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ELCPartially AllowedELC Misc. App. No. 3 and 4 of 2016 (consolidated files; the exact lead file number is not expressly stated in the judgment)· [2016] KEELC 101 (KLR)

Republic Senior Resident Magistrate’s Court Ndhiwa & another Exparte Sajalendu Maiti [2016] KEELC 101 (KLR)

Environment and Land Court
20 December 2016
2,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court quashed NEMA's prosecution of a factory owner, ruling the regulator pursued charges even though required environmental works had been completed.

What this practically means

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Executive summary

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The Exparte Applicant, Sajalendu Maiti, applied by notice of motion dated 16th November 2016 under Order 45 Rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act for review and setting aside of this court's judgment of 16th November 2016, together with a stay of execution. He explained that confusion arising from two simultaneous files (ELC Misc. App. Nos. 3 and 4 of 2016) delayed filing of written submissions, and that documents crucial to demonstrating compliance with a NEMA improvement notice of 29th April 2015 had been inadvertently omitted from the substantive application and were only discovered after judgment. The Respondents did not file replying papers and the application proceeded unopposed. The court found the application properly before it under Order 45 Rule 1, filed timeously on the date of judgment, and held that the discovery of the omitted documents and unconsidered submissions amounted to a sufficient reason for review. Re-examining the merits, the court found that the 30th June 2015 inspection report showed only two outstanding works (installation of an oil trap and application for a composing licence), and that the EIA licence issued on 30th October 2015 indicated compliance. In the absence of fresh investigations and notices, the contention that the prosecution was based on political and public pressure appeared reasonable. The court reviewed its judgment, issued an order of certiorari quashing all proceedings in Ndhiwa S.R.M. Criminal Case No. 309 of 2015, and directed that each party bear their own costs. It noted that compensation claims by allegedly injured individuals remain open in civil claims.

Key legal issues

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01

Whether the application for review was properly before the court and brought without unreasonable delay

Holding

The application was properly before the court, which had delivered the judgment sought to be reviewed, and it was filed timeously on the date of the judgment itself

Reasoning

Order 45 Rule 1 requires a review application to be made to the court which passed the decree or made the order. The judgment of 16th November 2016 was made and delivered by this court. The application was filed on the same day as delivery, so there was no unreasonable delay.

p. 3
02

Whether grounds for review existed under Order 45 Rule 1 (sufficient reason)

Holding

Discovery that documents and written submissions were not before the court at judgment amounted to a sufficient reason for review

Reasoning

The two running files (ELC Misc. App. Nos. 3 and 4 of 2016) caused confusion and the submissions filed on 8th November 2016 were never placed on the file. Documents annexed to the further affidavit were not before the court at judgment. Their late discovery entitled the court to review its judgment so it could evaluate those documents.

p. 4
03

Whether the criminal prosecution should be quashed on the merits upon review

Holding

On the merits, certiorari issued quashing the proceedings in Ndhiwa S.R.M. Criminal Case No. 309 of 2015, as the remaining works required by the inspection report had been complied with and the prosecution appeared based on extraneous considerations

Reasoning

The 30th June 2015 inspection report identified only two outstanding requirements (oil trap and composing licence). The EIA licence issued on 30th October 2015 indicated compliance. In the absence of fresh investigations and notices, the contention that the prosecution was discriminatory and based on political and public pressure appeared reasonable. The Respondents did not defend the application.

p. 5

Legal principles established

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  • An application for review must be filed before the court that made the order sought to be reviewed
  • Discovery of documents inadvertently omitted and not considered when a judgment was rendered can amount to a sufficient reason for review under Order 45 Rule 1
  • An inspection report issued shortly after a compliance notice, identifying only remaining outstanding works, evidences what the regulator required for compliance; prosecution without fresh investigations and notices may be based on extraneous considerations

Court orders

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  1. 1.The court's judgment dated 16th November 2016 is reviewed in accordance with Order 45 of the Civil Procedure Rules
  2. 2.An order of certiorari issued calling into this court and quashing all the proceedings in Ndhiwa S.R.M. Criminal Case Number 309 of 2015 Republic through NEMA – v – Sajalendu Maiti
  3. 3.Each party bears their own costs
Jurisdiction invoked
Order 45 Rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act (Chapter 21, Laws of Kenya); the court reviewed its own judgment delivered on 16th November 2016

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic Senior Resident Magistrate’s Court Ndhiwa & another Exparte Sajalendu Maiti [2016] KEELC 101 (KLR)", Case Analysis (2016). ELC Misc. App. No. 3 and 4 of 2016 (consolidated files; the exact lead file number is not expressly stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/101/eng@2016-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.