London Distillers (K) Limited v National Environment Management Authority(NEMA) & another [2022] KENET 728 (KLR)

London Distillers (K) Limited v National Environment Management Authority(NEMA) & another (Tribunal Appeal 21 of 2019) [2022] KENET 728 (KLR) (Environment and Land) (28 September 2022) (Ruling)

Neutral citation: [2022] KENET 728 (KLR)

Republic of Kenya

In the National Environment Tribunal - Nairobi

Environment and Land

Tribunal Appeal 21 of 2019

Mohamed S Balala, Chair, Christine Mwikali Kipsang, Vice Chair, Bahati Mwamuye, Waithaka Ngaruiya & Kariuki Muigua, Members

September 28, 2022

Between

London Distillers (K) Limited

Appellant

and

National Environment Management Authority(Nema

1st Respondent

Edermann Property Limited

2nd Respondent

Ruling

(On the 2nd respondent’s notice of motion application dated November 3, 2020 and the appellant’s notice of preliminary objection dated November 23, 2020) 1. Before this tribunal is the 2nd respondent’s notice of motion application dated November 3, 2020 and the appellant’s notice of preliminary objection dated November 23, 2020. The 2nd respondent’s application seeks to cite counsel for the appellant and two officers of the appellant for contempt in relation to the averments contained in the memorandum of appeal filed before the Environment and Land Court sitting in Machakos in Machakos ELC CA No E077 of 2020: London Distillers (K) Limited v National Environment Management Authority & Edermann Property Limited. That appeal to the superior court stems from the appellant being displeased with the entire judgement of this tribunal in this matter.

2. The appellant opposed the 2nd respondent’s contempt application through a notice of preliminary objection dated November 23, 2020. The appellant contended that the contempt application is outside the jurisdiction of this tribunal, is res subjudice of the proceedings of the superior court, is unconstitutional, is in contravention of the doctrine of litigation and qualified privilege, and is an abuse of the proceedings of this tribunal.

3. The 1st respondent did not participate.

4. This tribunal is a subordinate court established under an Act of parliament. The 2nd respondent’s contempt application invites this tribunal to examine the pleadings filed in the superior court with appellate jurisdiction over our decisions and to thereafter inquire into whether the averments within that appeal are contemptuous of this tribunal.

5. While Kenya has a wide and vibrant legal order that permits a broad range of actions, the supervision of superior courts by subordinate courts is not one which is known to our legal order. It is not the province of this tribunal to examine the pleadings filed in the superior court or to enquire if pleadings or proceedings in the court above may or may not constitute contempt of the tribunal.

6. We agree with the appellant that the 2nd respondent’s contempt application is wholly without basis and entirely incapable of being determined by this tribunal. Accordingly, it is just and proper that the appellant should have the costs of application.

ORDERS 7. The 2nd respondent’s notice of motion application dated November 3, 2020 is dismissed and the appellant’s notice of preliminary objection dated November 23, 2020 is allowed.

8. Costs of the application are awarded to the appellant as against the 2nd respondent.

DATED AND DELIVERED AT NAIROBI, THIS 28TH DAY OF SEPTEMBER 2022MOHAMMED BALALA ……………………………………………………………………………………………… CHAIRPERSONCHRISTINE KIPSANG………….…….…………………………………………………………………………Vice CHAIRPERSONBAHATI MWAMUYE…………….…………………………………………………………………………………………MEMBERWAITHAKA NGARUIYA…………….………….…………………………………………………………………………. MEMBERKARIUKI MUIGUA…….…………….………….…………………………………………………………………………. MEMBER