply the polluter pays principle is an argument that cannot be entertained within this court’s jurisdiction for review, as the same is a challenge on the merits of the case since the Applicant’s grievance is on the court’s exposition of the law. Therefore, this court holds that the Applicant has not placed any material before it, to demonstrate that the finding of this court in applying the precautionary principle is not a possible view, and that that finding stares one in the face and amounts to an error apparent on the face of the record.

35. Although an application for review ought to be filed expeditiously, the Applicant came to court 58 days after delivery of the judgment of this court. They have presented laborious, long-winding arguments alleging that there is an error apparent on the record without giving any plausible explanation for the 58 days’ delay. If indeed such error existed, I do not think it would have taken the Applicants 58 days to see such error considering that the Applicant has all through been ably represented by legal counsel. It is the view of this court that the application herein is merely an attempt by the Applicant to have a second bite at the cherry, by raising long drawn and convoluted arguments to get a different decision from what was earlier made by the court. Having considered the matters raised, this court finds and holds that there is no manifest error apparent on the record to warrant orders of review of the judgment herein.

36. In the premises, I find and hold that there is no merit in the application dated 12th October 2023 and the same is hereby dismissed with no order as to costs.

37. It is so ordered.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 14TH DAY OF NOVEMBER, 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the presence of:Mr. Lusi for 2nd Respondent/ApplicantMr. Tiego for Appellant/RespondentJosephine - Court Assistant