Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNET Appeal No. 196 of 2016 - Notice of Motion dated 24th September 2018

Save Lamu & 5 others v National Environmental Management Authority (Nema) & another [2019] KEELC 4739 (KLR)

Environment and Land Court
24 January 2019
3,185 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to pause tribunal proceedings over the Lamu coal plant appeal, ruling delays can't be used to stall concluded cases.

What this practically means

#

Executive summary

#
By a Notice of Motion dated 24th September 2018, six Appellants before the Environment and Land Court at Malindi sought a stay of proceedings in National Environment Tribunal Appeal No. 196 of 2016, arising from the Tribunal's refusal on 6th September 2018 to adjourn the hearing to allow five expert witnesses on marine, health and climate matters to testify regarding the proposed Lamu Coal Fired Power Project. The 1st Respondent (NEMA) and the 2nd Respondent (Amu Power Company Ltd) opposed, contending the application was brought in bad faith, delayed, and aimed at frustrating the coal plant project through a multiplicity of suits. The court applied the Global Tours and Travels threshold: stay of proceedings is a judicial discretion exercised in the interest of justice, weighing expeditious disposal, arguability of the appeal, judicial time and timeliness. The court noted the Tribunal's directions of 28th March 2018 requiring all witnesses to be availed on allocated dates, that 12 of the Appellants' 17 witnesses had already testified, and that the appeal had been pending since 2016. Relying on Mbogo v Shah on non-interference with discretionary adjournment decisions, on Omagwa Onyancha on nugatory-ness, and on Christopher Ndolo Mutuku balancing the right of appeal against expeditious determination, the court held that staying proceedings in a matter already concluded by the Tribunal, with the right of appeal unfettered, would contravene Article 159 of the Constitution. Remedies under Section 130(4) of EMCA remained open. The application was dismissed with costs to the Respondents.

Questions the Court framed

#

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

  1. 1.Whether a stay of proceedings before the National Environment Tribunal pending the hearing and determination of the Appeal before the Environment and Land Court should be granted
  2. 2.Whether the Appellants' right of appeal would be rendered nugatory if the stay is not granted

Key legal issues

#
01

Threshold for stay of proceedings pending appeal

Holding

Stay of proceedings is discretionary; the court must weigh the need for expeditious disposal, prima facie arguability of the appeal, scarcity of judicial time and timeliness of the application

Reasoning

The court adopted the Global Tours and Travels test as the governing threshold. Applying it, the court found the NET appeal had been pending since 2016, the Appellants had already testified 12 of 17 witnesses and cross-examined the respondents' witnesses, and the Tribunal had acted to expedite the matter. Granting a stay where the Tribunal matter had been concluded would defeat Article 159's command of expeditious disposal.

p. 3
02

Effect of the Tribunal's dismissal of the adjournment application

Holding

The Appellants' remedy for the declined adjournment lies in the appeal itself, under Section 130(4)(a) and (b) of EMCA, not in staying the concluded Tribunal proceedings

Reasoning

The court held that the remedies under Section 130(4) of EMCA — confirming, setting aside or varying the decision, or remitting the proceedings with instructions for further evidence — remain available to the Appellants upon hearing the appeal. A stay would serve no purpose since the Tribunal matter had already concluded and the Appellants' right of appeal remains unfettered.

p. 4
03

Whether the appeal would be rendered nugatory without a stay

Holding

No - following Omagwa Onyancha, the Tribunal proceedings would come to an end and any success on appeal can be remedied by appropriate orders including costs

Reasoning

Relying on Omagwa Onyancha and Christopher Ndolo Mutuku, the court reasoned that since the hearing before the Tribunal had commenced it would come to an end and a judgment delivered; if the Appellants succeed in the appeal, appropriate orders under Section 130(4) of EMCA, including an order for costs, can remedy any prejudice. Stay of proceedings was therefore not necessary to preserve the appeal.

p. 4

Legal principles established

#
  • Whether to grant a stay of proceedings is a matter of judicial discretion to be exercised rationally in the interest of justice, weighing expeditious disposal, arguability of the appeal, judicial time and timeliness of the application
  • An appellate court will not normally interfere with the exercise of a tribunal's or court's discretion on adjournment unless it is shown the discretion was not exercised judiciously
  • The right of appeal must be balanced against the opposing party's right to have its case determined without unreasonable delay; proceedings should not be hindered without just and sufficient cause

Court orders

#
  1. 1.The application dated 24th September 2018 is dismissed with costs to the Respondents

The bench

#

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

majority

Wrote the judgment

On appeal from
National Environment Tribunal
NET Appeal No. 196 of 2016
Jurisdiction invoked
Section 130(4) of the Environmental Management and Co-ordination Act (EMCA); Order 42 Rule 6(1) and (2) of the Civil Procedure Rules

Relief refused

#

Stay of proceedings in NET Appeal No. 196 of 2016 pending the hearing and determination of the Appeal

The Tribunal proceedings had effectively concluded; granting stay would contravene the expeditious disposal principles under Article 159 of the Constitution, and the Appellants' right of appeal remains unfettered with remedies available under Section 130(4) of EMCA

p. 4

Costs

The application dated 24th September 2018 is dismissed with costs to the Respondents.

Quotable passages

#

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 circumstances of this case, I find and hold that the grant of stay of proceedings in a matter already concluded by the Tribunal while the Appellants' right to appeal remains unfettered would go contrary to the principles enunciated under Article 159 of the Constitution in regard to the expeditious disposal of such proceedings.
p. 4Refusal of stay of proceedings
The application dated 24th September 2018 is dismissed with costs to the Respondents.
p. 5Final orders/disposition
Whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice.
p. 3Test for stay of proceedings
an appellate Court will not normally interfere with the exercise of such discretion unless it has been shown that the discretion was not exercised judiciously
p. 3Non-interference with discretionary decisions on adjournment

Issues in the judgment

#
minor

The ruling states the matter 'was pending the filing of Written Submissions and subsequent delivery of Judgment' at paragraph 14, yet paragraph 30 refers to 'a matter already concluded by the Tribunal' - the precise procedural status of the Tribunal proceedings is expressed inconsistently

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Save Lamu & 5 others v National Environmental Management Authority (Nema) & another [2019] KEELC 4739 (KLR)", Case Analysis (2019). NET Appeal No. 196 of 2016 - Notice of Motion dated 24th September 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4739/eng@2019-01-24

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