Court declines to overturn tribunal order in sugar factory row

July 16, 2015
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Justice S.M. Kibunja found that the court would infringe on the mandate of the tribunal should it proceed to hear and determine the petition filed by Busia Sugar Industry Limited and Africa Polysack/FILE
Justice S.M. Kibunja found that the court would infringe on the mandate of the tribunal should it proceed to hear and determine the petition filed by Busia Sugar Industry Limited and Africa Polysack/FILE
NAIROBI, Kenya, July16 – The High Court in Busia has declined to issue an injunction against a National Environment Tribunal order halting the construction of a sugar factory in Busia pending the determination of an appeal filed before it.

Justice S.M. Kibunja found that the court would infringe on the mandate of the tribunal should it proceed to hear and determine the petition filed by Busia Sugar Industry Limited and Africa Polysack.

He advised the complainants to present their grievances to the tribunal before seeking the court’s intervention.

“The parties should pursue any issue related to the appeal with the respondent. The party or parties who may thereafter not be satisfied with the decision the tribunal will make may move the court in accordance with the provisions of the Law,” he ruled.

Busia Sugar Industry Limited and Africa Polysack moved to court after the tribunal ordered them to cease construction pending the hearing and determination of an appeal challenging NEMA’s decision to issue them with an Environmental Impact Assessment (EIA) licence.

“The tribunal has received an appeal from Kenneth Okuku Olulu against NEMA’s decision to issue you with an EIA licence,” it notified Busia Sugar Industry Limited and Africa Polysack.

In their petition to the High Court, Busia Sugar Industry Limited and Africa Polysack accused the tribunal of ordering them to cease construction without giving them a hearing. A decision, they argued, which went against the rules of natural justice.

“The counsel submitted that as the licence complained of was issued in December, 2013 and resources in terms of millions of shillings has been utilised in the ongoing constructions,” Kibunja recounted.

They also called into question the wording of the tribunal’s cease and desist order and its authenticity but Kibunja found it binding.

“The letter was an administrative communication on behalf on behalf of the Tribunal which as a matter of course, demands stoppage of the activities relating to the subject matter of the appeal filed. The letter is therefore not amendable to judicial review,” Kibunja found.

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