Top court throws out case against Kibos Sugar

The Supreme Court has dismissed a petition by three Kisumu residents seeking to have Kibos Sugar and Allied Industries Limited shut for polluting River Nyando.

The residents who sued the company are Benson Ambuti Adega, Erick Ochieng and Bether Atieno Opiyo.

The Court of Appeal had dismissed a suit in which the petitioners accused the private miller of discharging raw effluent into local rivers endangering the lives of millions of locals depending on the water resource.

In the Court of Appeal ruling, justices Asike Makhandia, Patrick Kiage and the late Otieno Odek ruled that there was no evidence adduced to the Environment and Lands Court to prove any danger the pollution of local rivers paused to residents.

In the lower court, Justice Stephen Kibunjia ruled that the National Environmental Management Authority had issued the miller with an Environment Impact Assessment licence without carrying out a study.

Dissatisfied by the ruling at the Court of Appeal, they proceeded to the Supreme Court and in their submissions filed on June 12, 2020, the petitioners said that the grounds adduced in the petition were conclusive to show that they warranted a hearing and determination.

But the respondents in the case who raised preliminary objections before the Supreme Court were Kibos Distillers Limited, Kibos Power Limited, Kibos Sugar and Allied Industries Limited, county government of Kisumu and Kenya Union of Sugar Plantation and Allied Workers.

In the objections, the respondents primarily challenged the jurisdiction of the Supreme Court to hear and determine the instant petition.

They also said that the issues in contention before the Court of Appeal were the jurisdiction of the Environment and Land Court to hear and determine the allegations before it.

The appellate court found that the trial court was not vested with the requisite jurisdiction to hear the matte that it usurped the jurisdiction of both the National Environmental Complaints Committee and the tribunal, which were the two institutions established under statute to hear and determine the issues raised by the petitioners.

Supreme Court judges including David Maraga, Philomena Mwilu, Mohamed Ibrahim, Smoking Wanjala, Njoki Ndung’u and Isaac Lenaola upheld the preliminary objections by the five respondents.

“The petition is hereby struck out save that, noting the nature of the matter, the petitioners are at liberty to pursue their claims at the appropriate forum, taking guidance from this judgment and that of the Court of Appeal,” the judges said in the ruling.

According to the judges, it was clear that the only issue for determination was whether the Supreme Court has the jurisdiction to hear and determine the instant petition.

According to them, the jurisdiction of the court was challenged primarily on the premise that the court had usurped the mandate of legislatively constituted bodies and conferred upon itself powers that it did not have.

According to the judges both the two courts made determinations primarily on an interrogation and adjudication of statutory provisions and minimal reference to the Constitution.

They added that once the Court of Appeal had determined that the Environment and Lands Court did not have the jurisdiction to hear and determine the issues before it, it should have held that any determination made was void, and that the appellate court therefore and with respect failed to properly exercise its discretion and supervisory mandate in this instance.

Each party is expected to bear its own cost.