Endesk Properties Limited v Director General National Environment Management Authority & another (Tribunal Appeal 12 of 2023) [2023] KENET 1251 (KLR) (14 December 2023) (Ruling)
Neutral citation:
[2023] KENET 1251 (KLR)
Republic of Kenya
Tribunal Appeal 12 of 2023
Emmanuel Mumia, Chair, Winnie Tsuma, Vice Chair, Kariuki Muigua, Duncan Kuria & Ronald Allamano, Members
December 14, 2023
Between
Endesk Properties Limited
Appellant
and
Director General National Environment Management Authority
1st Respondent
Kopoa Developers Limited
2nd Respondent
Ruling
1.Before the Honorable Tribunal is the Applicant’s Application dated 9th November 2023 seeking the following orders:i.The Honorable Tribunal conducts a site visit of the ongoing construction by the 2nd respondent pending its final determination of the Appeal herein.ii.The costs of the Application be borne by the Respondents.
2.The Application is supported by the affidavit of Reffin Turana sworn on 9th November 2023. The 2nd respondent is opposed to the Application through its Replying Affidavit sworn by Liu Jiangang on 1st December 2023.
3.The Application was canvassed by way of written submissions, and in that regard, the Applicant filed its submissions dated 8th December 2023 while the 2nd respondent filed its submissions which are undated.
4.Having considered the Applicant's Application together with the supporting affidavit thereto, the 2nd Respondent’s Replying Affidavit and the parties’ respective submissions, the Tribunal is of the firm view that the sole issue arising for determination is Whether the Applicant is entitled to the orders sought.
5.The Power of the Tribunal to conduct a site visit is provided for under Rule 22(6) of the National Environmental Tribunal Procedure Rules, 2003. The said Rule provides as follows:
6.In advancing it case for a site visit, the Applicant argues that one of the issues for consideration in this appeal is whether the ongoing construction is observing the regulation on plot density to estimated plot ratio. As such, the Appellant argues that a site visit will help the Tribunal to ascertain the facts on the ground before reaching its final decision in the matter.
7.In opposing the Application, the 2nd respondent argues that all parties were granted ample opportunity to present their evidence, and as such, allowing a site visit at this juncture will serve to introduce new evidence, and the same would be prejudicial to its position and in any event, the Applicant has not sought to re-open its case. Further, the 2nd respondent argues that the Application is a fishing expedition, and the Tribunal should not be drawn to the evidentiary quest. Lastly, the 2nd respondent posits that the role of the Tribunal is adjudicative, not investigative.
8.In addressing our minds to the 2nd Respondent’s arguments, the Tribunal notes that as provided under Section 26(1) of EMCA it is not bound by strict rules of evidence. This is in line Article 159(2)(d) of the Constitution which provides that the justice should be administered without undue regard to procedural technicalities.
9.Regarding the argument that the Tribunal’s role is adjudicative and not investigative, it is the Tribunal finding that the same is misguided. That line of argument is not appreciative(sic) of Section 126(2) of EMCA which clothes the Tribunal with inquisitorial powers. The said provision provides as follows:
10.From the foregoing provision, it is clear that the Tribunal is not just a passive observer. The Tribunal is clothed with fact finding powers, and in our view one of the ways through which the Tribunal can exercise this power is by conducting a site visit. Further, observation of the site will help the Tribunal better understand the dispute before making its final decision on the appeal. As stated by the Court in Ibrahim Musa Mohamed v Amina Hassan Suleiman & 6 others [2018] eKLR;
11.In the premises, the Tribunal finds the Applicant’s Application dated 9th November 2023 to be meritorious and the same is hereby allowed in the following terms:a.The Tribunal to conduct a site visit of the ongoing construction by the 2nd respondent on 11th January 2024.b.In the meantime, in order to preserve the subject matter of the suit any further construction on the suit property be stopped pending the delivery of the Judgment,c.Each party to bear their own costs.
DATED AND DELIVERED AT NAIROBI, THIS 14TH DAY OF DECEMBER 2023EMMANUEL MUMIA - CHAIRMANWINNIE TSUMA - VICE-CHAIRKARIUKI MUIGUA - MEMBERDUNCAN KURIA - MEMBERRONALD ALLAMANO - MEMBER